Eu Law

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Ag Jacobs

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AG Jacobs expressed concerns about the uniformity of the law - directives could be relied upon by those dealing with public bodies only. He said the HDE would ensure people dealing with private bodies would not be disadvantaged, and that there would be more consistency and fairness between MS. He highlighted there was a need to ensure the effectiveness of Community law and for EU law to be applied the same way in all Member States.

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Van Gend

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Test: In order for an individual to be able to enforce a piece of EU legislation before their courts:

1. The provision needs to be sufficiently clear and precise

2. The provision must be unconditional

3. It must leave no room for the exercise of discretion in its implementation by an institution or national authority - This criterion is applicable to Treaty Articles only

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Defrenne

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Held: The Belgian courts asked asked the ECJ whether an individual could rely on a Treaty Article to enforce rights against another individual in national courts. The ECJ used the purposive approach to interpret Article 119 and recognising social aims of the Union, held yes.

The ECJ rejected that argument that Article 119 was addressed expressly to Member States as courts as themselves part of the state and therefore need to ensure the effectiveness of EU law.

Front 4

Van Duyn

Back 4

Directives have Vertical DE

Front 5

Ratti

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deadline to implement has passed.

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Foster

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The ECJ provided criteria for whether a body is an "emanation of the state":

Providing a public service pursuant to a statutory duty OR

The industry/service is under state control OR

Special powers for carrying out its functions

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Arguments for HDE

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Uniformity - EU law should be applied the same way in all Member States

Equality before the law

Directive in the case of Faccini Dori intended to grant cancellation rights to individuals

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Arguments against HDE

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AGAINST

It is the state at fault in failing to implement a Directive, not the individual

The ECJ's own case law to date

An individual could try to use indirect effect

Directives (unlike Regulations) are not designed to be relied upon against individuals

An individual could sue the state for failing to implement a Directive where this failure deprives him of its benefits

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AG Lenz

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A-G Lenz proposed a compromise. He reviewed the history of HDE and understood that pre-TEU Directives were not published - so it indeed was not fair to give them HDE. However, he noted that the recent Treaty on European Union 1993 required all Directives adopted since 1st November 1993 to be published in the EU's Official Journal. As these new directives were in the public domain, individuals can be assumed to know them. He suggested these new Directives should be capable of both VDE and HDE, subject to Van Gend. This satisfies the legitimate expectations principle.

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Indirect Effect

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Indirect effect is an interpretative tool by which individuals may use to rely on Directives against other individuals.

Article 4(3) TEU - as interpreted by the ECJ

National courts are under a duty to interpret national law consistently with EU LAW, so far as it is possible to do so, whether or not the Directive has direct effect.

Indirect effect is a principle on the interpretation of national law.

The use of the principle is left with the court's discretion.

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Van Colson

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Indirect Effect established

Front 12

Marleasing

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The ECJ held "national court must interpret national law in light of any relevant directive, as far as it is possible to do so".

Marleasing also widened the scope of the doctrine by adding onto von Colson - the obligation is on the Courts regardless of the fact the national provisions were adopted before or after the Directive. In Marleasing, no national law had been passed at all to comply with the Directive. It was held that having national legislation passed specifically in the name of the Directive was not necessary.

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Limitations of Indirect Effect

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Where national legislation clearly conflicts with the relevant Directive

- Wagner Miret v Fondo De Garantia Salarial

Where indirect effect would impose criminal liability

- Luciano Arcaro (Criminal Proceedings Against)

Facts: Arcaro was prosecuted in criminal proceedings.

Under italian implementing legislation he was Not Guilty

Under the Directive he was Guilty

Held: The ECJ said indirect effect cannot impose criminal liability.

The limitations of Marleasing

Limits of natural language (Contra legum principle)

Non-imposition of criminal liability

Non-retroactivity

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Francovich

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State Liability case

Facts: The claimants sought arrears of wages following their employers' insolvency. A Directive placed an obligation on Member States to ensure a payout fund for people in such a situation. This Directive was not implemented.

Francovich criteria for a claim:

1. The provision must confer rights on individuals; and

2. The content of those rights must be identifiable from the Directive; and

3. There must be a causal link between the failure to implement the Directive and the damage suffered by the injured parties

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Factortame no4

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Factortame No 4. extended state liability beyond non-implementation. It included poor implementation of a Directive and all breaches of EU law by a MS. There must be:

breach of rule of law conferring rights on individuals

breach must be sufficiently serious

direct causal link between breach and damage

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Sufficiently serious breach test

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Test for a sufficiently serious breach:

MS must manifestly and gravely disregard the limit on exercise of its powers - Factortame, Dillenkofer

Failure to implement a Directive is always a sufficiently serious breach - Dillenkofer

Ex parte BT - factors for a sufficiently serious breach:

Is Directive clear and precise?

Does MS have a lawful excuse?

Has the Commission given any guidance about implementation?

Have other MS made the same mistake?

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Fmg exam structure

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Free Movement of Goods Exam Structure

1. Identify Treaty Article

2. Secondary Legislation

3. Restriction

4. Clarify - IDA/DA?

5. Justifications

6. Proportionality

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CSA CASES

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apply to all affected traders within the terriotory and

affect in the same manner in law and in fact the marketing of domestic products and imports from other MS

Measures relating to selling arrangements - not MEQRs

Ban on resale at a loss - Keck

Goods to be sold only at pharmacies (baby milk case) - Commission v Greece

Advertising restrictions - Hunermund

Restrictions on opening hours - Punto Casa v Capena

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FGA exceptions

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If a measure is a IA, it may be allowed under the "rule of reason" - which has become known as the Cassis 1st principle. The rule of reason recognises that a restriction may be necessary in order to satisfy mandatory requirements relating to:

effectiveness of fiscal supervision

public health

fairness of commercial transactions

consumer protection

This is a non-exhaustive list. The ECJ has since added the following:

protection of culture - Cinetheque

protection of the environment - Re Disposable Beer Cans

It should be noted that the use of the rule of reason is still subject to proportionality - Rau

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Dassonville

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"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having equivalent effect to quantitative restrictions".

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MEQR CASE LAW

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Re Origin Markings

Origin marking rules encourage consumers to by goods of national origin - IA.

Held: MEQR

Irish Souvenirs case

Souvenirs manufacturers elsewhere had to be stamped "foreign". Legislation did not apply to Irish souvenirs - DA.

Held: MEQR

Walter Rau

Belgian legislation required that margarine could only be sold in cube-shaped packaging - IA. Goods therefore had to be repackaged to be sold in Belgium.

Held: MEQR

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Walter Rau

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Least restrictive measure - proportionality

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Geddo

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"Any measures which amount to a total or partial restraint of imports, exports or goods in transit"

i.e. numerical limit - outright bans and quotas

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DE ESSAY STRUCTURE

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Direct effect:

the lack of legal certainty

intro: reason is to promote effectiveness of eu law, inital position no direct effect of directives, changed in Grad, but rather limited, Van Duyn: broader position and subsequent case law. Warner in Enka: stop MS taking benefits from their wrongdoings. Link it to the question, lack of horizontal direct effect has created lack of legal certainty

Case law:

Van Duyn, Deferene (not too much detail)

after implementation only (ratti), however, Walone- no contrary law in between

Marshall: vertical only!!, but this is tempered and then discuss.

AG Jacobs: wanted to overturn Marshall and have vertical and horizontal

But Faccini Dori affirmed vertical only

State:

Marsall: state and public body used interchangeably, emanation of the state

Frateli: very braod: local authority

Foster test nature- very broadly interpreted

Inderect effect:

-van colson case: national court must adopt consitent interpretation, even pieces of non-direct effect must be taken into account

marleasing: national law that was passed before (veeeeery broad, a step too far,)

adenelar: direct effect only apples after implementation

mangold: general principles of law can have direct effect- criticize, will it apply? (legal certainty)

kuckuckdeveci

ams: limits mangold: if the right is too vague of creating a distinct right, mangold will not apply

incidental effect (complete lack of legal certainty):

-CIA security: directive cannot have direct effect to impose an obligation on individual it can have exclusionary effect--> third party cannot rely on national measure, broad case

-Lemens reduces the reach of CIA, only apply to cases where the application of national legislation wouldhinder the use or marketing of a product not in conformity withthem

unileaver italia- faccini dori does not apply to technical regulations brought into force contrary to the directive

-result: directove may produce adverse legal effects for a private party in litigation, as long as they don't take the form of an.... exclusionary effect

-only applies to technical regulations: what is that? legal uncertainty hard to know in advance what will happen

-two theories: tringular theory, and the substitution or exclusionary effect theory--> they will explain some cases but not others, even theorists cannot make sense of that

-MS liability

francovich, brasserie

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Strawberry case

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failure to prevent farmers blocking transport

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Strawberry case

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failure to prevent farmers blocking transport

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Mutual recognition

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Cassis de dijon - if it is lawfully produced in one ms, it should be sold in another

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Strawberry case

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failure to prevent farmers blocking transport

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Mutual recognition

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Cassis de dijon - if it is lawfully produced in one ms, it should be sold in another

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Sunday trading

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Justified through socio cultural characteristics