direct effect of Eu law

Question 1

What is the foundational ECJ
jurisprudence on direct
effect of Union law?

Answer 1

*Case 26,62, Van Gend en Loos

Question 2

What are the main arguments
underlining direct effect of Union law
in Van Gend en Loos?

Answer 2

• Textual references in the preamble
• Meaning and purpose of the preliminary ruling procedure
• Vision of the kind of legal community the Treaties
  appeared to create: Objective of the EEC Treaty to
  create a Common Market directly affects interested
  parties
  → EEC/EU = new supranational legal order, for the
  benefit of which the MS have restricted their sovereign
  rights, albeit in limited areas, and whose subjects are not
  only the MS but also their nationals.

Question 3

What is meant by the autonomy
of Union law?

Answer 3

*Case 26/62, Van Gend en Loos: Union
law, as a legal order sui generis, is
independent of both international law and
national law

Question 4

What are the conditions of direct
effect of Union law?

Answer 4

*Individual right or obligation
*Sufficiently clear and precise wording
*Without restriction or further conditions
barring its immediate enforcement

Question 5

Can directives have direct
effect?

Answer 5

*In principle: no → they are only binding,
as to the result to be achieved (Art. 288
(3) TFEU
*There are exceptions

Question 6

When can directives have direct
effect?

Answer 6

*Case 41/74, Van Duyn: The transposition
deadline has passed and the directive
has not been transposed or has not been
transposed correctly, or the Member
State has transposed the directive
correctly but it is not applied correctly in
practice
→ Directly effect against the MS

Question 7

A is a Belgian non-profit environmental
association. It seeks the annulment of a
recent Decree of the Walloon Regional
Government of 9 April 1992 on toxic or
hazardous waste in Belgium. According to the
applicant, the decree is contrary to the
provisions of Directive 91/689 on toxic and
hazardous waste, the transposition period of
which had not yet expired. Belgium has
issued the Decree after the adoption of
Directive 91/689. Can A rely on EU law?

Answer 7

• The transposition deadline is intended to give MS
  the time necessary to adopt the transposition
  measures → no need to transpose directive early
• But: MS must refrain from adopting provisions during
  this period which are likely to seriously jeopardise
  the objective prescribed in the directive (standstill
  obligation or pre-emptive effect of directives)
  (Case C-129/96, Inter-Environnement Wallonie)
• This implies: Courts may not, before the expiry of the
  transposition period, interpret national law in such a
  way as to prejudice the attainment of the objectives
  of the directive (Cases C-261 and 299/07, VTBVAB)

Question 8

Can directives have direct
effect between private parties
(horizontal)?

Answer 8

*Generally: No, Case 152/84, Marshall I
and Case C-91/92, Faccini Dori
*Why?
◦Main argument: Private parties have no
influence over the correct
implementation of directives in MS law

Question 9

What is meant by “indirect effect of
directives”?

Answer 9

• Interpretation of national law in light of an EU
  directive, Case 14/83, Van Colson
• No contra legem interpretation (Case C-334/92,
  Wagner Miret)
  ◦But…. Where does contra legem begin?, See
  Case C-404/06, Quelle and BGH, Urt. v.
  26.11.2008, VIII ZR 200/05, Quelle
• Indirect applicability may lead to results similar
  to horizontal direct effect (see Case C-240/98,
  Océano Grupo)