EU - EU Law in National Courts - LGS 5&6

Question 1

INCORPORATION OF EU LEGISLATION INTO NATIONAL LAW

Answer 1

ECA has been amended to give effect to the Lisbon treaty

We’re a dualist state, agreements aren’t binding until effected in National LAw.

Question 2

Incorporation / Supremacy

ECA,

Treaties

Law,

Courts

Answer 2

s2(1) of the ECA applies EU law under treaties, ‘ Enforceable right’

EU law afforded Supremacy over subseqent Leg by s2(4) ECA

Interpretation of EU law by UK courts subject to jurisdiction of EU courts under s3(1) ECA

Question 3

Supremacy of EU leg.

2 Major Cases

Answer 3

Treaties are silent on their authority but Simmental demonstrates CJs interpretation of supremacy - Italian courts must disapply national legislation.

Factortame (no. 2) - ‘it has always been clear that UK court ust override national law found to be in conclict with directl enforceabe EU law.

Question 4

DIRECT APPLICABILITY OF EU LEGISLATION

Answer 4

All EU is directly applicable into the law of Uk unless national legislation is required to implement it.

Question 5

DIRECT EFFECT OF EU LEGISLATION

3 Cases

Ultimately can be established by 367 reference.

Answer 5

Law can be reiled on directly in National Courts.

Van Gend en Loos - Criteria for EU leg to have direct effect

1. Create rights for individuals
2. Impose corresponding durty on MS or individual - in a way that is clear precise and unconditional.

Vakbeweging - dirctive could have direct effect.

Must also be conditional - not qualified by aother right. - Della cava - Directive was conditional and not directly effective.

Question 6

Vertical / Horizontal

Answer 6

• EU legislation has ‘horizontal direct effect’ if it can be relied upon (either as a sword or a shield) in legal proceedings where the parties concerned are private persons.
• EU legislation has ‘horizontal direct effect’ if it can be relied upon (either as a sword or a shield) in legal proceedings where the parties concerned are private persons.

Question 7

Public authority / Emanation of the State

1 Case + Criteria

1 Case in contrast

Answer 7

Foster v British gas.

Public Service

Special Powers

Control of the state and pursuant to measure adopted b state.

British Gas was an emanation after privatisation.

Doughty v Rolls Royce.

Question 8

INTERPRETATIVE DUTY

2 Points

3 Cases

Answer 8

Tension - CJ requires effectiveness of EU law to promote harmonisation whereas states concerned about sovereignty.

art4(3) TEU - MS has objigation to fulfil obigations under Treaties / Acts of EU Institutons .

Von Colson - duty to interpret aw in conformity with EU.

Marleasing - interpretative duty not absolute but - as far as possible in conformity.

Pfieffer - Interpretatitve duty inherent in treaties, (remember Factortame which confirms above)

Question 9

THE DIFFERENT FORMS OF EU LEGISLATION

Answer 9

Treaties are operative provisions of TFEU and TEU

Art 288 TFEU authority for secondary provisions, and their effect.

Question 10

Treaty Articles.

3 Cases

Answer 10

Directly Applicable.

Cj constititently holds that they are.

Defrenne (no.2) - Direct Horizontal effect too.

Angonese - art 45 a fundamental freedom and could be Vertical and Horizontal effect.

Not all articles however… Advocate General Mancini in Zaera.

Question 11

EU Regulations

Answer 11

Article 288(2) TFEU

Directy applicable. Vertical and Horizontal direct effect to the extent that they fulfil the VGL criteria.

Question 12

EU Directives

Answer 12

Not Directly applicable as Article 288(3) TFEU) gives ability to impliment in national law.

Enforcement mecanisms 258 / 259 TFEU one option.

Also Vertical direct effect if satisfies the VGL criteria for direct effect, but not Horizontal effect.

Remember it is the states duty to impliment, so its ok to burden the state with liability but not a private body.

Question 13

Decisions

Answer 13

Article 288(4) TFEU

Franz Grad - Decisions are directly applicable in state to which they are addressed adn directly effetive /enforceable by those to whom the decision is addressed.

Capable of vertical and direct effect to the extend that the decision fulflls that criteria.

Question 14

Soft Law

Answer 14

Only persuasive for interpretation.

Question 15

THE UNUSUAL STATUS OF DIRECTIVES

The significance of their implementation date

(1)

And what states must do before …

(2)

Answer 15

Tullio Ratti.

Before expiry date of implimentation no direct legal effect, however can have direct effect after the date.

Interenvironment Wallonie - MS should not impliment legislation contrary to Directive before its implimentation date.

Pfeiffer - Once MS has implimented, status is same as if it had expired.

Question 16

b) Their capacity to have vertical direct effect

Answer 16

Van Duyn

Directive had passed implimentation date but was not implimented. CJ held that it had direct effect under 288

Confirmed in Pfeiffer

Remember must alwas satisfy VGL criteria and have passed Implimentation date or been implimented poorly.

Question 17

c) Their lack of horizontal direct effect

Answer 17

Marshall v Southampton

Directives are bidning on the Member state too which they are addressed and that a directive may not impose obligations on indviduals. (only the national law that implimented it would bind the individal.

Confirmed in Pfieffer.

Question 18

d) Their indirect horizontal effect

Answer 18

Voncolson & - Harz

Member States are required to interpret National Law as far as possible in conformity with EU law (case?) + Art 4(3)TFEU.

Voncolson stated this duty required National courts to give indirect effect to EU Directives and their objectives.

This lead to indirect effect - by the obligation of interpretation

Question 19

(i) WHEN DOES THE INTERPRETATIVE DUTY ARISE?

Answer 19

Adeneler.

“where a directive is transposed belatedly” or from the date it enters into force, the National Courts must refrain from interpreting domestic law in a manner which might compromise after the period of trasposition, the attainment of the objective of the directive.

Question 20

(ii) WHAT IS THE EXTENT OF THE DUTY UNDER EU LAW?

2 Cases

Answer 20

Kolpinghuis Nijmegen

Several limitations, Criminal offences and statutes msut be strictly defined

also Certainty - and not retrospective.

Marleasing: CJ stated National courts must not construe own law contra legem

Question 21

Interpretative Duty

Faccini-Dori v Recreb

Wagner-Miret v Fondo de Guarantia Salarial

Pfieffer

Answer 21

If not possible to construe national law without completely distoring wording of national law then the remedy would be francovich damages.

confirmed above.

Interpret in conformity with regard to the whole body of national law

Question 22

(iii) WHAT INTERPRETATIVE DISCRETION ARISES UNDER UK LAW?

Litster v Forth - Interpration?

Duke v GEC Reliance

Pickstone v Freemans

Answer 22

Interpreation is now teleological interpretative method -

Duke - HoL stated duty to give indirect effect did not extend to distorting the wording of the national legislation.

HoL were happy to deviate from Literal interpration in order to make UK regs conform.

Question 23

e) Their incidental horizontal effect

CIA Security International SA v. Signalson SA & Securitel

Unilever Italia SpA v Central Food SpA

Answer 23

Existence of Directive may nullify a piece of conflicting Natonal legislation as a court would be required to disapply it under art 4(3)

CJ held that legislation should be ignored as tit was in breach of the directive.

the buyer of goods did not have ability to reject them as the national law was void and in breach of directive.

Question 24

What is the difference between indirect effect and incidental effect given that both effects are based upon the obligations contained in Article 4(3) TEU?