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GDL/MA law EU notes for problem question, helped me get 84 in the exam.
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Direct Effect and Supremacy: Direct Effect: refers to the possibility that some provisions of EU law confer rights on individuals, which
can be enforced in national courts.
Direct Applicability: Direct applicability is the doctrine by which a Treaty Article or Regulation is
automatically a part of the MS’s legal system – it does not need to be implemented, and no additional
measures are required.
o Directives are not directly applicable, as they must be implemented in national legislation. They
are only binding on a MS “as to the result to be achieved” art. 288 TFEU, not the means.
Directives only have direct effect in giving rise to rights where they are implemented into
national legislation, or where certain conditions are satisfied.
Van Gend en Loos: established that Treaty Articles are directly effective.
Supremacy of EU Law:
o Costa v ENEL established that EU law is supreme over national laws – the state cannot choose
not to follow an Article. This was confirmed in Simmenthal: individuals gain the rights at the
cost of the MS’s sovereignty.
o National courts of the EU typically accept the supremacy of EU law but may reserve the right to
review the compatibility of EU law with their own constitutions. German courts have in
particular challenged through the popularly named “So-Long” cases.
Internationale Handelsgescellschaft (Solange I) (1970) the court “provisionally” ruled
that, in the case of a conflict between EU laws and the guarantee of fundamental rights
under the German constitution, German constitutional rights prevailed.
After protracted debate, in Solange II the court affirmed its qualified satisfaction with
the fundamental rights of the EU and held that “so long” as EU law generally ensures
effective protection of fundamental rights, the German Constitutional Court will not
decide on the application of EU secondary legislation.
More recently in 2020 the German courts have made a further challenge to the EU. In
the Public Sector Purchase Programme (PSPP) judgement the German Constitutional
Court declared a decision of the CJ Ultra Vires in Germany.
o The leading UK case was R v Secretary of State for Transport ex parte Factortame Ltd (No 2):
HoL held that, where UK law conflicted with EU, the court had the power to “disapply” the UK
statute.
Conditions for direct effect of treaty articles and regulations (Van Gend):
o Must be clear and precise: the provision gives rise to identifiable rights, and the obligations
must be set out in unequivocal terms; and
o Unconditional: the provision does not depend on other measures and the state has no
discretion in implementation.
Treaty articles: can also have both horizontal (Defrenne v Sabena No.2) and vertical
direct effect (Van Gend).
Recommendations and opinions cannot have direct effect as they are not binding.
Regulations have direct applicability. They also have DE if they satisfy the VGL criteria (clear, precise
and unconditional), both vertically (Leonesio v Italian Minister of Agriculture) and horizontally (Antonio
Munoz v Frumar Ltd).
Directives are different since their implementation is left to the MS. Article 288: Directives are not
directly applicable automatically. They can also have direct effect, but it can only be vertical (Van Duyn)
and not horizontal (Dori; Marshall v Southampton AHA)
Conditions for Direct Effect of Directives:
o Clear, precise and unconditional (Van Gend; Van Duyn)
o The time limit must have passed (Ratti) It must have been incorrectly implemented (Pubblico
Ministero v Ratti) and this may happen in three different scenarios. The directive:
A) has not been implemented at all (eg the time limit has passed Ratti)
B) has been implemented partially, or incorrectly; or
, C) has been correctly implemented, but it has been incorrectly applied by national
authorities such that it fails to achieve.
o The implementation date must have passed (Ratti); and
o The action must be against the state, or an emanation of the state (Marshall v Southampton
AHA; Doughty v Rolls Royce plc).
What is an emanation of the state?
o Foster v British Gas the ECJ provided two tests to determine whether a body is an emanation of
the state.
o Tripartite Test:
1. The body provides a public service;
2. The service is under control of the state; (direct state control is not needed: Griffin)
3. For the purpose of providing the service the body has special powers beyond those
which results from normal rules applicable between individuals.
o Farrell v Whitty: test requires the consideration of the Foster principles alternatively but not
cumulatively. Suggests that a body will be an emanation of the state if:
The state has delegated to it a public interest task, and
It satisfies either the control or special powers condition.
o Griffin v South-West Water, privatised water company was held to be an emanation of the
state.
Indirect Effect:
Indirect effect is relevant where a directive does not have direct effect. A directive’s provisions can be
used to interpret national legislation as far as possible in a way that is in conformity with the directive
itself (Marleasing).
Under indirect effect, EU law is not applied directly to the case but by means of interpretation of
domestic law in accordance with EU law.
The principle of indirect effect was first established in Von Colson.
Specific conditions must be met before indirect effect can be applied:
o The implementation date of the directive must have been passed;
o Indirect effect can apply both vertically and horizontally (Von Colson)
o All national legislation can be interpreted regardless of whether it was passed before or after
the directive under discussion (Marleasing); and
o Interpretation of national legislation should go as far as possible to achieve compatibility with
EU law and that indirect effect should be available in as many situations as possible (Marleasing;
Pickstone v Freemans plc) provided:
It does not lead to making an interpretation that imposes criminal liability (Luciano
Arcaro); and
It does not distort the meaning of the domestic legislation (Wagner Miret; Webb v
EMO).
Lister; Pickstone: where necessary, indirect effect could be given to EU law by
‘implying the words necessary to achieve that result’
Marleasing: it is required to interpret its national law in the light of the wording
and purpose of that directive.
o Indirect effect will not be possible if there is no legislation to interpret (Francovich).
o British courts took a wide purposive approach to harmonising UK and EU law (Lister v Forth).
National legislation may have words read into it by the court to give effect to the intention of
the law and the UK’s obligations under a Directive (Pickstone v Freemans) however, this cannot
go as far as to totally distort the meaning of the legislation (Duke v GEC Reliance).
, State Liability:
Refers to the principles according to which individuals can recover compensation from a MS when they
have suffered a loss caused by the MS’s failure to fulfil its obligations under EU Law ( Francovich &
Bonifaci v Italian Republic).
The conditions of State Liability were first established in Francovich and later modified in Brasserie du
Pecheur; Factortame (No 3).
In an exam: when dealing with non-implantation of a directive, you need to list the three Francovich
conditions, followed by the three conditions from Factortame, and then bring in the decision in
Dillenkofer in which the ECJ confirmed that non-implementation of a directive would automatically be
a sufficiently serious breach.
However, if dealing with poor implementation: need to mention Francovich but this criteria doesn’t
address poor implementation – instead, apply the Factortame criteria: confer rights, breach is
sufficiently serious and causal link.
Francovich: (breach was a total lack of implementation)
o The directive should entail the grants of rights to individuals;
o It should be possible to identify the content of those rights; and
o There must be a causal link between the states’ breach and the loss suffered.
Brasserire du Pecheur; Factortame (No.3):
o The directive was intended to confer rights on an individual and the breach infringes on this;
o There must be a direct causal link between the breach and the damage;
o And there must be a sufficiently serious breach ie the state must have manifestly and gravely
disregarded the limits of its discretion (Brasserie). Several factors can be taken into
consideration:
The discretion available to the MS;
The clarity and the precision of the rule breached;
No reaosnable excuse for the mistake (ex parte BT).
Whether the MS committed the breach intentionally, or the incorrect implementation
was excusable;
Any responsibility that EU institutions may have had in providing, or not, any guidance to
MSs, be it case-law or implementation guidance to MS;
How other Mss may have dealt with the same subject matter.
o Dillenkofer established that a failure to implement a directive is automatically a sufficiently
serious breach.
Article 267 References:
Is it a court or tribunal?
o The body making an art.267 TFEU reference must be a court or tribunal. Dorsch Consult criteria:
Is the body established by law?
Is it permanent?
Is its jurisdiction compulsory?
Is its procedure inter partes ie hearings where all parties can be heard and are present?
Does it apply rules of law?
Is it independent ie free from external bias?
o Not all of these factors need to be satisfied (Broekmeulen)
Broekmeulen: The Appeals Committee for the Dutch medical profession was considered
a tribunal whereas in Nordsee, where a private arbitrator used to settle contractual
disputes was not a court or tribunal within the meaning of art.267 TFEU.
Is a reference to the ECJ necessary?
o Due to policy reasons, a reference is necessary for the outcome of the case at hand. According
to CILFIT, a reference will not be necessary where:
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