Direct Effect || Legal Effect of Directives

Question 1

Art 258

Answer 1

Commission can bring an enforcement procedure against MS –> originally treaty only provided for public enforcement of EU law

Question 2

Costa

Answer 2

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?

Question 3

Van Gend en Loos

Answer 3

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!

Question 4

Private individuals = surrogates of EU law

Answer 4

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

Question 5

CJEU judge Pescatore on the doctrine of direct effect

Answer 5

“Infant disease” of Community law –> too political a concept, introduced too early

Question 6

Art 288: EU legal instruments derivative of treaty

Answer 6

Regulations, directives decisions –> Van Gend did not apply to them

Question 7

Van Gend criteria

Answer 7

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

Question 8

Defrenne v Sabena

Answer 8

If the principle is clear enough, ambiguous language of a treaty provision will not stop it from having direct effect

Question 9

Impact v Minister of Agriculture and Food

Answer 9

Extended Defrenne principle: even if treaty provision was BOTH, ambiguously phrased and subject to national implementing measure (2 Van Gend criteria)

Question 10

Weiler on the loosening of Van Gend criteria

Answer 10

Conscious choice politically in the years of so-called “legislative sclerosis” after the 1966 Luxembourg Accords

Question 11

CURRENT Van Gend criteria that remain in place

Answer 11

Treaty provision must be sufficiently clear, precise and unconditional

Question 12

3 areas of EU primary law

Answer 12

Treaty Articles, “general principles”, Charter of fundamental rights

Question 13

Are treaty article directly effective?

Answer 13

YES - both vertically (Van Gend) and horizontally (Viking Line)

Question 14

Are “general principles” directly effective?

Answer 14

YES - both vertically and horizontally –> to be treated as treaty articles (Art 6(3))

Question 15

Can general principles be horizontally directly effective?

Answer 15

Yes. Mangold (general principle of non-discrimination upon grounds of age)

Question 16

Swedex

Answer 16

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)

Question 17

Juergen Roemer v Freie und Hansestadt Hamburg

Answer 17

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

Question 18

Does the Charter of Fundamental Rights have direct effect?

Answer 18

Vertically - YES (Art. 51 of the Charter)

Horizontally - UNCLEAR: relatively recent, was suggested in AMS but no clear pronouncement

Question 19

Secondary law - direct effect

Answer 19

Decisions and Regulations and of course Directives

Question 20

Can regulations be directly effective?

Answer 20

Yes, both vertically (Art 288) and horizontally (Antonio Munoz)

Question 21

Can decisions be directly effective

Answer 21

Yes (Art 288)

Question 22

Art 288 on directives

Answer 22

Shall be binding as to result that is to be achieved - leave national authorities choice of from an method

Question 23

CONSIDERATION: directives

Answer 23

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

Question 24

Reasons directive should be vertically directly effective anyway, despite CONSIDERATION

Answer 24

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)

Question 25

Van Duyn (Dutch national - scientology)

Answer 25

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

Question 26

Van Duyn and Ratti: transposition principle

Answer 26

Direct effect AFTER implementation period ends (operating from the deadline)

Question 27

Dashwood on Ratti and Van Duyn

Answer 27

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

Question 28

Before implementation period ends: impact of directives

Answer 28

Negative duty on States and NC not to take any measures in intervening period that are like compromise the result sought by directive

Wallonie!

Question 29

Marks and Spencers v Her Majesty’s Commissioner for Customs and Exercise

Answer 29

It is not enough that a State transposes directive correctly into national law, it must also apply it in practice

Question 30

Marshall

Answer 30

Directives have NO HORIZONTAL DIRECT EFFECT - direct effect of a directive applies only against the state not an individual

Question 31

Faccini Dori

Answer 31

Confirmed Marshall: directives should only have vertical direct effect
Directives have special character that would be lost if horizontally effective

Question 32

Reasons given in Marshall why directives shouldn’t have horizontal direct effect

Answer 32

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)

Question 33

Craig and de Burca: CONTRA textual argument for denying directives horizontal effect

Answer 33

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?

Question 34

CONTRA horizontal effect would erode distinction between directives and regulations

Answer 34

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

Question 35

CONTRA Wells argument (horizontal effect would undermine legal certainty)

Answer 35

Van Gend criteria would still have to be passed for horizontal effect

Question 36

Mitigation of Marshall - 5 ways

Answer 36

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

Question 37

1) Foster

Answer 37

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!

Question 38

Jacobs AG on Foster

Answer 38

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

Question 39

Foster test in action: 3 cases

Answer 39

NUT v St Mary’s Church of England School
Griffin v South West Water
Doughty v Rolls Royce

Question 40

NUT v St Mary’s Church of England School

Answer 40

Mere fact of legal obligation –> special powers

Question 41

Griffin v South West Water

Answer 41

Fulfilled 2/3 criteria: special powers and administered public service –> didn’t matter that there was no state control

Question 42

Doughty v Rolls Royce

Answer 42

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

Question 43

2) Van Colson

Answer 43

Indirect effect/harmonious interception: NC must interpret national law in light of directive - Art 4(3) loyalty undertaking
–> clearly sidestepping prohibition on horizontal effect

Question 44

Adeneler

Answer 44

Clarification of Van Colson interpretative obligation: AFTER transition period

Question 45

The scope of Van Colson

Answer 45

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

Question 46

Indirect effect cases

Answer 46

Van Colson
Adeneler
Marleasing 
Pfeiffer
Kolpinghuis

Question 47

3) What is incidental horizontal effect?

Answer 47

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

Question 48

Signalson

Answer 48

Incidental horizontal effect - radical effect on the character of legal disputes

Question 49

Unilever

Answer 49

Incidental horizontal effect

Question 50

4) Interaction of directives with general principle

Answer 50

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

Question 51

5) Regulations conditional on compliance with directives

Answer 51

Marshall: directives can have horizontal direct effect when compliance with a regulation is made conditional on compliance with directive

Question 52

Hauptzollamt Hamburg Jonas

Answer 52

Applied regulations conditional on compliance with directives doctrine

Question 53

Jacobs AG’ critique of incidental direct effect

Answer 53

Unfairly penalising individuals who had relied on provisions of national law - legal uncertainty!

Question 54

Dashwood

Answer 54

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?