implementation = enforcement Flashcards
principle of decentralised enforcement
the MS are responsible for the enforcement/implementation of EU law, irrespective of the type of legislative competence
Art 291 (1) TFEU - executive and legislative
Art 19 (1(2)) TEU - judiciary
principle of procedural autonomy
since the MS are responsible for enforcement, they must determine the bodies and procedures, they are free to regulate it provided that they follow principles of equivalence and effectiveness
limits to procedural autonomy (principles)
the procedural rules MUST NOT
1. be less favorable than for domestic actions (equivalence)
2. render practically impossible or v difficult the exercise of rights conferred by EU law (effectiveness)
- Principle of sincere cooperation and loyalty, Art. 4(3) TEU
- Right to an effective remedy, Art. 19(1) TEU
violation of principles of effectiveness and equivalence
- duty to interpret in conformity with EU law
- if not possible, the procedural requirement has to be set aside/disapplied in line with EU law primacy
- legal remedy can be brought directly on Art 4(3) TEU ??
Rewe case
principles of equivalence and effectiveness
interim measures
Art 19 (1) TEU - right to an effective remedy
= an applicant has the right to obtain an interim relief to secure EU law based claim pending final judgement
interim relief against any EU law acts - requirements
- MS court has serious doubts about the validity of EU act
- a preliminary ruling has been referred to CJEU
- urgency and threat of damage to the applicant
- MS takes due account of the EU interest
- MS court has taken due account of relevant case law
principle of res iudicata
a final judicial decisions cannot be relitigated despite substantive incompatibility with EU law, providing legal certainty and stability by preventing the same dispute from being reopened once it has been conclusively resolved by a court
direct effect
a provision of EU law can be enforced by a national authority
conditions for direct effect
- individual right or obligation
- sufficiently clear or precise wording
- without conditions or restrictions barring its further enforcement
justiciability
criteria for determining the direct effect: a provision is directly effective when a court is in a position to adjudicate based on that provision
direct effect of primary law
- content is important, not the form
- most of the internal market provisions have direct effect
- direct effect of some provisions may be blocked in case of horizontal enforcement: an obligation which is addressed to private parties can only be invoked by private parties against MS but not vice versa
direct effect of secondary law
- regulations and decisions: generally suitable for direct effect - no barrier to their horizontal enforceability
- international agreements: only if justiciability is fulfilled and the telos of the agreement was to provide for direct enforceability for individuals
directives and direct effect
they are not intedned to create rights or obligations for private parties as the main addressees are MS. they can only be enforced to the benefit of individuals
requirements for vertical direct effect of directives
(which case?)
Ratti case
- error in transposition
- expiry of transposition period
- justiciability - only the provisions which confer concrete rights on individuals are capable of direct effect
- no horizontal direct effect
Van Duyn
standstill obligation
before the transposition deadline, a MS must not adopt any measure which seriously goes against the objective of a directive
Art 4(3) TEU - loyalty requirement
inverse vertical direct effect
CJEU: it is inadmissible that a state invokes the provisions of a non-implemented directive against an individual
Berlusconi
the exclusion of inverse vertical effect applies in particular to cases of potential criminal liability
Faccini Dori
- exclusion of horizontal direct effect
- since directives are addressed to MS, private parties are not bound by them
- a directive can’t be relied on in a dispute between individuals
can directives have direct horizntal effect?
- generally no (MS as addressees, distinction between directives and regulations)
- BUT methods
methods used instead of horizontal direct effect of directives
- interpreting the meaning of the state
- the duty of consistent interpretation of national law with the directive
- triangular situations and incidental effect
- directives representing general principles of EU law
- benefits of a regulation which are made conditional with a directive
- interpreting the meaning of the state
- re-examining the parties to find that one of them is actually an emanation of the state
- entities controlled by the state, e.g. public undertakings, universities, undertakings with special rights
- the duty of consistent interpretation of national law with the directive
Van Colson case
Art 4(3) TEU: The MS shall take any appropriate measure to ensure fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union
- all national law and any state authority
Limits:
— no contra legem interpretation
— cannot result in the imposition or aggravation of criminal liability on an individual
→ blurring boundary with indirect effect of directives and horizontal direct effect
- triangular situations and incidental effect
- Vertical direct effect of directive against MS will lead to adverse consequences for an individual
- directives representing general principles of EU law
- directives can represent general principles of EU law (e.g. non-discrimination on grounds of age), they are directly applicable as their basis is in primary eu law
- benefits of a regulation which are made conditional with a directive
While directives cannot have horizontal direct effect, they may do so when benefits under a regulation are made conditional on compliance with a directive
limits to direct effect
- no contra legem interpretation
- cannot result in the imposition or aggravation of criminal liability on an individual
imperium under EU law
- all the bodies which are part of the MS branches of government (administrative, legislative or judicial)
- it also covers all entities related to or associated with government bodies
- decisive: ability of the MS to use the entity as a tool for implementation of public tasks
= Foster test (any circumstantial evidence that the entity provides a service for the state)
genuine private parties treated as imperium
- as an exception!
- fully private parties which have de facto regulatory power similar in effect to that of the state
- sports associations or other professional associations, arrangements covering the conditions for employment across a whole sector etc.
- all these actors are bound by the fundamental freedoms in the same way as public authorities
Art 4(3) and 19(1) TEU
MS are obliged to ensure the effective application of EU law = to take all legal and factual measures necessary to ensure its effectiveness
conditions for MS liability for damages
Franovich
1. breach of an EU provision by the MS through an act or omission
2. breached provision intended to confer rights on individuals
3. causal link between breach and damages
4. sufficiently qualified and serious breach
5. damages were inflicted
conditions for sufficiently qualified breach
- a directive was not transposed in time
- the transposition deviates from the clear wording of the directive
- MS doesn’t bring its law in line with consistent CJEU case law
- infringement persists
Which state institution‘s EU law breaches are covered?
administration, legislation, judiciary
Who enforces state liability?
the MS
- governed by national law (procedural autonomy) but effectiveness and equivalence
consequences of a breach
- procedural consequences governed by national law
! inapplicability of the national law (true meaning determined by each legal system) - only in exceptional cases EU law explicitly regulates such issues by requiring absolute nullity of the unlawful act
principle of good administration
- commission is the guardian of the treaties and the national courts - of individual rights
- however, the commission can act in protection of individual rights on request of MS, EU institutions or individuals
- commission is not obliged to pursue a complaint (unclear prospect of success)
- free of charge, relatively simple
