Direct Effect || Legal Effect of Directives Flashcards
Art 258
Commission can bring an enforcement procedure against MS –> originally treaty only provided for public enforcement of EU law
Costa
CJEU became displeased with the discrepancy between access to public and private enforcement mechanisms
ESTABLISHED DIRECT EFFECT
How was the Costa new legal order to take effect if private individuals couldn’t enforce EU rights before NC?
Van Gend en Loos
Brought individuals within the EU legal order.
Direct effect of EU law (as established in Costa ) allowed individuals to invoke EU law before NC
APPLIED ONLY TO TREATY PROVISIONS!
Private individuals = surrogates of EU law
Political ramifications: MS (“guardians of their sovereignty”) unlikely to invoke EU law to the expansion the Court would like. Individuals however more likely to want to advance their rights
CJEU judge Pescatore on the doctrine of direct effect
“Infant disease” of Community law –> too political a concept, introduced too early
Art 288: EU legal instruments derivative of treaty
Regulations, directives decisions –> Van Gend did not apply to them
Van Gend criteria
Treaty provision has to be
1) Clear, precise and unconditional
[2) Not dependent on national implementing measures - booted out in Reyners]
[3) Not containing reservations/exceptions for MS - effectively thrown out by Salgoil]
i.e. treaty provisions must be self-executing
Defrenne v Sabena
If the principle is clear enough, ambiguous language of a treaty provision will not stop it from having direct effect
Impact v Minister of Agriculture and Food
Extended Defrenne principle: even if treaty provision was BOTH, ambiguously phrased and subject to national implementing measure (2 Van Gend criteria)
Weiler on the loosening of Van Gend criteria
Conscious choice politically in the years of so-called “legislative sclerosis” after the 1966 Luxembourg Accords
CURRENT Van Gend criteria that remain in place
Treaty provision must be sufficiently clear, precise and unconditional
3 areas of EU primary law
Treaty Articles, “general principles”, Charter of fundamental rights
Are treaty article directly effective?
YES - both vertically (Van Gend) and horizontally (Viking Line)
Are “general principles” directly effective?
YES - both vertically and horizontally –> to be treated as treaty articles (Art 6(3))
Can general principles be horizontally directly effective?
Yes. Mangold (general principle of non-discrimination upon grounds of age)
Swedex
Reaffirmed Mangold (general principles = horizontally directly effective) but altered it slightly only when general principle falls within scope of EU law (treaty article, directive, regulation)
Juergen Roemer v Freie und Hansestadt Hamburg
Overturned Mangold condition that the transposition period for a directive must have ended for a general principle to be deemed within scope of EU law
Does the Charter of Fundamental Rights have direct effect?
Vertically - YES (Art. 51 of the Charter)
Horizontally - UNCLEAR: relatively recent, was suggested in AMS but no clear pronouncement
Secondary law - direct effect
Decisions and Regulations and of course Directives
Can regulations be directly effective?
Yes, both vertically (Art 288) and horizontally (Antonio Munoz)
Can decisions be directly effective
Yes (Art 288)
Art 288 on directives
Shall be binding as to result that is to be achieved - leave national authorities choice of from an method
CONSIDERATION: directives
Compromises between MS on complex measures, using broad language to leave discretionary room as to their implementation –> usually miss Van Gend criteria necessary for direct effect
Reasons directive should be vertically directly effective anyway, despite CONSIDERATION
Made in Van Duyn and Ratti
1) Functional argument: more effectively enforced if relied upon by individuals (Van Duyn)
2) Textual argument - teleological reading of Art 267: NC can refer directives –> they must be able to be invoke by individual before these courts (van Duyn)
3) Estoppel argument: MS should be precluded from refusing to recognise directives direct effect from their own failure to transpose! (Ratti)
Van Duyn (Dutch national - scientology)
Directives can have vertical direct effect, provided they meet the Van Gend criteria of being clear, precise and unconditional
Note on clarity: same as in Defrenne - as long as the principle is clear
Van Duyn and Ratti: transposition principle
Direct effect AFTER implementation period ends (operating from the deadline)
Dashwood on Ratti and Van Duyn
Directives were directly effective despite their special character under Art 288 discretion (“specific identity”)
Teleological justification: EU law would otherwise be deprived of effectiveness
Textual justification: Art 288 does not prohibit directives from being directly effective
Before implementation period ends: impact of directives
Negative duty on States and NC not to take any measures in intervening period that are like compromise the result sought by directive
Wallonie!
Marks and Spencers v Her Majesty’s Commissioner for Customs and Exercise
It is not enough that a State transposes directive correctly into national law, it must also apply it in practice
Marshall
Directives have NO HORIZONTAL DIRECT EFFECT - direct effect of a directive applies only against the state not an individual
Faccini Dori
Confirmed Marshall: directives should only have vertical direct effect
Directives have special character that would be lost if horizontally effective
Reasons given in Marshall why directives shouldn’t have horizontal direct effect
1) Textual: Art 288 (directive is only binding in relation to each MS to which it is addressed)
2) Horizontal effect would erode distinction between directive and regulations
3) Horizontal effect would undermine legal certainty (Wells)
Craig and de Burca: CONTRA textual argument for denying directives horizontal effect
Courts have manipulated textual readings in other cases:
Viking Line: Treaty articles didn’t EXPLICITLY EXCLUDE horizontal direct effect of treaty articles
Art 288 doesn’t explicitly exclude directive’s horizontal effect –> why the double standard?
CONTRA horizontal effect would erode distinction between directives and regulations
Equally true of vertical direct effect
True distinction between directives and regulations: MS are intended to have a choice as to implementation of directives –> horizontal effect wouldn’t take that away, it would only be a safety mechanisms for individuals should MS FAIL to implement
CONTRA Wells argument (horizontal effect would undermine legal certainty)
Van Gend criteria would still have to be passed for horizontal effect
Mitigation of Marshall - 5 ways
1) Broad definition of the State (Foster) –> blurring the line between vertical/horizontal direct effect
2) Indirect effect (Harmonious interpretation under Van Colson)
3) Incidental horizontal effect
4) Interactions between general principles and directives
5) Interactions between regulations and directives
1) Foster
Marshall had already seen Ms Marshall being able to rely on directive because the Health authority was seen as an organ of the state - individuals against a public employer
FOSTER: EMANATION OF THE STATE TEST (or special powers test)
1) public service
2) State is able to exercise some control over this service
3) SPECIAL POWERS that render it equivalent to a state body (here, having a monopoly over gas-supply)
CJEU suggested this is not rigid!
Jacobs AG on Foster
Broad conception of “State” at odds with the court’s unwillingness to simply give horizontal effect in Marshall
Unfair vicarious liability: Body connected to the state may be held responsible for the state’s failings even though it had no control over the issue
Anti-competition: directives could be enforced against commercial enterprises with some element of sate control but not against their competitors
Foster test in action: 3 cases
NUT v St Mary’s Church of England School
Griffin v South West Water
Doughty v Rolls Royce
NUT v St Mary’s Church of England School
Mere fact of legal obligation –> special powers
Griffin v South West Water
Fulfilled 2/3 criteria: special powers and administered public service –> didn’t matter that there was no state control
Doughty v Rolls Royce
1/3 criteria of emanation of state test won’t do! Rolls Royce was only under state control having been nationalised by government –> no special powers, no public service
2) Van Colson
Indirect effect/harmonious interception: NC must interpret national law in light of directive - Art 4(3) loyalty undertaking
–> clearly sidestepping prohibition on horizontal effect
Adeneler
Clarification of Van Colson interpretative obligation: AFTER transition period
The scope of Van Colson
1) Marleasing: harmonious interpretation applies even where national law predates directive
2) Pfeiffer: interpretive obligation applies to national legal system as a whole
3) Marleasing: Indirect effect doesn’t require interpretation of national law that is contra legem
4) Kolpinghuis: Van Colson cannot be used to apply retrospective penal liability
Indirect effect cases
Van Colson Adeneler Marleasing Pfeiffer Kolpinghuis
3) What is incidental horizontal effect?
An individual cannot rely on national law that is inconsistent with an EU directive in proceedings against another individual, where the effect of applying such national law would be to expose that other party to new legal obligation/liability
Craig and de Burca: ill-defined and conceptually uncertain
Signalson
Incidental horizontal effect - radical effect on the character of legal disputes
Unilever
Incidental horizontal effect
4) Interaction of directives with general principle
Directives will have horizontal effect if their substance relates to a general principle of EU law
Mangold
Swedex
Roemer: remember, Roemer modified Mangold - general principles of EU law only become directly effective now where the transposition period has expired
5) Regulations conditional on compliance with directives
Marshall: directives can have horizontal direct effect when compliance with a regulation is made conditional on compliance with directive
Hauptzollamt Hamburg Jonas
Applied regulations conditional on compliance with directives doctrine
Jacobs AG’ critique of incidental direct effect
Unfairly penalising individuals who had relied on provisions of national law - legal uncertainty!
Dashwood
Internal contradiction within direct effect of directives:
effectiveness vs. specific identity (state discretion)
Marshall = key moment for CJEU to choose BUT instead they emphasised particularity AND created many exceptions => distinction becomes effectively meaningless!
Foster’s broad definition of the state contradicts Ratti’s estoppel reasoning: How can you hold a peripheral state organ’s (St Mary’s School’s) failure responsible for a failure of the state to implement directive?
