L3: Direct effect

Question 1

Van Gend en Loos

Answer 1

Importation of urea formaldehyde from Germany
Co disagreed with the duties charged by Dutch inland Revenue on importation
Netherlands increased duties by changing tariff classification
Issue: Could a standstill provision contained in an international agreement signed by MS have any legal effects between them?

Question 2

Why in Van Gend en Loos was the doctrine of direct effect explained?

Answer 2

The EU 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, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their heritage

Question 3

Are all provisions capable of direct effect ?

Answer 3

No

Question 4

What is the test for whether a provision of EU law is capable of direct effect?

Answer 4

The provision of EU law in question must be clear, precise and unconditional

Question 5

What does it mean for a provision to be conditional?

Answer 5

Unless conditions A,B,C are satisfied (e.g MS are not to impose customs duties until the commission have acted)

Question 6

What is the principle of direct effect?

Answer 6

Individuals are able to invoke provisions of EU law in national courts

Question 7

What is the function of a direct effect in action?

Answer 7

1) May create a new rule which previously did not exist in national law applied to the case in hand
2) With the principle of primacy, may exclude the application of an existing but contrary national rule

Question 8

What is vertical effect?

Answer 8

Individual sues the state OR state sues the individual

Question 9

What is horizontal effect?

Answer 9

Private individuals

Question 10

Are treaty provisions capable of direct effect?

Answer 10

Treaty provisions can be invoked in any legal relationship.
EU charter of fundamental rights now a part of primary law

Question 11

What are regulations?

Answer 11

Binding in its entirety and directly applicable to MS. Once entered into force, is immediately applicable in all MS’s

Question 12

What kinds of decisions are there? Art 288

Answer 12

Addressed & Non-addressed

Question 13

Addressed decisions

Answer 13

An individual act, stating its addressees

Question 14

Non-addressed decision

Answer 14

Amounts to a legislative act but does not expressly name its addressees

Question 15

Is a decision directly applicable?

Answer 15

Decision addressed to concrete persons other than a MS is binding on its entirety, capable of direct effect provided it’s provisions are sufficiently clear, precise and unconditional

Question 16

Are decisions capable of horizontal direct effect?

Answer 16

No, limited to vertical situations

Question 17

Van Duyn

Answer 17

Directives are vertically directly effective
Dutch national refused leave to enter the UK to take employment in church of scientology
UK considered the activities of the church to be socially harmful
VD wished to rely on the provisions of a directive
Implementation period for MS to transpose the directive into national legal order had passed

Question 18

What is the effect of a directive?

Answer 18

Binding upon each MS as to the results that are to be achieved, but the form and method for such implementation is to their discretion

Question 19

What is the estoppel argument?

Answer 19

A MS that has failed to implement a directive cannot rely on that failure as a defence against an individual invoking that directive

Question 20

What is the effect of the UK failing to transpose a directive?

Answer 20

If the UK transposed the directive on time/correctly, it could have exercised it’s choice on how it wished to do so and by what means. Failure = forfeiture of the choice
MS is precluded from enforcing non-implemented directive against it’s own nationals

Question 21

Can a directive be directly effective in horizontal relationships against individuals?

Answer 21

Marshall challenged retirement age for women in the UK (she was 62, retirement age for men was 65)
She wished to continue working
Could she rely on the provisions of a directive prohibiting sex discrimination against her employer?
Directives cannot be directly effective on individuals

Question 22

What is a member state, according to Marshall?

Answer 22

Any organisation or body which is subject to the authority or control of the state (hospitals, state owned companies, any private bodies entrusted with the exercise of any aspect of public authority)

Question 23

What is the principle of indirect effect?

Answer 23

Duty of national bodies to interpret, as far as possible, all national law in light of and in conformance with EU law

Question 24

Van Colson

Answer 24

When it applies to domestic law, and in particular legislative provisions specifically adopted for the purpose of implementing the requirements of a directive, the national courts are bound to interpret national law as far as possible in the light of the wording and purpose of the directive concerned in order to achieve the result sought by the directive

Question 25

What are the 3 limits to the duty of consistent interpretation?

Answer 25

1) Interpretative methods recognised by national law
2) General principles of law
3) No interpretation contra legem

Question 26

Does indirect effect apply to directive before the implementation period

Answer 26

No

Question 27

Facts of Van Colson

Answer 27

A German court had found that sex discrimination had occurred but that national law limited compensation to the reimbursement of travel expenses. Article 6 of Directive 76/207 required Member States to introduce measures allowing individuals to pursue sex discrimination claims by judicial process..

The Court of Justice asserted that the measures must be ‘sufficiently effective to achieve the objective of the directive’ and that the national provision would not satisfy this requirement. However, Article 6 was not sufficiently precise to be directly effective. Nonetheless, Member States must, under (former) Article 5 EC (now Article 4 TEU) take all appropriate measures to fulfil their [EU] obligations. The national court (as part of the state) must interpret the national law in the light of the wording and purpose of the Directive.

Question 28

Faccini

Answer 28

Facts: The Italian claimant entered into a contract to buy a language tuition course whilst she was at a railway station. She changed her mind and tried to cancel, but the supplier insisted on payment. An EU Directive required that there be a ‘cooling off’ period for consumer transactions entered into away from business premises during which the consumer might cancel but this had not been implemented into Italian law.

Held: The Court of Justice reiterated that Member States’ courts are under a duty to try and interpret national law so as to give effect to a directive. If it was not possible to do so without completely distorting the wording of the national legislation, such as in this case, then the appropriate remedy was for the affected individual to seek damages for breach of EU law (see below).

Question 29

What is the principle of primacy/supremacy?

Answer 29

In the case of conflict, EU law prevails over national law - National courts must apply EU law and disapply conflicting national law

Question 30

Do recommendations / opinions have binding force?

Answer 30

No

Question 31

What is the justification for supremacy?

Answer 31

Treaty = creation of a new legal system. EU law must be capable of meaning the same thing and produce the same effect in all MS
EU law

Question 32

What if EU law infringes fundamental rights and freedoms of the MS constitution?

Answer 32

CJEU will assess fundamental rights compliance with EU fundamental rights norms

Question 33

Simmenthal

Answer 33

Co imports beef from france into italy
Italian law imposes fee for veterinary check at italian border
Conflict between EU free movement principles and Italian law passed after Italy joined EEC
Should an italian judge apply eu law or refer to italian constitutional court to rule on constitutionality
Supremacy creates a duty on national courts to provide full and effective protection of EU rights

Question 34

What was held in SImmenthal?

Answer 34

Conflicting national law must be disapplied

Question 35

What are the 3 forms of EU law?

Answer 35

Regulations, Directives and Decisions

Question 36

Defrenne v Sabena

Answer 36

D worked for Sabena (Belgian airline)
Sabrena paid male worked more than females for identical tasks
Contrary to article 119 eec
Issue: Is article 119 capable of direct effect?

Question 37

Ratti

Answer 37

Individuals can rely on provisions and directives against the state provided that the deadline for implementing the directive has passed
Ratti sold solvents and varnishes in Germany
2 EU directives requiring specific packaging and labelling
Ratti can rely upon implemented directive, but not the other before end of transposition period

Question 38

Becker

Answer 38

A MS which has not adopted, within the specified time limit, the implementing measures prescribed in the directive, cannot raise the objection, as against individuals, that it has not fulfilled the obligations arising from the directive

Question 39

Costa v Enel

Answer 39

Italian legislation incompatible with treaty, adopted after italy joined the EEC
could subsequent national legislation unilaterally derogate from treaty obligation? NO

Question 40

What is state liability?

Answer 40

A remedy for individuals who have suffered a loss due to MS’s failure to implement or apply EU law

Question 41

Brasserie du Pecheur conditions for state liability

Answer 41

1) The provision of EU law intended to confer rights upon individuals
2) The breach of EU law must be sufficiently serious
3) There must be a causal link between the state’s failure and damages suffered

Question 42

What is the test for whether a body is public for the purposes of vertical direct effect (Foster v British Gas)

Answer 42

(1) a body made responsible by the state for providing a public service; (2) under state control; (3) with special powers for that purpose, beyond those normally applicable between individuals.