European Union Law

Front 1

Art 288 TFEU

Back 1

A directive shall be binding upon each MS but shall leave to the national authorities the coice of form and methods.

Directives require transposing into national law and therefore they are not directly applicable, unlike regulations.

Front 2

M&S 2002

Back 2

Meaning of Implementation

Implementation of a directive must be such that it ensures its applicaton in full.

Front 3

Ratti 1978

Back 3

How much freedom do MS have during implementation period?

It is only at the end of the prescribed period and in the event of MS' fault that the directive will have direct effetc; until then MS are free.

MS may not rely on its failure of implementing the directive within the limitation period when it comes to compensate individuals (it works like an estoppel).

Front 4

Wallonie 1997 and also Mangold

Back 4

During the implementation period, MS cannot implement any new national law that would contravene the directive ie liable of seriously compromosing the result prescribed.

Front 5

Becker 1982

Back 5

Directives have vertical effect only. It was held that so long as the directive is sufficiently clear, it can provide, during its implementation period, rights for individuals which can be taken against their national law.

If the criteria of direct effect are satisfied, then directives can be enforceable against the State only (vertical effect).

Front 6

Marshall I

Back 6

Again, it was held that, in this case, Helen could have her rights enforced as she was employed by the state. Had she been employed by a private company, her right to equal treatment would have been infringed. (criticism of directives)

Front 7

Van Duyn

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What is the rationale of direct effect of directives?

The useful effect of such an act would be weakend if individuals were prevented from relying on it before national courts.

Front 8

Faccini Dori 1994

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Why vertical only?

The wording of Art 288 states that a directive cannot of itself impose obligations on individuals and cannot therefore be relied upon as such against an individual.

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Foster

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What comes under the definition of the State as mentioned in article 288?

All organs of the administration, including decentralised authorities such as municipalities, are obliged to apply provisions.

The Court is trying to broaden the definition of State with the view to aid individuals in succeeding their claims but what is actually doing is creating more uncertainty.

Front 10

CIA Security

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Incidental horizontal effect (more uncertainty)

This principles allows the use of EU directives between private legal actions. Whilst an individual cannot be sued for failure to comply with EU directives, the failure of the MS to comply can play an incidental factor in a suit against an individual.

(a burden derived from a directive)

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Indirect effect (definition)

Back 11

The duty of national courts is to interpret and apply their domestic law in consistence with EU law.

Indirect effect should not require contra legem interpretation of national law.

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Marleasing

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Leading case on duty of consistent interpretation.

National law, whether enacted after or before a Directive, shall, as far as possible, give effect to it.

Indirect effect has been expanded by the ECJ requiring all national legislation to be interpreted in the light of all EC law, irrespective whether it is implementing legislation or not.

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Pupino

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As far as possible, so long as it is achievable...

We do not expect national authorities to do the unthinkable, to distort national law. The domestic law must be open to an interpretation consistent with EU law.

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State liability in damages

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The principle of state liability for loss and damage caused to individuals as a result of failure to comply with EU law or breaches of EU law for which the MS can be held responsible, is inherent in the system of the Treaty.

Front 15

Francovich 1991

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The MS has a duty to compensate damages due as a direct result for their failure to comply with EU law or to implement accurately a Directive. The provision does not have to be directly applicable.

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Brasserie du Pecheur and Factortame

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The requirements for there to be an infringement
-the provision infringed must be intended to confer rights on individuals
-the breach must be sufficiently serious
-there must be a direct causal link between the breach and the loss suffered by the individual (always have to prove damage)

If there was an incorrect implementation on behalf of the MS, rather than non-implementation, it will be harder for the individual to prove a sufficiently serious breach.

Front 17

Van Gend en Loos 1963

Back 17

The ECJ defined several conditions in order for a EU legal act to be directly applicable (immediately applicable)
-the provision must be sufficiently clear and precisely stated
-it must be unconditional and not dependent on any other legal provision
-it must confer a specific right upon which a citizen can base a claim