Eu Law- Relationship Between Eu Law And National Law

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Primacy of EU Law

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Opinion of Council Legal Service June 2007- " It results from the case-law of the Court of justice that primacy of EC law is a cornerstone principle of Community law" Established in Costa/Enel (6/64) Dec

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Direct Effect

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Directly Effective EU Law is that which gives rise to rights or obligations which individuals may enforce before their national courts.

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Van Gend En Loos [1963]

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Basis- art 30 TFEU- Ms not to put custom duties on imports and Exports.

-Eu law provides States and Individuals w/ rights and obligations.

-Such rights and obligations can be enforced before national courts.

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Reyners v Belgium [1974]

Criteria for direct effect

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+Provision must be clear and unambiguous;

+It must be unconditional;

+Its operation must not be dependent on further actionn being taken by the Community or national authorities

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Vertical Direct Effect

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A party invokes a provision of EU law in a National court against a MS.

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Horizontal Direct Effect

Defrenne v Sabena (No. 2) [1976]

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An airline stewardess claiming equal pay as male cabin steward relied on Art 157 TFEU of the EC Treaty. Held: Treaty has both vertical and horizontal direct effect. Provided it is sufficiently precise and unconditional. i.e. it gave rights which could be enforced in a national court.

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Horizontal Direct Effect

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If a party invokes, a provision of EU law in a national court against a private party, this is called horizontal direct effect.

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Alfons Lutticke GmbH [1966]

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Where it was held that a positive obligation could have direct effect once the time limit for implementation has expired.

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Direct Effect of Directives (Art 288(TFEU))

Van Duyn v Home Office [1974]

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+CJ held that Directive 64/221(measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual) was sufficiently precise to have direct effect.

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Rationale

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+Estop a MS from relying on its own wrongdoing: Ratti [1979]

+To make them more effective

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Limitations on the direct effect of Directives

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1.They cannot have direct effect before the time limit for implementation has expired: Ratti[1979]

2.They do not have horizontal direct effect: Marshall (No. 1) [1986]

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Ratti [1979]

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In his defence against a prosecution brought by the Italian state, Mr Ratti sought to rely on a unimplemented directive. Held: that a directive has direct effect it is clear and unconditional, the time for implementation has passed and the other party is the state.

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Disadvantages of no horizontal direct effect

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+effectiveness of directives within the national legal system is restricted

+Uniform application of EU law is restricted;

+discrimination between individuals. e.g. employment in law, a State employee rely on a directive as against an employer, whereas a private employee cannot.

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Strategies to Circumvent this

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+Broad interpretation of the state

+Interpretative obligation(indirect effect)

+'Incidental horizontal direct effect':

+Francovich principle (State liability)

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Interpretation of State

Marshall (No 1) [1986]

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Where the State was acting as employer, its position was no different from that of a private employer. The CJ rejected this, held that it did not matter what capacity the State was acting in; directives could still be relied upon against it. Concerned Equal Treatment Directive.

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Interpretation of State

Criteria

Foster v British Gas [1990]

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CJ defined 'organ of the State' as

1.one that was offering a public service

2.under the control of a public authority and 3.which enjoyed special power.

Cumulative test- Reiser Intl [2004]

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Direct Effect of Decision

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Directly were held to be directly effective in Grad v Finanzamt [1970]

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Direct Effect of Intl Agreements

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In some circumstances Intl agreements can produce direct effects: Kupferberg [1982]

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Examples

Johnston v Chief Constable of the Royal Ulster Constabulary [1986]

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Directive could be relied on against a chief constable, as he is responsible for the direction of the police service, charged by the state.

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Examples

Jimenez Melgar [2001]

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Directive binding on 'all authorities of the MS, including decentralised authorities such as municipalities.'

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Examples

Daughty v Rolls-Royce plc [1992]

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Nationalised body-rolls royce- not an emanation of the state. Although the company was under control of the state, the 'public service' was provided to the state. not to the public, nor did the company enjoy special powers.

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Disadvantage

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•Problem is that it leads to discriminate against individuals who are claiming a right against an individual

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Indirect effect

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Obligations of national courts to interpret and apply national law in a manner which is consistent with the wording and purpose of directives.- Von Colson.

-Applicable in disputes between individuals

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Indirect Effect

Von Colson [1984]

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Germany had wrongly implemented a directive on equal employment rights.

Cj ruled that MS, including national courts, should take all appropriate measures, to give effect to Community law under art 4 TEU. Purposive interpretation of directive.

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Indirect Effect

limitation

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1.Only existed 's o far as possible for national court to give national legislation a Union interpretation.

2.It was unclear whether the obligation extended to legislation which was not framed with the intention of implementing a directive.

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Marleasing [1992]

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Applicable if national law existed prior to dir

A directive which had not been implemented in Spain conflicted with the Spanish Civil Code. CJ ruled that pre-dated or post-dated national legislation should be interpreted in the light of the aims of an unimplemented directive.

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Limitations

By EU law

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+Interpretation cannot result in conflict w/ a general principle of EU law- Kolpinhuis Nijmegen BV [1987]

+Indirect effect only after deadline for transposition expires -Adeneler[2006]

+

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Limitations by

National Law

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+National courts not required to interpret national law contra legem(Against the law)- Wagner Miret[1993]

+Interprete so far as courts discretion under national law allows- Von colso

+

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Incidental Effect

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A private company, cold rely on the directive as a defence t the claim made by another private party- CIA Security [1996]

CIA, claimant brought proceedings against 2 defendants in Belgian courts alleging unfair practices.

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Unilever [2000]

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Extended decision in CIA: reaffirms directives can have horizontal effect. Exception involves substantial procedural defects i.e. where directive regulates relations between individuals and aims to approximate laws by conferring rights and obligation on individuals, e.g

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Reliance on General Principles of EU Law

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Definition: must have constitutional status.- Audiolux SA [2009]

-have horizontal effect- Art 21(1) of Charter of Fundamental Rights [2005] Mangold v Helm[2005]

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Problems w/ Direct Effect

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Confusion over direct,indirect and incidental horizonal effect.

- if MS at fault who is liable for remedy?

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Summary of Direct Effect

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- ECJ relies upon National courts to implement or utilise EU law. National courts become EU courts

-Direct effect also ensures citizens have substantive rights

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State liability

ratiionale

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Francovich[1991]: MS to fulfil their EC obligations to implement( Art 288 TFEU) Certain provision confer rights(Van Gend) that the effectiveness & protection of EU law would be weakened, if individuals could not obtain compensation when their rights were infringed.(Factortame)

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Criteria for remedy incase of breach of EU law

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1. directive must confer rights on individual

2.content of rights must be identifiable by reference to the directive.

3. There must be a causal link between the breach of a state's obligation and the damage suffered by the persons affected.

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Legal Basis

Art 4(3)

Sincere Cooperation

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Pursuant to the principle of sincere cooperation, the Union and MS, in full mutual respect, assist each other in carrying out tasks which flow from Treaties.

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Legal Basis

Art 19 TEU

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Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

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Francovich v Italy [1991]

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In breach of EU law, Italy failed to set up a scheme to compensate workers on the insolvency of their employers and a claim was brought by Mr Francovich.

directive 80/987- MS to provide for employees' arrears wage in event of employers insolvency.

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Legal Basis

Charter of Fundamental Rights

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-Persons whose rights violated, have right to effective remedy.

-Entitled to fair & public hearing within a reasonable time by an independent & impartial tribunal previously established by law. Everyone can possibly be advised & represented.

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Impact of EU Law on National Remedies

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-EU law does not prescribe specific remedies

++ Interim relief

++ Damages

++ Restitution

++ Time Limits

++ State Liabilty

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Regarding wrong implementation of directiev

Ex p British Telecommunications pl [1996]

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Directive held to be unclear and imprecise and reasonably capable of bearing the meaning ascribed to it.

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Breaches other than Non-implementation of A directive

Brasserie du Pecheur[1996]

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ECJ: State liability not confine to failure to implement directives but al acts and omissions of Union Law that could lead to liability. So long as: 1. rule of law must be intended to confer rights on individual 2. breach is sufficiently serious 3. direct causal link between breach & damage.

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Institution 'manifestly and gravely exceeded the limits of its discretion'? Depends on:

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- measure of discretion left by rule to national or EU authorities

-Clarity and precision of the rule breached:

-infringement& damage caused? intentional or voluntary:

-Whether any error of law was excusable.

-Adoption or retention of measures contrary to EU law.

-Position taken by a EU institution might have contributed to the omission.

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For whose action is the State Liable?

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Commission v Belguim- Bind all agencies and organs of a MS even those that are constitutionally independent.

An individual official as well as MS- AGM

+ Courts of last resort- Kobler v Austria

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Kobler v Austria [2003]

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Courts must adjucating in order to be implicated

–Only where the court has ‘manifestly infringed the applicable law’.

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Problems w/ Kobler

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-ECJ claims parties would be different and not reverse original decision- not undermine courts.

-ECJ claims this will enhance effectiveness of judiciary.

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Does the Measure Confer Rights

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Peter Paul v Germany

Failure of German banking supervisory authority to correctly supervise a bank.

Obligation to ensure supervision was not combined with an independent right to compensation.

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Conditions of Liability

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•For liability- not necessary for the infringement of EU law to be established by the ECJ under Art. 258.•Nor is it necessary to prove fault on the part of the national institution concerned going beyond that of a sufficiently serious breach of EU law.

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What is 'Sufficiently serious?'

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-Institution must have manifestly and gravely exceeded the limits of its discretion.

-Breach must be 'inexcusable'

-–be the clarity and precision of the rule breached.

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NO DISCRETION

ex parte Hedley Lomas (Ireland) Ltd

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UK refused Hedley Lomas licenses to export sheep to spain. Lomas argue this breached art 35 TFEU as Uk did not know whether slaughter houses below standard of directive as claimed. ECJ: Infringement sufficiently serious as MS not called upon to make any legislative choices.

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Dilenkofer [1996]

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German govt failed to implement a directive concerned w/ the protection of individuals who bought package holidays. As a result of this failure, the applicants had suffered financial loss when their travel companies become insolvent. Criteria in Factortame no.3 and Brasserie would apply. Where a MS fails to implement a directive by the prescribed date, this in itself amounts to a sufficently serious breach of Union law and satisfies the second limb of the test.

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Norbrook Laboratories Ltd v Minister of Agriculture, Fisheries and Food

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Where MS not called to make legislative choices, & considerably reduced/ no discretion, mere infringement, may be satisfy, sufficiently serious breach’.

Left to national court to decide

Similar decision in Klaus Konle v Austria

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The Claimant Must Prove That Damage has Been Suffered

Schmidberger v Austria (case C-112/00)

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Advocate-General Jacobs- Necessary to establish loss or damage which is attributable, by a direct causal link, to a sufficiently serious breach of EU law. ~Includes a right to claim for lost profit

~Willing to accept that it may not be quantifiable in which case a flat-rate will be used.

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The Damage Must have been Caused by the Breach

Brinkmann Tabakfabriken GmbH

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~The Danish failure to implement a directive was not sufficiently serious to incur liability.

~The classification (of rolling tobacco) was not manifestly contrary to the wording and aim of the directive.

~The Commission and the Finnish government supported the Danish classification.

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Brasserie du Pecheur in the English Courts

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Factortame Ltd (No 5) [1998]- Hobhouse LJ concluded that the UK breach was serious enough to warrant liability Suficiently serious because:

~UK had introduced the measures in primary legislation in order to ensure that the implementation would not be impeded by a legal challenge.

~Comm had advised against legislation.

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Factortame Ltd (No 5)[1998]-Lord Slynn

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~Dissenting judgment

~The views of the Commission should not be conclusive proof as to

>>Whether there has been breach of Union law

>>Whether breach was sufficiently serious to justify an award of damages.

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Relationship of State Liability to Direct Effect

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Direct Effect- No need to consider whether something is 'sufficently serious'

~Can state liability be used in preference to direct and indirect effect?

~Used where gap in protection (Faccini Dori)

~corollary of direct effect (Brasserie du Pecheur)

~An approach of las resort (Lindopark)

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Classifying State Liability in National Law

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State liability remains a hybrid- part national law, part EU law - w/ national courts ultimately responsible for applying the conditions of a particular case.

~National courts decide whether the breached law was intended for the applicant

~Whether link between breach and damage

~Whether damage suffered was type,damages can be awarded for.

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Classifying State Liability in National Law

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A principle of liability for acts in breach of EU law, clearly breaks new constitutional ground in most if not all MS's - Unlikely to be applied overwhelmingly in practice.

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AGM-COS Srl C-470/03

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National law may lay down specific conditions, provided they do not make it impossible or excessively difficult to obtain compensation caused by a MS's breach of EU law.

~Finnish limited to damage caused by criminal offence, the exercise of public authority, other especially serious reasons.

~Too restrictive.

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Tests to apply

1.Francovich test

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1.directive involved rights conferred onindividuals;

2.The content of those rights could beidentified on the basis of the provisions of the directive; 3.There was a causal link between thestates failure and the damage suffered by the persons affected.

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Test

2.Brasserie du Pecheur

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1.The rule of law infringed must beintended to confer rights on individuals

2.The breach must be sufficientlyserious3.There must be a direct causal linkbetween the breach of the obligation resting on the state and the damagesustained by the injured parties.

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Tests

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Kobler- courtBTLehtinen