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EU Public Law Notes Y2
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EU Public LawLecture 1
Tuesday, September 11, 2018
10:35 AM
THE PRINCIPLE OF DIRECT EFFECT I
The Doctrine of Direct Effect: Origin and Evolution
• What is the doctrine of direct effect about?
• Direct effect of Treaty Provisions: Case 26/62 Van Gend en Loos
o Question: whether Article 30 TFEU has direct application towards national law
o Objective of the EEC Treaty (establish common market) + functioning of which is of
direct concern to interested parties in the Community = Treaty is more than an
agreement which only creates mutual obligations between contracting States.
• Confirmation
§ Permeable to the Treaty (which refers to government and people)
§ Establishment of institutions endowed (supplied) with sovereign
rights, which affect MS and citizens
Van Gend en Loos
• Community constitutes new legal order of international law (for benefit of States which have
limited their sovereign rights) & subjects that compromise to MS and nationals
• Community law imposes obligations on individuals & also confers them rights
• Arguments based on Articles 258 & 259 of the Treaty (given by 3 Governments which have
submitted observations to the Court in their statements of the case) are misconceived
(misinterpreted).
• Just because Treaty can enable Commission and other MS to bring State which is not
fulfilling their obligations towards a Court, does not mean national citizen cannot
plead these obligations before a national court (if needed)
• Restriction of the guarantees against infringement of Article 30 by MS by procedures (under
articles 258 & 259) would remove all direct legal protection of individual rights to nationals.
• According to spirit, general scheme & wording of Treaty, Article 30 must be interpreted as
producing direct effects
• Explain the arguments put forward by the court. Were they convincing?
• Having made this claim, the Court set out the criteria that need to be fulfilled for a provision
of EU Law to have direct effect.
• Wording of Article 28 TFEU: contains clear and unconditional prohibition which is a
negative obligation.
Conditions for direct effect
• Clear and precise
• Negative obligation? (NO)
• E.g.: Case 43/75 Defrenne v Sabena
,• Unconditionally
• E.g.: Case 14/83 Von Colson
• E.g.: (2) Case T-191/99 Petrie v Commission
o Article 15 TFEU
• [34] (Van Gend en Loos Case) unconditional, meaning its implementation
must not be subjective to substantive conditions, implementation must
not depend on adoption of following measures which either Community
institutions or MS may take in the exercise of a discretionary power of
assessment.
• [35] Article 15 TFEU is not unconditional and is dependent on the adoption
of subsequent measures
• Not dependent on any further action? (NO)
• E.g.: Case 2/74 Reyners v Belgium
o Article 52 imposes an obligation to get a precise result, the fulfilment which will
make it easier by, but it is not dependent on, the implementation of a programme
of progressive measures
• Current position:
• P. Pescatore ,The Doctrine of ‘Direct Effect’:
o An Infant Disease of Community Law, 8 ELRev 155, at pp. 176-7:
• “A Treaty Article will be accorded direct effect provided that it is intended
to confer rights on individuals and that it is sufficiently clear, precise and
unconditional.”
Vertical and Horizontal Direct Effects
• Vertical direct effect: invoking a provision of EU Law against a M.S
• Horizontal direct effect: invoking a provision of EU Law against a private party
• Horizontal direct effect of Treaty Articles: Case 43/75 Defrenne v SABENA
• Just because certain provisions are only addressed to MS, does not mean those rights
are not conferred at the same time to an individual
• Article 157 TFEU is mandatory by nature, prohibition of discrimination also extends to
all agreements which were intended to regulate paid labor & as well as contracts
between the individuals
See also Viking Line Case C-438/05, paras. 56-66
• Is the reasoning of the court convincing?
Regulations
• Article 288 TFEU
• A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all MS
• Vertical direct effect of regulations
• Horizontal direct effect of regulations
o Case C-253/00 Antonio Munoz Cia SA v Frumar Ltd
, “ Owing to their very nature and their place in the system of sources of
Community law, regulations operate to confer rights on individuals which the
national courts have a duty to protect”
Confirmed in Slaughtered Cow case (Commission v Italy Case 39/72)
Decisions
• Article 288 TFEU
• A decision shall be binding in its entirety. A decision which specifies those to whom it is
addressed shall be binding only on them.
• Case 9/70 Grad “It would be incompatible with the binding effect attributed to
decisions by Article 249 to exclude in principle the possibility that persons affected
may invoke the obligation imposed by a decision’.
• Case C-80/06 Carp
• A.G. Trstenjak: “A decision can be addressed to a private party, in which case it will
bind the addressee. In such cases, the decision may create horizontal direct effect
between private parties, provided that the obligation specified Is sufficiently precise
and unconditional.”
• What if there was no direct effect?
Directives
• THINK: When does this question matter?
• Only when directives have not been implemented, or have been implemented
incorrectly. Otherwise, claims can be made on the basis of national law (which can
create rights and obligations for all).
• Article 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’.
Vertical Direct Effect of Directives
A) Case 41/74 Van Duyn
“12. It would be incompatible with the binding effect attributed to a directive by Article
[288TFEU] to exclude, in principle, the possibility that the obligation which it imposes may be
invoked by those concerned. … It is necessary to examine, in every case, whether the nature,
general scheme and wording of the provision in question are capable of having direct effects
on the relations between Member States and individuals.”
B) Case 148/78 Ratti
“22. … a Member State which has not adopted the implementing measures required by the
directive in the prescribed periods may not rely, as against individuals, on its own failure to
perform the obligations which the directive entails.”
Direct Effect of Directives
• Can the directive be directly effective before the time-limit for its implementation has
expired? Case 148/78 Ratti
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