Direct Effect And Indirect Effect

Front 1

The doctrine of direct effect

Back 1

- May be seen as an extension of the doctrine ofsupremacy

- Supremacy resolves any dispute of primacybetween MS and the EU. Direct effect will protect rights which the doctrine ofsupremacy on its own may not.

Front 2

Directly effective measures

Back 2

- Measure is directly effective if there is theability to rely on that provision of EU law before the national courts

- How to recognise a directly effective measure:where rights have been conferred under EU law those rights are to be upheld inthe national courts

- New legal order: rights are conferred by theTreaty becoming part of our legal heritage

Front 3

Van Gend

Back 3

1)MSlimit their sovereignty;

2) Rights are conferred unto individuals and

3) Rightsarise by express grant or obligations

Front 4

What does Van Gend establish

Back 4

- establishes vertical direct effect of Treatyprovisions. Case involves import of goods from Germany into the Netherlands.Old Art 12 EEC

– prohibition on the increase of customs duties. Held an obligation has been imposed on theState but no indication that an individual should be able to rely.

· Treaty was directly effective has they reliedupon the treaty – start of a right basedlaw (rights of citizens begin to emerge)

Front 5

Art 12 EC

Back 5

- imposed a negative obligation on the State, nofurther steps were needed in order to perfect it and therefore ideal forproducing direct effects

- The argument is contingent on the rightconferred – preferred by the Court -> court must uphold the rights conferredon the individuals

- Once the principle is adopted the right can bedropped e.g. environmental cases – reliant on invoked right

Front 6

To rely on direct effect measure must be

Back 6

clear, precise and unambiguous

Front 7

Francovich

Back 7

· held that MS could be liable to pay compensationto individuals who suffered a loss by reason of the member state's failure totranspose an EU directive into national law- Must bean unconditional obligation that requires no further action to be taken byCommunity or MS

Front 8

Test of sufficiently operational suggested

Back 8

AG Gerven v British Coal

Front 9

Established the principle of horizontal direct effect of treaty provisions

Back 9

Walrave and Koch rCBm

Front 10

Defrennev Sabena: nito_cg

Back 10

- MS to ensure ‘the application of the principle that men and women should receiveequal pay for equal work’.

- No clear negative obligation. ‘Pay, work’ bothleft undefined. A political decision forcing MS to uphold Treatyobligationsbsp;q

Front 11

1. Direct effect of Regulationsibri

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- ART 288TFEU: ‘general application binding in its entirety and directly applicable.- Nonecessity for transposition – takes place automatically in the MS legalsystems- May berelied upon in the same way as a piece of national legislation – e.g Reg1612/68 Right of migrant workers and their families

Front 12

1. Direct effect of Decisions

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- Directly applicability describes how regulationstake their place in national lawDecisionsare not directly applicable but ECJ ruled this did not prevent them beingdirectly effective

Front 13

Decisions may have direct effect when they referto a Member State as the addressee. TheCourt of Justice therefore recognisesonly a direct vertical effect

Back 13

Hansa Fleisch

Front 14

Art288 TFEU: binding on the addressee – enforceableby anyone having an interest in the execution of the obligation, not just theCommission

Back 14

Grad v Finanzamt

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Directives - Art 288 TFEU

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- binding,as to the result to be achieved, on each MS addressed, leaving the national authorities choice of form and methods

Front 16

Harmonisation tool

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- stipulates outcome that MS much achieve butmethod of achieving result may vary within MS

Front 17

Direct effect of directives.

· despite the wording of Art 288 – if thedirective is binding, the possibility of relying on it must not be excluded. A directive has direct effect when itsprovisions are unconditional and sufficiently clear and precise. However, it can only have direct vertical effectand it is only valid if the MemberStates have not transposed the directive by the deadline· Usefuleffect is weakened if individuals cannot rely on directives before theirnational courts wn_goo���u��`

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VanDuyn

Front 18

No horizontal effect for directives.

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· Marshall: obiter by the courtthat there cannot be an horizontal direct effect on directives· Further confirmed by the Faccini Dori: couldnot rely on the directive has it was in the horizontal phrase – application ofan linguistic approach by the court· Art 288, regulationis seen as capable of conferring direct rights, the directive is not.Inequality of rights may be redressed by the MS, or use of other remediesDh

Front 19

Obligation to comply:

- Manufacturer prosecuted for failure to complywith Italian labelling legislation. Held: deadline for implementation passedfor one directive so that Ratti could rely on it for defence. the other had notreached date for implementation so did not create direct effects and Ratticould not rely on it as defence

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Ratti

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‘where a directive is transposed belatedly, the general obligation owed bynational courts to interpret domestic law in conformity with the directiveexist only once the period of itstransposition has expired –when the implementation period expires

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Adenelerand others

Front 21

Benefit of the doctrine of direct effect

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· Dualeffect of doctrine: enforcement of EU law against the MSand the creation of a rights-based law

· MS should not be able to rely on theiromission to implement thedirective

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Limitationsof the doctrine

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· Not every measure is capable of beingdirectly effective: may not be capable of conferring right or may notbe intended to confer rights

· No horizontal direct effect of directives

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Incidental direct effect of directives.

- MS failing to comply with EU proceduralrequirements imposed by Directives. No substantive right conferred and noobligation imposed on individuals. Proceedingsbetween private parties: remove the national law, but no EU lawreplaces it – conflict with a regulation that does not createobligations, can’t rely on EU standards

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Unilever

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Indirect direct effect of directives

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- Indirect effect describes a situation wherenational courts are required to interpret national law in line with anunimplemented/ badly implemented directiveate p7X

Front 25

casedeals with situation where MS had failed to implement a directive correctly. ECJruled that national courts shouldinterpret national law in line with the directive, "in so far as it isgiven discretion to do so under national lawy:CaliRƪ

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Von Colson

Front 26

- ECJextended indirect effect to situations where the member state concerned hadnot implemented the directive at all.

- Simplyindirect direct effect of directives is possible and it requires the national courtto interpret law has far as possible

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Marleasing

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Alternative remedies

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- Damages against MS which was established in Francovich

- Begaderm – harmonisedcondition for damages. Test: sufficiently serious breach must occur in order to receive damages