Enforcing EU law Flashcards
Van Gend en Loos v Nederlandse Administratie der Belastingen
‘… the [Union] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, [Union] law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage…’
Van Duyn [1974]
The most important case that established directivity effective. EU law does not simply confer obligations upon states, it also confers rights upon nationals of the Member States who can rely on those rights before national courts (here article 28 TFEU). European court of justice. Importer of goods from Germany in Netherland which was charged an import duty because a good was imported from Germany to the Netherland. Free movement case of goods and simply because a good crossed boarders a duty was imposed. Company said this was against article 12 FEU, cannot impose import duties which are meant to move free. The Netherlands held that this was a private entity trying to rely on article 12, the states signed the treaty, companies have no rights in context of international treaties. COJ looked at these new legal orders established by treaty of Rome, yes signing parties are states; however, national courts are obliged to refer a reference to COJ in Luxemburg. what is use of this mechanism established if individuals were not able to use or refer to articles what would be the point of the referencing procedure, this exists to enable individual to rely on these provisions. The legal order established by treaty of Rome is a different type of legal order. It is supposed to give rights and obligations on individuals.
A Treaty provision [which confers right(s) on individuals OR imposes negative obligation(s) on MSs] is capable of direct effect provided it is:
A provision of EU law is capable of direct effect if it meets three conditions:
1. Clear and precise;
2. Unconditional; - if we look at the 4 freedoms, freedom of transfer of goods. Article 34 cannot use in front of national courts.
3. Not dependent upon further action by the MS. – For example prima ficia if we have a provision of a directive, clear precedence and conditional, problem with directive is that it is dependent on future action by member states. It was initially thought that directives could not be directivity effective because of this, but this has now changed.
Direct effective was established first, primacy seems to be the logical first step. If countries were able to depart from obligations what would be point of directives?
Article 45(1) TFEU creates a right of free movement for workers across the EU. Article 45(3) TFEU states that the Member State may limit the exercise of this right on certain grounds. to what extent is article 45 has certain grounds of exemption. Held: article 45 like all other freedoms are fundamental and are unconditional. The fact there is exemption does not mean that it does not have direct effect. Therefore, article 45 citizens could rely on this. Nevertheless, the CJEU held that Article 45 (1) TFEU meets the preconditions for direct effect and could be relied upon by Ms Van Duyn.
An individual or company uses EU law against the state – Vertical effect
When dispute between individuals – horizontal effect
Defrenne v Sabena [1976]
Article 119 EEC [now Article 157 TFEU slightly amended –no reference to the transition stage anymore]: ‘Each Member State shall during the first stage [1958-1962] and subsequently maintain the application of the principle that men and women should receive equal pay for equal work’.
Female air steward claimed equal pay with male cabin crew. Could she rely on ex-Article119 EEC in the national court?
Clear and precise? Yes, the word ‘principle’ indicated the fundamental nature of the right to equal pay – it could not be reduced to the level of a vague declaration.
Unconditional? Yes, Member States are bound to ensure and maintain the principle of equal pay.
No further action? Yes, the very wording of ex-Article 119 EEC imposed on States a duty to bring about a specific result to be mandatorily achieved within a fixed period. Therefore ex-Article 119 was directly effective even though some Member States had not discharged their duty.
Zaera [1987]
Z sought to rely on the objective of ‘raising of the standard of living’ specified in old Article 2 EC [now repealed by the Lisbon Treaty]. The Court of Justice found that Article 2 did not meet the criteria for direct effect:
‘[Owing] to its general terms and its systematic dependence on the establishment of the Common Market and progressive approximation of economic policies, [it] cannot impose legal obligations on Member States or confer rights on individuals’.
Therefore Article 2 EC was not a complete legal obligation – it was not capable of direct effect and could not be relied upon by an individual before a national court.
Amsterdam Bulb BV [1977]
‘[4] [The] direct application of a [Union] regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.
[5] By virtue of the obligations arising from the Treaty the Member States are under a duty not to obstruct the direct effect inherent in regulations and other rules of [Union] law.
[6] Strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of [Union] regulations throughout the [Union]’.
Enka [1977]
‘[Article 288 TFEU] leaves to each Member State the choice of the ‘form and methods’ whereby it is to give effect to a directive, [but] does not allow it the choice of not giving effect to the directive at all, or of giving effect to it only in part … On the contrary [a Member State] that fails fully to give effect to a directive is in breach of the Treaty’.
Mangold v Helm [2005]
suggests a positive obligation on the national court to disapply national law before the time limit has expired.
Marks & Spencer plc v Commissioners of Customs & Excise [2002]
Post-implementation individuals can rely on directly effective provisions in directives where implementation is correct but it has not been applied in such a way as to achieve the result intended by the directive
Pubblico Ministero v Tullio Ratti (1979)
EU legislation/directive that harmonised labelling, but republic had not implemented this directive, therefore although Tullio Ratti complied with EU labelling laws he was fined nationally because he conflicted with national law. Italy had not implemented the directive yet, the national court referred case to COJ. If we stick to established three conditions, the individual has to comply with national law so fine stands but court said the majority of secondary EU law are governed by directives because it gives the breathing space for national states to comply with the provisions, this is why we use directives, if we acknowledge that directives are never capable of direct effect, the court said such a result is not accepted, Italy could not rely on fundamental failure to protect itself against a situation. As a matter of principle certain directives should be relied upon by individuals. Directives, because addressed to member states as opposed to regulations and not officially published in journal, content of directive is not opening known, unless national state had implemented this.
Provisions of directives can only be used against the state, not used against another legal person. This is because:
¬ Directives only binding on Member States to whom they are addressed
¬ Directives do not of themselves impose obligations on individuals. This does not mean that the content of the directive does not create new rights and obligations on individuals. Directives create new rights and obligations.
Marshall I
Enactment of directive, period of implementation, clear and precise provision becomes effective as soon as period of implementation occurs. This occurs when member state has not implemented directive at all (Publlico Ministero v Tillio Ratti) or not properly.
Carbonari
Article in a directive granting a right of ‘appropriate remuneration’ to trainee doctors was not unconditional because it did not specify the method by which remuneration was to be fixed or which institution was to bear the obligation to pay the remuneration.
Becker
‘[25] … whereas the provisions of a directive appear, as far as the subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State’
Defrenne v Sabena [1976]
‘[39] In fact, since [Article 157 TFEU] is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals’.
Marshall I [1986]
Article 288 TFEU] the binding nature of a directive, which constitutes the basis [for its direct effect] exists only in relation to each Member State to which it is addressed.
Fratelli Costanzo [1989]
‘[When] the conditions under which the Court has held that individuals may rely on the provisions of a directive before the national courts are met, all organs of the administration, including decentralised authorities such as municipalities, are obliged to apply those provisions’.
Foster v British Gas [1990]
The notion of the ‘State’ applies to a body, whatever its legal form, which is:
- Made responsible for providing a public service by a measure adopted by the State.
- The public service in question is under the control of the State, and
- Has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals
Faccini Dori [1994]
Italy had not implemented the ‘Doorstep Selling Directive’ – the date for implementation had passed. Ms Dori signed up to an English language course at Milan Railway Station. Under provisions in the Directive Ms Dori would have been entitled to withdraw from the arrangement. The Court of Justice applied Marshall I and held that Ms Dori had no remedy against the private company that sold her the course. Her only option would be to sue the State (under the separate technique of ‘State liability’)
Pfeiffer [2004]
‘The requirement for national law to be interpreted in conformity with [Union] law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Union law when it determines the dispute before it …’
Von Colson and Kamann [1984]
‘[26] [The obligation] … to achieve the result envisaged by the directive and their duty under [Art 4 (3) TEU] to take all appropriate measures … to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of national law specifically introduced in order to implement [the Directive], national courts are required to interpret their national law in the light of the wording and the purpose of the directive … to achieve the result referred to in [Article 288] …
[28] [If a Member State chooses to penalise a breach by the award of compensation] then in order to ensure that it is effective and that it has a deterrent effect, that compensation must in any event be adequate in relation to the damage sustained and must therefore amount to more than purely nominal compensation [such as the reimbursement of expenses]. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Union law, in so far as it is given discretion to do so under national law’.
Marleasing [1990]
conflict of interpretation between the Spanish Civil Code and an unimplemented company law directive.
‘[8] [As] the Court pointed out in [Von Colson] the Member States’ obligation arising from a directive in order to achieve the result envisaged by the directive and their duty under [Art 4 (3) TEU)] is binding on all the authorities of the Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court is called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with [Article 288 TFEU]’
Adeneler [2006]
Adeneler and the other claimants had been employed by ELOG (the Greek Milk Organisation) on a series of fixed-term contracts. Directive 1999/70 required MS to implement national laws requiring successive fixed-term contracts to be converted into permanent contracts. Greece delayed implementation.
CJEU had to decide at what point the national courts duty of interpretation commenced :
‘from the date upon which a directive has entered into force, the courts of the MS must refrain as far as possible from interpreting domestic law in a manner which might seriously compromise…attainment of the objective pursued by the directive’.
Even provisions they consider clear and precise, the third condition is not fulfilled. Court held they are under lenient duty to refrain from engaging in conduct which would undermine EU law during implementation period.
Pfeiffer [2004]
♣ The requirement for national law to be interpreted in conformity with [Union] law is inherent in the system of the Treaty, since it permits the national court, for the matters within its jurisdiction, to ensure the full effectiveness of Union law when it determines the dispute before it…’
Thoburn [2003]
Justice Laws created a new concept of different categories of acts some of which present constitutional elements of constitutional significance while some others cant – cannot be implicitly repealed. Use of common law In compliance with interpretation rule. The duty of national judge to try and find a solution within national order, such as Thoburn.
If you can interpret provision in light of EU law but it cannot then primacy occurs.
