Eu Law Revision Notes 5a3q1k

Topic 5 EU law revision notes i)

The concept of direct effect

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Distinguish ‘direct effect’ from ‘direct applicability’ - Although used interchangeably by the courts, difference rather substantial - Article 249 (189) of the EC Treaty specifically mentions the concept of direct applicability, but is silent as to the concept of direct effect, which was instead developed by the ECJ in the case of Van Gend en Loos. - Direct applicability applies only to regulations – they take effect in domestic law of Member States without the need for further enactment; s2 (1) of the ECA 1972 recognizes the existence of directly applicable provisions and states that they ‘are without any further enactment to be given legal effect or use in the United Kingdom’.

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Distinction between public and private law enforcement - Article 226 of the Treat allowed the Commission to sue MS before the ECJ for breach of Community law - public - Van Gend en Loos – ECJ legitimated private law enforcement by holding that Treaty Articles could have direct effect such that an individual could rely on them before the national courts and challenge inconsistent national action – the ECJ thus brought the individuals into Community’s legal order (contrast with the usual effect of international treaties which cannot be enforced by individuals)

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The academic and judicial uncertainty over the meaning of ‘direct effect’ a) Broader definition – the capacity of a provision of EC law to be invoked before a national court (objective direct effect) b) Narrower definition – capacity of a provision of EC law to confer rights on individuals which they may enforce before a national court (subjective direct effect) - The degree of difference in definition is dependent upon the conception of ‘rights’ a) Right to invoke EC law in a national court to assist one’s case 1

b) Substantive right to be relied upon by the individual in a national court, entitlement to a particular remedy and the imposition of a corresponding liability or duty on another party

ii)

Direct effect of Treaty Provisions

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Van Gend en Loos - ‘the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields, and the subjects of which compromise not only the member-states, but also their nationals. Community law, therefore, apart from the legislation by the member-states, not only imposes obligations on individuals but also confers on them legal rights.’ - Treaty Articles are capable of direct effect - Public enforcement of EC law via Article 226 did not preclude private enforcement via direct effect (a new enforcement method was needed to ensure that Member States complied with the provisions to which they have agreed). - Treaty Articles direct effect test: 1) Provision is self-executing 2) It is clear, negative, unconditional, containing no reservation on the part of the MS 3) It is not dependant on any national interpreting measure (does not require enforcement via domestic law, such as via enactment of a Parliament Act).

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Original conditions for the direct effect have been loosened since Van Gend en Loos, although the ECJ still sometimes finds the Treaty Articles as not having a direct effect

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The current position is that a Treaty Article will be accorded direct effect provided that a) It is intended to confer rights on individuals b) It is sufficiently clear, precise and unconditional

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The test leaves the Community courts with a lot of room for manoeuvre

iii)

Legal effect of Regulations

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Article 249 - ...binding in their entirety and directly applicable in all Member States Direct effect affirmed in the Slaughtered Cow case – ‘owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect’ It is only if a Member State by way of a national measure alters, obstructs or obscures the direct effect of regulations that it will be held to constitute a breach of EC law – Member States can provide in national legislation for appropriate sanctions not provided for in regulation and continue to regulate issues not covered in the regulation

iv)   

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Art. 249-....binding in its entirety upon those to whom it is addressed Usually not a general measure (like a regulation) but an individual one, directed at certain addressee/s. Held to be capable of direct effect in Grad, despite the fact that Art 249 made no reference to its direct applicability (unlike in case of regulations). The Court ruled that it did not follow from this that other categories of legal measures mentioned in the Article can never produce similar effect. Could be in suitable cases invoked by individuals before the national courts.

v) 

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Legal Effect of Decisions

Legal effect of Directives

1) Generally Article 249 – a directive shall be binding as to the result to be achieved upon each Member State to whom it is addressed but shall leave to the national authorities the choice of form and methods MS must implement the provisions within the time limits laid down in the directive Directive is an instrument of harmonization used by Community institutions to bring together or coordinate disparate laws of Member States in various fields. Eventual implementation hence does not have to be uniform in all MS, although the aim must be secured. **Van Duyn case - The ECJ held that directives could in principle have direct effect , because of the: 3

a) Functional reason – directives are binding and will be more effectively enforced if individuals can rely on them b) Textual reason – Article 234 allows national courts to refer questions concerning any community measure to the ECJ, including directives, and this implied that such acts could be invoked by individuals before the national courts. c) Estoppel argument – MS were precluded by their failure to implement the directive properly from refusing to recognise its binding effect in cases where it was pleaded against them; the MS should have implement the directive and where it had not done so it should not be allowed on its failure to implement it as to deny the binding effect of the directive after the date for implementation had ed. 

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2) Time Limits The directive may have an impact before time limit for its implementation has expired – although the MS are not obliged to implement it before the expiration date they are obliged during that time period to refrain from adopting any measures which might compromise the result prescribed by the directive. Even after the MS had implemented the directive into national law, an individual can rely on its provisions directly against the State, as long as then directive is not being applied in practice properly. 3) The vertical/horizontal distinction

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Marshall - ECJ held that direct effect of a directive could not be pleaded against an individual, but only against the state (no horizontal effect) 4) Expansion of direct vertical effect by expanding the scope of public authority

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Expansion of the notion of public body in Marshall (Health Authority) and Foster v British Gas (British Gas) **Foster v BG - Held that the provisions of a directive can be relied on against organizations or bodies which are subject to the authority or control of the state or have special powers

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beyond those which result from the normal rules applicable to individuals. Key issue – whether D was part of the state / very broad conception of public body resulted, although no clear definition was provided by the court and it remains unclear what level of control the State must have over the body in question for it to be deemed part of the State

5) Indirect effect: principle of harmonious interpretation 

Requires national law to be interpreted ‘in light of’ the directives

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**Von Colson - National courts are required to interpret their national law in light of the wording and purpose of the Directive in order to achieve the result which is binding on the MS. It is for the national court to interpret and apply legislation adopted for implementation of Directive in conformity with requirements of the community law; at least in so far as it is given the discretion do so under national law. - ECJ expressly identified courts as organs of the State which are responsible for the fulfilment of Community obligations.

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Also applies in horizontal case, between private parties - **Marleasing - Von Colson was affirmed, but this time between private parties; also confirmed that an unimplemented directive could be relied upon to influence interpretation of national law in a case between individuals.

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The obligation applies to all national law, not only to legislation implementing the Directive, whether it predates or post-dates the Directive; whether it has any specific connection with the Directive or not (Marleasing)

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The obligation is strong, but does not require a contra legem interpretation of national law – it is up to the national courts to decide whether it is possible or would result in a contra legem reading (Dori)

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The positive obligation of harmonious interpretation applies only when the time limit for the implementation of Directive has expired, BUT the courts still have a negative obligation to refrain as far as is possible from interpreting the domestic law in a manner which might compromise the objective pursued by the Directive 6) Indicental horizontal effect

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Permits the use of unimplemented directives in certain cases between private parties, thus lessening the impact of Marshall (no-horizontal-effect-principle) Directives can have a limited form of direct effect where they do not directly impose obligations on individuals Exclusionary effect – a directive is invoked in a case between individuals to preclude the application of a conflicting provision of national law, the result being that one of the parties to the case is subject to legal liability or a disadvantage to which he would not have been a subject to had the offending national law been applied (contrast with the substitution effect) 7) The principle of State liability for damages for nonimplementation of a Directive

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Another way for an individual to enforce provisions of a Directive despite the prohibition of horizontal effect is to sue the MS for damages for loss caused by the State’s failure to implement the directive (Francovich)

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Francovich - Held that full effectiveness of Community rules would be impaired and the protection of rights they grant weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law for which a MS can be held responsible

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Brasserie v & Factortame - Confirmed Francovich - Said the test for whether MS will be liable to compensate is: a) Is the breach of the Directive sufficiently serious? b) Did the MS attempt to implement it? 6

c) Was there any case law precedent/guidance from the ECJ?

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Kobler - The principle of state liability applies even to a court at last instance

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