#14632 - Direct Indirect Effect - GDL EU Law

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Direct Effect

Treaty Articles

The ‘new legal order’ which encompasses not only states but the citizens within those states:

Van Gend en Loos

Customs duties were imposed antagonistic to Art 30 TFEU – could this provision be effective in a national court?

Held: direct effect possible & flowing from the objective of the treaty though not necessarily its exact wordings

• “according to the spirit, the general scheme and the wording of the Treaty” Art 30 produces direct effects and creates enforceable individual rights”

Established direct effect possible where:

• Clear and unconditional prohibition

• Requiring no legislative intervention by the MS

Here it was more likely to be directly effective because it was a negative obligation, rather than positive one

NB: judgment = narrow & vague as to the general application of direct effect

Reyners v Belgium

Art 51 TFEU ‘official authority’ argued to extend to the legal profession as an exemption from the free movement of services Art 56 TFEU

Held: Art 51 directly effective despite the fact directives had not been adopted

• “obligation to attain a precise result, the fulfilment of which...(was) not dependent on the implementation of a programme of progressive measures” i.e. directives

Defrenne v Sabena

Female air stewardesses retirement age -> alleged in breach of Art 157(1) TFEU right to equal pay

Held: provision had general purpose to stop discrimination; also had a direct purpose to stop discrimination in individual cases. Such provisions may be directly enforceable where they transfer a right to a class of individuals

HORIZONTAL EFFECT: this case dealt with the horizontal effectiveness of article provisions (Sabena pointed out that it was not an emanation of the state, and the provision was directed towards states)

Held: the wording of the provision would not preclude private liability as the objective is to enable MS to uphold rights in a court of law – this necessitates horizontal effect

• “Art [157] is mandatory in nature...extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals”

Regulations

Leonesio v Italian Ministry of Agriculture: a regulation is capable of direct effect if it is clear & unconditional -> it must be applied by the courts even if there is conflicting domestic legislation

Decisions

Grad v Finanzamt Traunstein: the wording of Art 288 does not preclude decisions giving rise to direct effects

International Agreements

Kupferberg: CoJ notes the difference between international & EU obligations -> international agreements may only be directly effective where:

• Clear & precise

• The determination of this question must be inkeeping with the “object and purpose” of the agreement

Directives:

Vertical Direct Effect

Art 288 TFEU “‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’.

A directive is designed to impose duties on states, not individuals, so it would be inappropriate to make it directly applicable i.e. without implementation by MS

HOWEVER the “dangerously elastic quality of directives” (F Mancini) has given rise to some judicial activism in ensuring that Community law is implemented in a uniform fashion with adequate protection of individual rights

Direct effect will be sought when:

• CoJ will not take up case for direct enforcement

• Complainant seeks damages through state liability

• To defend directly effective provisions

Adeneler 2006

Directive transposed too late. When did the interpretative duty run from?

Held: from the time it ought to have been transposed. Until that time there was a more limited obligation to interpret domestic law in a non-antagonistic way. This applies to courts

• “the MS to which it is addressed must refrain from taking any measures liable seriously to compromise the attainment of the result prescribed by it…in this connection it is immaterial whether or not the provision…has been adopted” at 121

Van Duyn

Dutch woman accepted job with scientologist group & denied entry by government who were discouraging scientology – infringement of Art 45(3) TFEU free movement of workers – relied on Free Movement of Worker Directive which gave the public policy exception which was based ‘on personal conduct’

Held: the personal conduct provision was directly effective – however they found in this case that her action was personal conduct, not an association

• “whether the nature, general scheme and wording of the provision in question are capable of having direct effects”

Established direct effect because:

• If regulations are directly applicable (Art 249 EC Treaty) they have direct effect

• Other categories may also have direct effect

• Binding effect of directives under Art 288 would mean it would be inappropriate to exclude

• Effectiveness would be compromised if individuals could not rely on it

• Legal certainty requires that a person should be able to rely on legislative acts of the EU

• Pescatore – motivated by “une certain idée de L’Europe...and not arguments based on the legal technicalities of the matter”

Ratti (1)

Directive about packaging & labelling of solvents

Held: after the expiration of implementation for a directive, the defaulting MS must disapply its internal law if it is conflict

Ratti (2)

Could a directive be directly effective before expiration of implementation date?

Held: until the expiration the MS “remains free in that field” – this is because directives impose duties on states & direct effect before expiration of implementation date would remove this duty. Also the principle of legitimate expectation is not engaged as pre-implementation there is no such thing.

Justification:

• Effectiveness: Nederlanse Ondernemingen: “the useful effect of such an act would be weakened”

• Estoppel: Marshall

Threat to supremacy?

Cohn Bendit

Conseil D’Etat forbade prelim ref about the constitutional status of directly effective directives

Held: (Conseil d’Etat): technical reading of the treaty saw direct effect precluded from directives

• “a clear and deliberate act of defiance” T Hartley

Madame Perreux 2009 Conseil D’Etat recognised vertical direct effect

Emanation of the State

Marshall

NHS retirement age in breach of EU directive against sex discrimination

Held: Van Gend en Loos clarity & precision satisfied; Von Colson interpretative duty as a justifier to direct effect; NHS as an emanation of the state (where debate focused)

• Directive may not impose obligations on an individual.

• However an emanation of the state is not dependent on its capacity as employer or public authority

• Rejected argument based on an arbitrary distinction between protection for public/private sector employees as if the MS had correctly implemented the directive there would be no such inequality (estoppel type argument)

Foster v British Gas

1. Public service under State control

2. Special powers

• Tax authorities: Becker & ECSC v Acciaierie e Ferriere Busseni

• Local authorities: Fratelli Constanzo

• Independent bodies resp. for maintenance of public order: Johnston v Chief Constable of the Royal Ulster Constabulary

• Public health authorities: Marshall

Horizontal Direct Effect

Paola Faccini Dori

Wanted to enjoy the contractual cooling off period provided for by a directive

Held: no capacity for horizontal direct effect of directives, because this goes beyond the conferred competence of Art 288 which provides for direct applicability & direct effect only for regulations:

• AG Lenz, however, is in favour of horizontal direct effect:

  • Effet utile

  • Against the general principle of discrimination to give some claimants better protection that others

  • Democratic deficit of direct effect: remedied by EP’s expansion of power

Incidental Effect

Where a directive:

1. Imposes burdens on third parties e.g. local authority

2. Imposes burdens on private parties e.g. contractual rights

3. Makes an act of the MS allowing party A to do something affecting party B illegal, party B may rely on incidental direct effect (most controversial)

   1. In this instance, however, the losses are not borne by the state – they are borne by private parties, so it is essentially horizontal direct effect

Smith & Nephew: vertical direct effect of directive having incidental effects on competitor

CIA Security

CIA had attempted to market a burglar alarm in Belgium that was not compatible with Belgian technical specifications. However, the Belgian government had failed to report these specifications to the EU, as required by a directive

Held: sufficiently precise & unconditional provision. Wide-reaching effet utile reasoning – breach substantially reduced the effectiveness of the directive and therefore the Belgian law was inapplicable to individuals.

Therefore, it had affected the individual’s legal rights to carry out this activity, and the directive could be relied upon in this case.

HOWEVER: Johannes Lemmens attempt to get out of a DUI through non-compliance with EU spec failed because the objective of the directive was “one of the foundations of the Community” i.e. free movement of goods

Unilever

Italy introduced labelling law in contradiction to EU directive. Upon notifying the Commission, they instructed them to suspend the law in wait of a regulation. Central Food then refused delivery of olive oil as it was in breach of the Italian law. Unilever relied on the directive

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