Sources & application of EU Law Flashcards
Order of Treaties
1957 - Treaty of Rome (TFEU) 1986 - Single European Act 1992 - Treaty of Maastricht (TEU) 1997 - Treaty of Amsterdam 1999 - Treaty of Nice 2007 - Treaty of Lisbon
Direct applicability
Recognised as a part of domestic law without the need for implementation
Direct effect
When EU law can be enforced in a domestic court
Example of supremacy of EU law and conflicting national law
Factortame
Van Gend en Loos (1963)
Article 30 can be enforced if the following criteria are fulfilled:
- sufficiently clear, precise & unconditional
- no discretion given to Member States
- it produced direct effects between Member States and citizens
Van Duyn (1974)
For a provision of EU law to have direct effect, it must
- be clear and precise
- be unconditional
- not require any implementation by the Member States
Difference between vertical and horizontal effect
Vertical: enforceable only against the state
Horizontal: enforceable also against private individuals
Defrenne No. 2
To have direct effect, the Directive must give clearly identifiable rights to individuals
Ratti (1979)
Condition for Directive: the time limit for the implementation of the Directive must have passed
Directive can only be enforced vertically (=against the state)
Marshall (1986)
Marshall (1986)
Directive can only be enforced vertically (=against the state)
Condition for Directive: the time limit for the implementation of the Directive must have passed
Ratti (1979)
To have direct effect, the directive must give clearly identifiable rights to individuals
Defrenne No. 2
Foster v British Gas (1990)
A body is a part of the State if:
- subject to the control of the State
- providing a public service
- special powers given to it by the State
A body is a part of the State if:
- subject to the control of the State
- providing a public service
- special powers given to it by the State
Foster v British Gas (1990)
Von Colson (1984)
Indirect effect: national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court
Indirect effect: national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court
Von Colson (1984)
Indirect effect - what it is & which case?
Von Colson (1984) national courts must interpret national law in line with EU law, so an individual can enforce a law from the EU against another individual in a national court
State liability
Francovich (1991)
State is liable for its failure to implement the Directive if:
- the directive gave rights to individuals
- those rights were identifiable within the wording of the Directive
- causal link between the failure to implement and the damage caused to the individual
Brasserie du Pecheur:
Breach must be sufficiently serious
Francovich (1991)
State is liable for its failure to implement the Directive if:
- the directive gave rights to individuals
- those rights were identifiable within the wording of the Directive
- causal link between the failure to implement and the damage caused to the individual
Dillenkofer (1996)
Failure to correctly implement Directive is automatically sufficiently serious
Plaumann (1963)
Individual concern test:
Applicant must show it has attributes or characteristics which distinguish it from all other persons and mark it out in the same manner as addressee
The fact that he operates a trade which COULD be engaged in by any other person will normally be enough to deny individual concern
-> incredibly hard to succeed
Individual concern test:
Applicant must show it has attributes or characteristics which distinguish it from all other persons and mark it out in the same manner as addressee
The fact that he operates a trade which COULD be engaged in by any other person will normally be enough to deny individual concern
-> incredibly hard to succeed
Plaumann (1963)
Cassis rule of reason
Restriction may be necessary in order to satisfy mandatory requirements relating to
- effectiveness of fiscal supervision
- public health
- fairness of commercial transactions
- consumer protection
Non-exhaustive! Case law has added e.g.:
- protection of culture (Cinetheque)
- protection of environment (Commission v Denmark (Danish Bottles))
Keck
Selling arrangements are circumstances of sale (when/how/where) -> not MEQRs UNLESS
1) they put imports at disadvantage OR
2) the measure relates to characteristics of the product
Conditions of Keck
Selling arrangements are not MEQRs (ie do not breach Art 34) only if they
1) apply to all affected traders within the territory AND
2) affect in the same manner, in law and in fact, the marketing of domestic products and imports from other MSs
Vertical direct effect established for Treaties
Van Gend en Loos
Clear
Precise
Unconditional
Not dependent upon further implementation (the last one only for treaties and reg)
Horizontal direct effect established for treaties
Defrenne v Sabena
Establishes vertical direct effect for Regulations
Simmenthal
Simmenthal
Establishes vertical direct effect for Regulations
Slaughtered Cow
Confirms horizontal direct effect for Regulations
Confirms that Regulations are capable of having horizontal direct effect
Slaughtered Cow
Vertical direct effect for Directives
Van Duyn (1974)
Three arguments in van Duyn
1) efficacy argument: directives are supposed to binding, and they would be more binding if individuals could rely upon them
2) textual: because national courts can refer questions relating to any EU measure, it implies that individuals can rely upon them
3) estoppel: MS shouldn’t be able to benefit from their failure to implement
Wagner Miret
Insolvency Directive protects workers’ wages but Spanish law did not apply to higher management.
- > Wagner Miret wanted Spanish law interpreted in conformity with the Directive
- > not possible because the domestic law was unambiguous
Insolvency Directive protects workers’ wages but Spanish law did not apply to higher management.
- > wanted Spanish law interpreted in conformity with the Directive
- > not possible because the domestic law was unambiguous
Wagner Miret
IMPACT
Fixed-Term Work Directive was implemented in Ireland in 2003 although DL was 2001
- > some civil servants had their contracts renewed before this
- > did indirect effect require the 2003 act to be applied retrospectively?
HELD: indirect effect can’t serve as the basis for an interpretation of national law contra legem (against the law)
Fixed-Term Work Directive was implemented in Ireland in 2003 although DL was 2001
- > some civil servants had their contracts renewed before this
- > did indirect effect require the 2003 act to be applied retrospectively?
HELD: indirect effect can’t serve as the basis for an interpretation of national law contra legem (against the law)
IMPACT
indirect effect can’t serve as the basis for an interpretation of national law contra legem (against the law)
IMPACT
Mangold (2005)
Because the Directive implemented a General Principle of EU law, it had horizontal direct effect EVEN BEFORE the period for implementation expires
CONTROVERSIAL!
Because the Directive implemented a General Principle of EU law, it had horizontal direct effect EVEN BEFORE the period for implementation expires
CONTROVERSIAL!
Mangold (2005)
Critique of EU decision making
1) unresponsive to democratic pressures because a change in the Parliament’s composition does not have a major effect to policies
2) executive dominance at the expense of national parliaments
- > partial solution: EP’s direct elections; however: limited powers, lack of voters’ interest, absence of a developed party system
3) technocrats and national interest groups have dominated decision-making
4) distance to a regular citizen
4) lack of transparency, complexity
- especially decision-making by the Council of Ministers is done behind closed doors
- difficult to understand for other than experts
5) substantive imbalance: writers from the Left think there’s an imbalance between labour and market as a result of freeing up the European market
Moravcsik’s defence against democratic deficit
“constitutional checks and balances, indirect democratic control via national governments and increasing powers of EP are sufficient to ensure EU-policy making is in nearly all cases clear, transparent, effective and politically responsive to the demands of European citizens”
“constitutional checks and balances, indirect democratic control via national governments and increasing powers of EP are sufficient to ensure EU-policy making is in nearly all cases clear, transparent, effective and politically responsive to the demands of European citizens”
Moravcsik’s defence against democratic deficit
