Direct Effect Flashcards
Principle of supremacy
EU law is supreme over national law of Member States
Source of supremacy principle
Van Gend en Loos
Purpose of the supremacy principle
If not, terms and spirit of the Treaty will be overriden (Costa v ENEL)
National courts’ obligations
a) Apply Community law in entirely and protect rights conferred on EU citizens
b) Set aside any provision of national law which may conflict, whether prior or subsequent to Community rule
(Simmental (No. 2))
Prevalence of supremacy principle during proceedings
Pending final determination, national court must suspend national legislation (Factortame (No.2))
Scope of supremacy principle
Extends beyond national courts, to admin agencies, in disapplying conflicting national law (Larsy)
Role of national Constitutional Courts
National courts must refuse to apply conflicting provisions of national law, irrespective of judgement of national Constitutional Court (Filipiak)
Direct effect doctrine
Ability of individuals to invoke provisions of Community law (which create rights and obligations for individuals) in national courts (Van Gend en Loos)
Vertical versus horizontal direct effect
Vertical: against MS by Commission/individual
Horizontal: against another individual/entity
Conditions for enforcement of direct effect doctrine
Unconditional and sufficiently precise (Becker)
Definition of ‘sufficiently precise’
Unequivocal terms (Marshall I)
Definition of ‘unconditional’
Depend upon no further action or discretion by national or EU authorities (Molkerei-Zentrale)
Application of conditions for direct effect
a) Relaxed (Reyners v Belgium)
b) Strict (Comitato v Regione Lombardia)
Overview of applicability of direct effect doctrine
Treaty Articles: VDE + HDE
Regulations: VDE + HDE
Decisions: VDE + HDE
Directives: VDE only
Vertical direct effect of Treaty Articles
Van Gend en Loos
Horizontal direct effect of Treaty Articles
Defrenne v Sabena (No.2)
Vertical and horizontal direct effect of regulations
Article 288 TFEU
Leonisio v Italian Ministry for Agriculture
Vertical and horizontal direct effect of decisions
Article 288 TFEU
Grad v Finanzamt
Vertical direct effect of directives
Useful effect approach (Van Duyn v Home Office)
Extra condition for vertical direct effect of directives
Implementation period must have expired (Pubblico Ministero v Ratti)
Obligations before the expiry of the implementation period
Directive can be invoked even after it has been implemented by the Member States, to determine if the implementing authorities have acted within their powers (Verbond van Nederlands)
Member States have an obligation NOT TO ADOPT measurs that could seriously undermine the result of the Directive (Wallonie, Mangold)
Starting point for horizontal direct effect of directives
No direct effect, strict estoppel approach (Marshall I, as confirmed in Faccini Dori)
Rationale against horizontal direct effect for directives in Marshall I
a) Judges: brief and literal interpretation of Article 288 TFEU - addressed to Member States only
b) Advocate-General
- Directives are not published, undermining legal certainty
- Blur distinction between regulations and directives
Rationale against horizontal direct effect for directives in Faccini Dori
Judges: Difference between regulations and directives
Horizontal direct effect by the state
State cannot enforce against other individuals (e.g. criminal proceedings) (Luciano Arcaro)
Arguments by AG Lenz in Faccini Dori IN FAVOUR OF horizontal direct effect
a) Rationale and manner of HDE are fundamentally different from when directives have vertical direct effect
b) Equality of conditions of competition
c) Prohibition of discrimination
d) Directives meant to affect relations between private persons, failure to transpose directive deprives it of ‘useful effect’
Arguments by AG Lenz in Faccini Dori AGAINST horizontal direct effect
a) Wording of Article 189 and nature of directives are binding only on MS, only re results to be achieved
b) Burden on third parties incompatible with rule of law
c) Democratic deficit increases where national parliaments are bypassed
d) Recognition of HDE would increase MS’ carelessness in transposing them
Overview of ways to circumvent lack of HDE
a) Definition of the state
b) General principles
c) Incidental effect
d) Indirect effect
e) State liability for non-implementation
Emanation of the state
Aimed at preventing the State from benefitting from failure to comply with EU law (Marshall I)
Definition of the state
All organs of administration, including decentralised admin authorities such as municipalities (Fratelli)
Test for definition of the state
Provide public service under State control and has special powers (Foster v British Gas)
Examples of successful Foster criteria
a) Privatised industry (Griffin v South West Water Co)
b) Constitutionally independent authorities (Johnston v CC of RUC)
Examples of unsuccessful Foster criteria
a) Corporations that provide service to State but not public service (Doughty v Rolls Royce)
Relaxation of Foster test i.e. easier to find emanation of the state
Foster test is not a statutory definition (St Mary’s Church of England Aided School)
Application of relaxed Foster test
a) Special powers (Kampelmann)
b) Public service and therefore has special powers; presence of state control not required (Rieser v Asfinag)
c) Hospital in receipt of public funding (Vassallo)
d) Confirms Kampelmann; foster requirements shoudl be read disjunctively and don’t need to satisfy all Foster requirements (Farrell v Whitty)
Rationale for relaxation of Foster test from AG Sharpston in Farrell v Whitty
Legal nature of body is irrelevant
Day to day actual control not required
No funding required – ownership or control sufficient
Duties in public interest (additional powers) sufficient
General principles
Inferring general principle encapsulated within the Directive, which is horizontally effective
(Mangold, confirmed in Kucukdeveci for the general principle of equal treatment against age discrimination)
Limitation of general principle approach
Grounds of obesity (not established to be a disability that is covered by principle of equal treatment) (Kaltoft)
Incidental effect
When one party suffers legla detrimental and other party gains legal advantage from the terms of an unimplemented directive
Scenario for incidental effect
Conflicting national laws being relied upon –> court sets aside national law that contravenes Directive –> plaintiff has a successful claim based on the national law that prevailed
Incidental effect
When one party suffers legal detrimental and other party gains legal advantage from the terms of an unimplemented directive
Rationale for incidental effect
Exclusionary effect that flows from primacy of EU law (AG Saggio, Oceano Grupo)
Source of incidental effect
CIA Security International (Unfair practices for alarm systems in Belgium)
Rationale for incidental effect
Exclusionary effect (AG Saggio, Oceano Grupo)
Obligation of the courts in incidental effect
Interpretative obligation to achieve result by the directive, even in proceedings between individuals (Centrosteel)
Extension of courts’ obligation
The court must do whatever lies in their jurisdiction re the whole body of rules, not just national law, to achieve the results of a directive (Pfeiffer)
Exclusionary effect vs substitutionary effect
Directive do not directly substitute national provision and are not the source of the rights, just used to knock down the other party’s defence
Source of the rights = prevailing national law that was not set aside in conflict
Criticism of incidental effect
Unfairness of burden borne by third parties that suddenly have new obligations (Arcor v Germany; pro-claimant; adverse third party effects do not justify deprivation of rights)
Indirect effect
National courts are required to interpret national law in light of the wording and purpose of the directive (Von Colson)
MUST HAVE A PRE-EXISTING NATIONAL LAW THAT SEEMS TO CONTRAVENE EU LAW – cannot apply for non-implementation
Scope of interpretative obligation in indirect effect
Only where the internal law is reasonably capable of that interpretation (Marleasing)
Extension of interpretative obligation
a) Private disputes (civil proceedings) (Centrosteel)
b) Holistic interpretation re the whole body of law, not just the Directive (Pfeiffer)
c) Applies even after implementation (Marks and Spencer)
d) Regulations (Grimaldi, Rolex)
What happens when national law is not reasonably capable of interpretation that conforms with directive
Not required to override language if it clearly conflicts with directive (contra legem interpretation)
(Wagner-Miret, Impact)
Discarding the ‘as far as possible’ approach
Broad interpretation of “work accident” (Dominguez - work accident)
Courts “required” to interpret the provision consistently with EU law (Spedition Welter - motor insurance, Dansk Industri)
Critique of indirect effect
Wide ambit of interpretative obligation (Chalmers, Davies, Monti)
National courts performing legislative function (AG Saggio in Oceano Grupo)
Critique of indirect effect
Wide ambit of interpretative obligation (Chalmers, Davies, Monti)
National courts performing legislative function (AG Saggio in Oceano Grupo)
Limit to interpretative obligation
Criminal liability (Kolpinghuis, Luciano Arcaro)
