L2: Fundamental principles of the EU’s legal order Flashcards
What does the van Gend and Loos case do?
EC law (now EU law) creates rights and obligations for individuals. These rights and obligations can be enforced in the national courts.
what 3 criteria’s need legal provisions?
- the EU rule need to be clear and precise: clear obligations for both parties
- Unconditional: rule should not depend on any intervention of another body to implement it first. There needs to be nothing in between
- Not subject to any further implementing measures:
what law do you need when the ?= Do EU law have priority over national rule or the other way around? and what does this case entail?
To answer this, we need the Costa /ENEL case.
ENEL wanted to nationalize this company and Mr Costa was against it. he said that it violated the EU law. They asked for clarification to the Court of Justice. They said that the principle of supremacy applies to EU law. This mean that EU law is considered supreme.
Supremacy
what does the Costan ENEL case explain in supremacy?
- Costa / E.N.E.L Case (C-6/64) -> ‘Community rules apply with the same force and with exactly the same meaning and effect for all who operate there’
- Uniform interpretation and application of EU Law.
- Where national law and EU law conflict, EU law must take precedence.
- This is the case for both existing AND future national legislation!
what is vertical direct effect?
is when there is dispute between individual (legal or natural person) and MS
when is there Vertical Direct Effect and and which TFEU articles?
if the provisions that impose a clear, precise and unconditional obligation upon a MS” then yes,
- Free movement of goods Art. 34 TFEU
- Free movement of persons Art. 45 TFEU
- Free movement of services Art. 56 TFEU
- Freedom of establishment Art. 49 TFEU
- Non discrimination Artt. 2, 18 TFEU
- Equal treatment Art. 157 TFEU
- Competition law Artt. 101, 102 TFEU
Vertical Direct Effect and secondary legislation
- Regulations, yes, if the regulation creates rights/obligations for individuals.
- Directives, yes, if the directive is not transposed in time or incorrectly and creates an unconditional obligation that creates rights for an individual
what is a directive?
needs to always be transposed. It is created by the EU. MS have few years to create national law to give effect to the directive. There is only directive effect if the deadline has passed and then the state can be taken to court. Before the deadline this cannot be done since they still have time to do it.
what is Horizontal direct effect?
Two private individuals are in conflict
when is the Horizontal Direct Effect in Treaty and secondary legislation?
Treaty, yes there is
Regulations, yes, if regulation creates rights/obligations for individuals.
Directives, no but state liability for damage
why is there no horizontal directive effect for directives?
1= directive has been implemented. Then you don’t have to look at horizontal direct effect. You can follow the national rules.
2= directive has not been transposed into national law but transposed partially incorrectly.
3= the directives has not been transposed at all.
In 2 and 3 are when to look at horizontal direct effect. You can’t use this against an individual because the state was responsible for this and not the individual. If this is not done properly or in time it cannot be held accountable at an individual because the individual if following the existing rules.
Then the state can be taken to court for the damage.
which case is related to State liability for incorrect or late transposition of directives?
Francovich case (C-6 and 9-90)
what is the Francovich case?
Francovich case is when a company gets bankrupted. If Italy implemented the directive, then, Francovich could be covered.
what conditios are rights for compensation?
- Right to compensation in case a directive is implemented incorrectly or late from a member state government if a directive:
- Creates right/obligations for individual.
- The content of these rights can be identified from the directive articles.
- The damage is a direct result of late or incorrect transposition into national law.
