Direct effect & supremacy Flashcards
Case 26/62 Van Gend en Loos
the creation of Direct Effect (DE) - vertical DE of treaty provisions
Against DE: Advocate General + 3 judges (Lux, Germany, Netherlands) // For DE: 4 judges (Italy * 2, Belgium, France)
=> Treaty provisions have DE in national law = if clear and unconditional
The ECJ: “The community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights, albeit within limited fields, and subject which comprise not only member states but also their nationals. Community law therefore not only imposes obligation on individuals but is also intended to confer them rights that become part of their legal heritage”
teleological construction of the Treaties
Van Gend en Loos (company) imported chemicals from Germany into the Netherlands. It was charged an import duty and argued that contrary to Article 12 (EEC Treaty, old version = basically says that new custom duties will not be charged). Reference from Dutch Court to the CJEU:
Case 43/75 Defrenne v Sabena [1976] ECR 455
horizontal direct effect of treaty provisions
The Treaty provision can have horizontal DE.
Court: contends that article 119 has a double aim = common market but also ensuring social progress. Thus, equality is a foundation of the Community. The provision is: “equal work for equal pay”.
=> “In such situation, at least, article 119 is directly applicable and may this give rise to individual Rights which the courts must protect.”
Under Belgian law, female flight attendants were obliged to retire at the age of 40, unlike their male counterparts. Defrenne had been forced to retire from Sabena in 1968.
Lawyer: Eliane Vogel-Polsky refers to article 199 CEE (now 157 TEU): men and women should receive equal pay for equal work.
Should article 119 (1) have direct effect?
C- 438/05 International Transport Workers Federation v Viking Line ABP
horizontal direct effect of treaty provisions
The ECJ held that:
up to national court to ultimately answer the question, it was possible that collective action taken by workers to protect their interests could be unlawful because it infringed the employer’s interests under TFEU article 56. It could not be the case, in this situation because the ECJ felt that the jobs and conditions of the workers’ employment were not ‘jeopardised or under serious threat’ [81]
heavily criticised for overlooking fundamental rights
company decided to move operations from Finland to Estonia. The Finnish trade Union claimed it was a bad decision because leads to the loss of jobs => strike.
Company held that the strike violated the Treaty on Free movement.
Case C-41/74 Van Duyn
vertical Direct effect (directives)
Both Directive 64/221/EC and Article 45 TFEU have direct effect in national law
But the UK’s decision is legal and within its discretion under EU law.
=> NB: for directive DE only starts when the period for implementing the directiev has passed and the MS has not done it or incorrectly
establishes the direct effect of directives.
Dutch woman gets a job in the UK to work as a secretary for the Church of Scientology. The UK refused her entry.
Van Duyn claimed that the Home Secretary infringed her right under Article 45 TFEU and Free Movement of Workers Directive 64/221/EC by denying her the right to work at the Church of Scientology
Article 45 provided for the freedom of movement for workers but under Article 45(3) limitations justified on the grounds of public policy, public security or public health are allowed
Directive 64/221/EC Article 3(1) also set out that a public policy provision had to be ‘based exclusively on the personal conduct of the individual concerned’
+ In this case, the UK had not implemented the directive
Case C-6/64 Costa v Enel
supremacy of EU law
EU law overrides national law (even if the law was passed after).
The ECJ:
“By contrast with ordinary international treaties, the EEC Treaty has. Created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the MS and which their courts are bound to apply.”
“By creating a Community of unlimited duration, having its own institutions, its own personality, real powers from a limitation sovereignty or a transfer of pwrs from the states to the Community, the MS have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.”
establishes the principle of supremacy (of EU law)
EEC Treaty (article 37): No monopolies on goods ( bc it goes against the Common Market)
1962: Italian Law: Created ENEL implementing a monopoly on electricity by nationalizing electricity companies.
Case C-11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel.
supremacy of EU Law
Solange I
Supremacy of EU Law is unconditional
“ Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law.” [3]
Eu Law overriding fundamental constitutional rights ?
Regulations under the Common Agricultural Policy permitted exports only if an export licence is obtained by paying a deposit which could be forfeited if export is not made during the licence’s validity period
IH did not complete its exports of maize during the period of validity
IH claimed that the licensing system was a disproportionate violation of their right to conduct a business under the German C°.
The German Constitutional Court held that the system of deposits is contrary to the principles of freedom of action and disposition, economic liberty and proportionality under German Law, and that even if it were valid, forfeiture cannot be limited to only cases of force majeure and not all cases where there is no fault
Case C-106/77 Simmenthal
Supremacy - disapplying national law.
Supremacy of EU law implies that national law must be disapplied by the courts w/o necessarily being repealed to avoid to “‘imperil the very foundations of the Community ‘ [18]
=> such charge was a violation of the Treaty.
Simmenthal imported beef for human consumption from France and they had to pay its respective fee importation for public health inspection. About this matter, it was Simmenthal’s opinion that this inspection clearly violated the fundamental principles of Common Market (in this case, free movement of goods). So, Simental brought an action to court with the intention to be repaid for the mentioned illegal (for their point of view) fee. The Court, Pretore di Suza accepted Simmenthal arguments and condemned Administrazione delle Finanze pello Stato (therefore, administrazione) to repay the company. Not satisfied with the decision, Admnistrazione appealed against the order to repay arguing with some rulings by the constitutional jurisdiction regarding the conflict between Community law and National law. The Court suspended and referred a question to CJEU:
Case C-348/96 Calfa
Supremacy of EU Law - horizontal DE
If by exercising criminal law, you violate the fundamental principles ( FM + No discrimination) of the EU therefore entitled to rely on the Treaty to enforce her rights.
Mrs Calfa won = even though Criminal law is within MS competency, how you exercise it is subject to ECJ scrutiny. The Greek courts suspended her deportation for life
goes to Greece but arrested for consuming cannabis on the beach. The Greek Court sentenced her to deportation for life. She challenges the judgment of the criminal court. Criminal law is within the MS competence however tourists are economic actors, but not coming back to Greece violates her right to benefit from the FM of services + discrimination based on nationality.
Case C-43/71 Politi s.a.s. v Ministry for Finance of the Italian Republic.
vertical direct effect (regulations)
regulations have vertical direct effect
Italian law imposed certain charges on products. Politi argues that this policy breaches a EU regulation.
Munoz v Frumar Ltd
horizontal direct effect (regulations)
regulations have horizontal DE
EU regulation set standard for the marketing and sale of fresh fruits and vegetables. Munoz brought a claim against Frumar their competitor arguing taht they weren’t complying with EU standards.
Case 148/78 Ratti
direct effect (directive)
= Directives have direct effect when unconditional and precise and only when their implementation period has expired
The effectiveness of directives would be weakened if persons were prevented from relying on it before in national courts
A member state which has not adopted implementing measures required by the directive in the prescribed period may not rely as against individuals on its own failure to perform the obligations which the directive entails
Ratti argued that he should not have to comply with an Italian law on the labelling of solvents he sold as it was stricter than the standard under two EU directives
Case 152/84 Marshall
horizontal direct effect (directives)
Directives do not have horizontal effect; under Article 288 TFEU, directives are binding only upon ‘each member state to which it was addressed’
Marshall was an employee of an Area Health Authority (AHA) in the UK
She was dismissed at the age of 62 having passed the normal retirement age of 60 for female employees
In contrast, the the normal retirement age of males was 65
She alleged sex discrimination contrary to the Equal Treatment Directive
The government argued that the directive could not be relied upon against the AHA as:
the AHA was acting in a private capacity as an employer, and
directives do not have horizontal effect
