European Law w1 Flashcards
There is an institutional balance: a balance between the institutions and their powers. As mentioned earlier, art. 13 TEU is the starting point of this principle.
The basic principle is that the institutions need each other in the legislative process.
This means that they are also dependent on each other.
There is an institutional balance: a balance between the institutions and their powers. As mentioned earlier, art. 13 TEU is the starting point of this principle. The basic principle is that the institutions need each other in the legislative process. This means that they are also dependent on each other.
1 Which institutions are involved in creating legislation in the EU? What is their respective role in the EU legislative process?
We have three institutions that are involved in creating legislation in the EU:
1 The European Parliament
2 The Council
3 The Commission
1 The European Parliament
The European Parliament is the people’s representation in the process of European legislation and governance.
Is composed of representatives of the Union’s citizens in the process of Union law and governance (art. 14 TFEU)
The Council and the European Parliament can request for initiative. The Council and European Parliament exercise legislative and budgetary functions art. 16 TEU.
2 The Council art. 13 TEU and 16 TEU
Mainly represent the Member States. Directives, regulations and other decisions of the Union are issued by the Council, often jointly with the European Parliament. It also has the executive power in part because it carries out Union policy.
The Council and the European Parliament can request for initiative. The Council and European Parliament exercise legislative and budgetary functions (art. 16 TEU)
The Council of the European Union is also referred to as ‘the Council’ or ‘the Council of Ministers’.
The Council is therefore part of the legislative power.
It is also partly executive power because it implements Union policy.
The fact that the Council has both legislative and executive powers indicates that there is no strict separation of powers in the Union. Rather, there is an institutional balance: a balance between the institutions and their powers art. 13 TEU.
3 The Commission art. 13 TEU and 17 TEU
Has the right of alternative/initiative (art. 17 par. 2 TEU). Without a proposal from the Commission, no decision can be taken. However, the Commission is not a legislator, the final decision-making power lies with the Council and Parliament.
The Commission is only responsible for implementing Union decisions as far as this can not be done by the Member States themselves art. 291 TFEU. Art. 258 TFEU.
The members of the Commission come from the Member States but do not represent them. They represent the general interest of the Union. Art. 245 TFEU confirms this and adds that this independence of the Member States must also be respected by the Member States and not try to influence the Commissioners.
- There is an institutional balance: a balance between the institutions and their powers. As mentioned earlier, art. 13 TFEU is the starting point of this principle. The basic principle is that the institutions need each other in the legislative process. This means that they are also dependent on each other.
1 Which institutions are involved in creating legislation in the EU? What is their respective role in the EU legislative process?
We have three institutions that are involved in creating legislation in the EU:
1 The European Parliament
2 The Council
3 The Commission
1 The European Parliament
Is composed of the representatives of the Union’s citizens in the process of Union law and governance (art. 14 TEU)
The Council and the European Parliament can request for initiative. The Council and European Parliament exercise legislative and budgetary functions (art. 16 TEU).
2 The Council art. 13 and 16 TEU
Mainly represents the Member States. Directives, regulations and other decisions of the Union are issued by the Council, often joinly with the European Parliament. It also has the executive power in part because it carries out Union policy.
The Council and the European parliament can request for initiative. The Council and European Parliament exercise legislative and budgetary functions art. 16 TEU.
3 The Commission art. 13 and 17 TEU
Has the right of alternative art. 17 lid 2 TEU.
Without a proposal from the Commission, no decision can be taken. However, the Commission is not a legislator, the final decision-making power lies with the Council and Parliament. The Commission is only responsible for implementing Union decisions as far as this can not be done by the Member States themselves art. 291 TFEU.
The members of the Commission come from the Member States, but do not represent them. They represent the general interest of the Union. Art. 245 TFEU confirms this and adds that this independence of the Member States must also be respected by the Member States and no try to influence the Commissioners.
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There is an institutional balance: a balance between the institutions and their powers. As mentioned earlier, art. 13 TEU is the starting point of this principle. The basic principle is that the institutions need each other in the legislative process. This means that they are also dependent on each other.
EU Institutions art. 13 TEU
1 The European Parliament (co-legislator)
2 The Council (co-legislator)
The minister of every country.
3 The Commission (has the right of initiative)
They are independent
4 European Council
5 Court of Justice of the EU
6 European Central Bank
7 Court of Auditors
EU Institutions art. 13 TEU
1 The European Parliament (co-legislator)
2 The Council (co-legislator)
The minister of every country.
3 The Commission (has the right of initiative)
They are independent
4 European Council
5 Court of Justice of the EU
6 European Central Bank
7 Court of Auditors
Council and European Council are not the same. European council made of head of state of government. They meet once in a while. Is it a pollical institution defines what are the pollical guidelines.
The major difference between the European Council and the Council (of the European Union) is that the European Council has no legislative power art. 15 (1) TEU and the Council does art. 16 (1) TEU.
Council and European Council are not the same. European council made of head of state of government. They meet once in a while. Is it a pollical institution defines what are the pollical guidelines.
The major difference between the European Council and the Council (of the European Union) is that the European Council has no legislative power art. 15 (1) TEU and the Council does art. 16 (1) TEU.
Art. 289 TFEU
1 The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in article 294 TFEU.
The following three instititons are involved in the law-making process (art. 289 and 294 TFEU for the procedure):
1 the European Parliament (art. 14 TEU), which represents the citizens of the EU
2 The Council of European Union (art. 16 TEU), which represents the Member States of the EU
3 European Commission (art. 17 TEU), which represents the EU and has the exclusive right of initiative.
The European Parliament and the Council of the European Union are called ‘co-legislators’.
Art. 289 TFEU
1 The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in article 294 TFEU.
The following three instititons are involved in the law-making process (art. 289 and 294 TFEU for the procedure):
1 the European Parliament (art. 14 TEU), which represents the citizens of the EU
2 The Council of European Union (art. 16 TEU), which represents the Member States of the EU
3 European Commission (art. 17 TEU), which represents the EU and has the exclusive right of initiative.
The European Parliament and the Council of the European Union are called ‘co-legislators’.
2 What legal acts can be adopted by these institutions? In your answer, describe some of the core characterestics of these legal acts
EU legal acts art. 288 TFEU
Regulations
- binding in their entirety in all member states
- directly applicable
- directly effecitve
no transformation needed
- Horizontal and vertical effect
Directives
- binding as to the result achieved
- no directly applicable
- vertical direct effect
Decisions
- binding in their entirety
- directly applicable
- specific to those to whom it addressed
Direct effect means that you can claim your right of the EU law.
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Lawbooks:
According to art. 289 TFEU, the above-mentioned institutions can adopt regulations (verordeningen), directives (richtlijnen) and decisions. Art. 288 TFEU is the foundational provision for the different types of legal acts.
- Regulations are binding in their entirety and directly applicable in all Member States (thus, do not have to be implemented in national law) and have horizontal direct effect (directly applicable by citizens in all Member States before national courts and the European Court) as well as vertical effect. A regulation can provide for both rights and obligations for individuals.
- A directive is binding on each Member State to which it is addressed as to the result to be achieved. A directive must be implemented within national law by the Member State. A directive only has vertical direct effect (application between Member States). A directive does not directly provide for rights and obligations for individuals, but the national implementation of directives provides for rights (although not for obligations) for individuals.
- A decision is binding in its entirety and decision that speficies those to whom it is addessed is binding only on them. A decision provides for both rights and obligations for individuals and/or Member States. Decisions have both horizontal and vertical direct effect.
- Verticale lidstaten en unie
Horizontaal tussen instellingen in / directly applicable by citizens in all Member States before the courts.
2 What legal acts can be adopted by these institutions? In your answer, describe some of the core characterestics of these legal acts
Verordening:
Algemene strekking
Verbindend in alle onderdelen
omzetting verboden
rechten + plichten
verticaal + horizontaal
Richtlijn:
Lidstaten
resultaat verbindend
omzetting nodig
alle rechten
verticaal
Besluit:
Algemene strekking of specifiek geadresseerd (bijv. wetgeving over natuurgebieden)
verbindend in alle onderdelen
omzetting verboden
rechten + plichten
Verticaal + horizontaal.
Verordening:
Algemene strekking
Verbindend in alle onderdelen
omzetting verboden
rechten + plichten
verticaal + horizontaal
Richtlijn:
Lidstaten
resultaat verbindend
omzetting nodig
alle rechten
verticaal
Besluit:
Algemene strekking of specifiek geadresseerd (bijv. wetgeving over natuurgebieden)
verbindend in alle onderdelen
omzetting verboden
rechten + plichten
Verticaal + horizontaal.
3 Which EU law principles govern the process to create EU legislation?
Art. 5 TEU
1 Conferral art. 5 (1 and 3) TEU
EU’s authority is conferred on it by the Treaties. It cannot act beyond this authority
2 Proportionality art. 5 (4) TEU
EU should not go beyond what is necessary to achieve the aims of the Treaties.
3 Subsidiarity art. 5 (3) TEU
If national governments can act, then the EU should only act if a better outcome would result from an EU law.
- EU law principles governing EU legislation > art. 5 TEU
1 Principle of conferral (art. 5 (1) and (2))
2 Principle of subsidiarity (art. 5 (3))
3 Principle of proportionality (art. 5 (4))
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Lawbooks:
Three important principles are to be distinguished, as arising from art. 5 TEU:
1 The principle of conferral (attributiebeginsel)
This means the EU acts within the limits of the powers conferred on it by the Member States in the Treaties in order to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States > art. 5 (1 and 2)
2 The principle of subsidiarity:
The EU legislator should only act if the objectives of the proposal action can not be sufficiently achieved by the Member States > art. 5 (3) TEU
3 The principle of proportionality:
The form and content of action to be taken should not exceed what is necessary to achieve the objectives of the Treaties > art. 5 (4) TEU
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3 Steps:
1 Principle of conferral (art. 5 (1) and (2) TEU)
Heeft de EU bevoegdheid? EU is bevoegdheid toegedeeld door lidstaten (belang rechtsbasis)
2 Principle of subsidiarity (art. 5 (3) TEU)
Mag de EU haar bevoegdheid uitoefenen?
EU is best geschikt om maatregel te nemen
3 Principle of Proportionality (art. 5 (4) TEU)
Hoe moet de EU haar bevoegdheid uitoefenen?
Gaat maatregelen niet verder dan nodig?
3 Which EU law principles govern the process to create EU legislation?
4 Which principles govern the relationship between European law and national law? In your answer, make a connection to the Van Gend & Loos and Costa/ENEL Case
1 The principle of direct effect
2 The principle of supremacy
The case ‘Van Gend & Loos’ judgment introduced the Union’s own legal order. The concept of legal order is not easy to define. It can be understood as a seperate system of law that governs its own development through legal procedures and above all, its own judge. It follows that the European legal order has a certain autonomy comparted to the Member States and the general international law (the Court of Justices has even attributed features of the rulel of law to the Union’s legal community.
Furthermore, the Court of Justice rules that Community law (European law) takes precedence over national law. Where a national law and a provision of European law conflict, the provision of European law shall prevail. This is because the European law deviates from ordinary international treaties and has created its own legal order. This means that the provisions automatically incorporated into the national legal order. As a result, the court must disregard a national provision that conflicts with European law. European law therefore takes precedence over any national provision that conflicts with European law.
les:
Direct effect and supremacy
Direct effect (Van Gend & Loos 1963)
- EU law confers rights on individuals
- Enforceable before domestic courts
- Vertical Direct effect v. Horizontal Direct effect
Supremacy (Costa/ENEL 1964)
- EU law always takes precedence over national law in case of conflict (otherwise direct effect would be pointless)
- Lawbooks:
As emerged in Costa/ENEL, Union law takes precedence over national law. This called the principle of supremacy.
Costa/ENEL complements the older case Van Gend & Loos, in which was decided for the first time that European provisions can have direct effect: the principle of direct effect. The most commonly used definition of direct effect: provisions of binding EU law that are sufficiently clear, precise and unconditional to be considerd justiciable can be invoked and relied on by individuals before national courts.
The above two principles enhance the effectiveness of EU law.
- 1 The principle of direct effect (Van Gend & Loos)
2 The principle of supremacy (Costa/ENEL)
4 Which principles govern the relationship between European law and national law? In your answer, make a connection to the Van Gend & Loos and Costa/ENEL Case
1 The principle of direct effect
2 The principle of supremacy
The case ‘Van Gend & Loos’ judgment introduced the Union’s own legal order. The concept of legal order is not easy to define. It can be understood as a seperate system of law that governs its own development through legal procedures and above all, its own judge. It follows that the European legal order has a certain autonomy comparted to the Member States and the general international law (the Court of Justices has even attributed features of the rulel of law to the Union’s legal community.
Furthermore, the Court of Justice rules that Community law (European law) takes precedence over national law. Where a national law and a provision of European law conflict, the provision of European law shall prevail. This is because the European law deviates from ordinary international treaties and has created its own legal order. This means that the provisions automatically incorporated into the national legal order. As a result, the court must disregard a national provision that conflicts with European law. European law therefore takes precedence over any national provision that conflicts with European law.
les:
Direct effect and supremacy
Direct effect (Van Gend & Loos 1963)
- EU law confers rights on individuals
- Enforceable before domestic courts
- Vertical Direct effect v. Horizontal Direct effect
Supremacy (Costa/ENEL 1964)
- EU law always takes precedence over national law in case of conflict (otherwise direct effect would be pointless)
- Lawbooks:
As emerged in Costa/ENEL, Union law takes precedence over national law. This called the principle of supremacy.
Costa/ENEL complements the older case Van Gend & Loos, in which was decided for the first time that European provisions can have direct effect: the principle of direct effect. The most commonly used definition of direct effect: provisions of binding EU law that are sufficiently clear, precise and unconditional to be considerd justiciable can be invoked and relied on by individuals before national courts.
The above two principles enhance the effectiveness of EU law.
- 1 The principle of direct effect (Van Gend & Loos)
2 The principle of supremacy (Costa/ENEL)
5 What is the relationship between national courts and the Court of Justice of the EU (CJEU)? Which legal procedure plays a core role in this relationship?
CJEU art. 267 TFEU
The national courts ask preliminary questions to the CJEU
Structure of the Court (CJEU) > art. 19 TEU
- Lawbooks:
The national judges and EU are considered to be part of one legal order. The CJEU is competent to rule on proceedings between EU institutions themselves, between Member States and EU institutions themselves, between individuals and EU institutions and between Member States themselves.
In contrast, the national court decides on proceedings between individuals and the Member State and between indiviuals among themselves. This can be done independently by the national court or through a preliminary ruling procedure see art. 267 TFEU.
5 What is the relationship between national courts and the Court of Justice of the EU (CJEU)? Which legal procedure plays a core role in this relationship?
CJEU art. 267 TFEU
The national courts ask preliminary questions to the CJEU
Structure of the Court (CJEU) > art. 19 TEU
- Lawbooks:
The national judges and EU are considered to be part of one legal order. The CJEU is competent to rule on proceedings between EU institutions themselves, between Member States and EU institutions themselves, between individuals and EU institutions and between Member States themselves.
- What is the relationship between European integration, the internal market and spillover? Make a connection with the weekly themes of this course (in order of appearance: free movement of services & establishment, competition law, free movement of workers, equal treament, and EU citizenship & migration).
Integration in one area leads to integration in other areas. The European Union started with economic measures, but for these measures to be effective, the integration of Member States expanded more and more. One example is how the free movement of workers led to integration in other areas such as social security rights and freedom of establishment. Free movement of workers would for example not be effective if the worker’s family would not be allowed to move to the other Member State as well.
- What is the relationship between European integration, the internal market and spillover? Make a connection with the weekly themes of this course (in order of appearance: free movement of services & establishment, competition law, free movement of workers, equal treament, and EU citizenship & migration).
Week 1 Setting the Scene
Subject 1 Instruments and the Hierarchy of norms
Introduction
The EU employs legal and non-legal tools to achieve its goals, including regulations, directives and decisions, often in combination with soft law approaches. The legality of these instruments is determined by the Treaties. The Lisbon Treaty revamped the hierarchy of norms, establishing five tiers: Treaties and Charter Rights, general legal principles, legislative acts, delegated acts and implementing acts. However, challenges emerged in differentiating between delegated and implementing acts, which is vital for evaluating the Lisbon Treaty’s success in promoting simplicity, democratic legitimacy and the separation of powers in the EU.
There are five key points relevant to the instruments used by the EU:
- No formal hierarchy:
There is no formal hierarchy among regulations, directives and decisions in EU law. None of these is inherently superior to the others, and they can all play a role in developing EU policy. - Types of acts:
Regulations, directives and decisions can take the form of legislative, delegated, or implementing acts. Their position in the hierarchy depends on their type. - Treaty specifications:
The EU Treaties may specify the type of instrument to be used, but not always. In cases where the Treaties are silent, the choice of act is made on a case-by-case basis. - Obligation to provide reasons:
Art. 296 TFEU imposes an obligation to provide reasons for legal acts, including references to any required proposals, initiatives, recommendations, requests, or opinions. - Rules for making legal acts:
Art. 297 TFEU specifies rules for making legal acts in article 288 TFEU. Legislative acts adopted under ordinary or special legislative procedures require specific signatures, publication and entry into force conditions. Non-legislative acts vary in their publication and entry into force requirements based on their addressees and specifications.
Week 1 Setting the Scene
Sources of EU law
As mentioned earlier, EU law utilizes a variety of legal instruments, including regulations, directives, decisions, and soft law measures, to establish and govern the legal framework of the European Union.
Let’s delve into these in more detail:
1 Regulations:
EU regulations are legally binding and apply directly in all Member States. They can be legislative, delegated, or implementing acts under the post-Lisbon Treaty legal framework. Article 288 TFEU outlines the concept of ‘directly applicable’ regulations, which can be interpreted in two ways:
As granting individuals enforceable rights in national courts, or as a method for intergrating international norms into national legal systems.
- In dualist Member States, regulations must be integrated into national law without transformation.
However, Member States may need to adjust their laws to comply with a regulation, but this does not alter the regulation’s independent legal effect. Member States should avoid passing measures that obscure the nature of the EU regulation.
(De dualistische leer: ziet de nationale en internationale rechtssfeer als strikt gescheiden. De monistische benadering ziet de nationale en de internationale rechtsorde als 1 geheel)
2 Directives:
Directives in the EU differ significantly from regulations. Unlike regulations, directives do not necessarily have to be addressed to all Member States, and they carry a unique characteristic:
They are binding as to the desired end goal while allowing Member States some discretion in choosing the specific form and method of implementation. Recent ECJ rulings have enhanced their legal impact by allowing individuals to rely on them and holding states accountable for non-implementation.
3 Decisions: art. 288 TFEU defines the characteristics of decisions within the EU legal framework.
According to this article, a decision is legally binding in its entirety, and if it specifies the recipients, it is binding only on those individuals or entities.
4 Inter-institutional agreements:
Inter-institutional agreements in the EU are essential for addressing key issues and setting legislative guidelines. Art. 295 TFEU formalizes this process, requiring consensus among EU institutions and providing a treaty-based foundation for their legal validity.
5 Recommendations, opinions and soft law:
Art. 288 TFEU highlights that recommendations and opinions are not legally binding but can be reviewed by courts.
Soft law, like recommendations and opinions, is just one type of non-binding measure used by the EU.
Examples include Commission policy guidelines and initiatives like the open method of coordination, which blur the line between soft and hard law. The EU often combines formal and informal legal measures to achieve its goals, which is generally seen as a positive approach. However, this mix can create challenges, such as confusion for affected parties and potentially reducing the influence of the Council and European Parliament on the resulting norms.
Sources of EU law
Hierarchy of norms
Prior to the Lisbon Treaty, the EU had legal acts like regulations, directives and decisions, but no formal hierarchy.
The Constitutional Treaty introduced a hierarchy of norms, which the Lisbon Treaty retained with some terminology changes. This hierarchy aimed to simplify, enhance democratic legitimacy, and clarify the separation of powers, following recommendations from Working Group IX on simplification:
1 Treaties and Charter of Rights:
In the EU’s hierarchy of norms the top level includes the Treaties (TEU and TFEU) and the Charter of Rights, which holds equal legal status as the Treaties according to art. 6 (1) TEU.
These foundational documents guide the interpretation of alle legislative acts, and the Union Courts ensure their compliance.
2 General principles of law:
In the EU’s legal hierarchy, the highest level consists of Treaties and the Charter of Rights, followed by general principles of law. These principles, shaped by Union Courts and influenced by concepts such as proportionality, fundamental rights and legal certainty, serve as the foundation for judicial review under article 263 jo. rat. 267 TFEU. This grants EU courts considerable authority in interpreting and applying EU law, with inspiration from Member States’ administrative law, notably German jurisprudence.
3 Legislative acts art. 289 TFEU defines legislative acts in the EU as those resulting from specific procedures. The determination is based solely on these procedures, not the content. If it follows a procedure, it’s legislative; if not, it is not even if it resembles legislative content. This can create problems when Treaty articles do not specify the procedure, potentially excluding them from the legislative category, despite being legislative under the EC Treaty.
4 Delegated acts:
Art. 290 TFEU defines delegated acts as non-legislative acts made by the European Commission to adjust non-essential elements of primary legislation (regulations or directives). The primary legislation grants the Commission authority to provide details and make changes within its framework, with specified conditions and controls.
5 Implementing acts:
See art. 291 TFEU, which defines the implementing act. Implementing acts are a type of secondary legislation that provide detailed rules for the implementation of primary legislation, which is usually a regulation. They are used to ensure uniform application of EU laws across member states.
Hierarchy of norms
Subject 2: The nature and effect of EU law: Direct effect and beyond
The doctrine of ‘direct effect’ applies to binding EU law but is uncertain, especially regarding directives. It allows individuals to use EU law in national courts, but directives can not impose obligations directly. The ECJ expanded ‘direct effect’ to include Treaty Articles, regulations and decisions. There ‘s debate over its scope (‘objective’ vs. ‘subjective’). Directives have vertical but not horizontal direct effect, leading to complex jurisprudence and concepts like ‘indirect effect’ and ‘harmonious interpretation’. EU law has multifaceted impact on national law.
Direct effect of primary EU law
In 1963, the ECJ established direct effect in the Van Gend & Loos case. Despite opposition from Member States, the ECJ ruled that Treaty Articles could have direct effect, based on textual evidence and a vision of the EU as a legal community involding individuals. This approach aimed to enhance EU rule enforcement and involve national courts and individuals in upholding EU norms, alongside the Commission’s role in enforcement.
Tip:
In het arrest ‘Van Gend & Loos’ stelde het Hof van Justitie dat het E.E.G-Verdrag meer is dan een overeenkomst tussen lidstaten, het creëert een eigen rechtsorde, de ‘Gemeenschap’. Hierdoor hebben lidstaten hun soevereiniteit op bepaalde terreinen beperkt en niet alleen lidstaten, maar ook hun burgers kunnen daaruit rechten ontlenen. Daarom heeft het E.E.G- Verdrag directe werking en kunnen rechtzoekenden deze rechten voor nationale rechters handhaven
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Conditions for direct effect
Let’s now examine the conditions for direct effect in various EU instruments:
- Treaty articles:
The ECJ initially imposed strict conditions for Treaty Articles to have direct effect, including clarity, unconditionality, and no dependence on national measures.
However, subsequent case law expanded these conditions. Clarity and unconditionality were qualified, allowing for direct effect when Member States had discretionary power under judicial control (Salgoil, Van Duyn).
The requirement for additional national measures was also modified, allowing basic principles to have direct effect if they were sufficiently certain, even if full implementation was lacking, as seen in cases like Reyners and Defrenne. - In summary, the original strict conditions for direct effect have been loosened, and the current criteria require sufficient clarity, precision and unconditionality for individuals to invoke and courts to apply EU law provisions.
sprake van een onvoorwaardelijke en voldoende nauwkeurige bepaling
So for direct effect by treaty articles: Sufficient clarity and unconditionality.
- General principles:
General principles of EU law are a source of primary EU law derived from ECJ case law in the 1970s. Article 6 (3) TEU recognizes fundamental rights, based on the ECHR and Member States’ constitutional traditions, as general principles of EU law. These principles have vertical direct effect and have been invoked in domestic litigation and litigation against the EU under art. 263 TFEU.
The question of whether general principles of law could have horizontal direct effect was not addressed until recently. In Mangold, the ECJ declared a general principle of non-discrimination on grounds of age in EU law, requiring national courts to set aside conflicting national law.
In Kucukdeveci, the ECJ clarified that a general principle of non-discrimination would apply only when the case fell within the scope of EU law.
The CJEU implied in Römer that non-discrimination on grounds of sexual orientation might be a general principle, which has been confirmed by later case law.
- The Charter of Fundamental Rights:
The Charter has been binding since late 2009, has vertical direct effect and has been invoked in CJEU cases. The CJEU has ruled that certain Charter provisions can have horizontal effect. This willingness to accord horizontal effect to Charater rights in Egenberger has implications for horizontal direct effect of directives, potentially extending its reach depending on the Charter rights involved.
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Direct effect of secondary EU law
All binding EU laws have direct effect, while non-binding laws, although lacking direct effect, can still influence through effect via harmonious interpretation.
- Regulations:
Art. 288 TFEU states that EU regulations are binding and directly applicable in all Member States, without needing transposition. This means that individuals can potentially rely on and enforce regulations in their national courts, as long as the regulation’s provisions are clear, precise and certain.
The principle of direct effect for regulations was established in the
Slaughtered Cow case, emphasizing that national implementation methods should not hinder their direct applicability. While a Member State can enact measures to implement a regulation, these measures must not alter or obstruct the regulation’s direct effect of EU law ‘s parameters. Moreover, the direct effect of regulations obliges both courts and administrative authorities to apply EU law immediately, including what’s referred to as ‘administrative direct effect’.
Decisions:
The treaty language regarding decisions has changed from art. 249 EC to art. 288 TFEU. The new wording clarifies that a decision is binding in its entitery but only on the specific parties it addresses. Despite this change, the ECJ, in the Grad case, confirmed that decisions can have direct effect, allowing individuals to invoke them before national courts, provided the invoked decision’s provisions are clear and precise. Typically, individuals invoke decisions against Member States ( vertical direct effect). However, the court has been cautious about extending decision-based obligations to private parties (horizontal direct effect) unless the decision explicitily addresses them.
Art. 288 TFEU reinforces that decisions only bind those they address, but when a decision targets a private party, it can create horizontal direct effect between private parties.
- Directives
Directives are not directly binding in that sense, but Member States must implement the content of directives into national legislation. Therefore, transposition into national law is a requirement. Conditions for direct effect are:
i The provision must be clear, precise and unconditional. In the Van Duyn case, the Court ruled that even when directives give Member States some discretion, directives can have direct effect if they limit this discretion and impose clear, precise and complete obligations.
ii. The general principle is that the direct effect of an EU directive begins after its implementation deadline. The European Court of Justice (ECJ) clarified that directives can impact Member States even before the implementation period expires.
Member States must refrain from actions that seriously compromise the directive’s objectives during this period.
However, the ECJ held in Marshall that directives could only have vertical direct effect against the state, not against individuals.
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Harmonious interpretation
The Court has encouraged the effectiveness of EU directives through the principle of harmonious interpretation (in this context, keep in mind the Von Colson case form the Inleiding EU recht). This principle requires national courts and competent authorities to interpret national law in line with directives, even before the directive’s implementation deadline expires. Initially, the interpretive obligation’s timing was unclear, but it generally aligns with the start of vertical direct effect after the implementation deadline.
Harmonious interpretation applies both vertically and horizontally, allowing individuals to rely on unimplemented or inadequately implemented directives against other individuals in legal disputes.
This principle aims to ensure that directives have a practical impact, even in cases involving private parties.
Subject 2: The nature and effect of EU law: Direct effect and beyond
