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Y2 European Public Law
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Providing a well-written summary with diagrams and tables of lecture and workshop notes of Year 2, Quarter 5. The notes include all required cases.
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International Bachelor of LAW Program 2019 – 2020EU Public Law Course Notes by 18024580 Page 1 of 22
Course Notes
Lecture 1, 2 & 3: Principle of Direct Effect and State Liability
▪ Direct Effect
This principle entails the capacity of a provision of EU law to be invoked before a national court. It is
defined in narrow sense to confer rights on individuals. The doctrine of ‘direct effect’ applies to all
binding EU law legislation.
Criteria
EU Law provisions of binding nature must be sufficiently clear, precise and unconditionali to be
considered justiciable to be invoked and relied on by individuals before national courts.
Private enforcement
Individuals (and private entities) can invoke a provision of EU law before a national court to challenge a
national action that is incompatible with EU law.
Horizontal direct effect: A provision can be enforced directly between individuals or private parties.
Vertical direct effect: A provision can be enforced directly by individuals against the State.
* A Treaty provision can be invoked by an individual or a private party against the Member State (MS) when it’s
unclear, negative or unconditional, containing no reservation on the part of the MS, and not dependent on any
national implementing measure.
Public enforcement
Infringement procedures → Arts 258 – 260 TFEU.
▪ Direct effect of directives
Art. 288 TFEU: A directive shall be binding, as the result to be achieved, upon each MS to which it is
addressed, but shall leave to the national authorities the choice of form and methods.
Vertical direct effect (VDE)
A directive can be enforced directly by individuals against the state after the expiration of the time limit
for their implementation.
The CJEU used the effectiveness of EU law and the Estoppel argument (Ratti) to accept VDE. An MS
cannot benefit from its own doing by not or incorrectly implementing a directive, nor can an MS prevent
to give a certain right to an individual by not or incorrectly implementing a directive.
Broad interpretation of ‘vertical’
- All public entities;
- Public authorities and its employees;
- Private entities sometimes regarded as public (emanation of the state)ii.
Horizontal direct effect (HDE)
A directive can be enforced directly between individuals or private parties.
The CJEU can impose obligation on individuals, but not a directive. A directive may not of itself impose
nor is it capable of imposing obligations upon individualsiii, therefore, it is not possible to have HDE of a
directive.
, International Bachelor of LAW Program 2019 – 2020
EU Public Law Course Notes by 18024580 Page 2 of 22
Qualifications to rule that there’s no HDE
1. The Court has interpreted the concept of ‘state’ broadly for the purposes of vertical direct effect.
2. The national courts have the obligation to interpret domestic law in conformity with directives.
3. All organs of the state must refrain from adopting any measure or interpretation to compromise the result
prescribed by the directive, during the period after adoption off a directive but before the time limit for
implementation has expired.
4. A directive can be legally invoked in proceedings between private parties.
5. There must be a general principle of EU law that covers the same ground as a directive can.
6. Where a regulation refers to a directive and makes compliance with the directive conditional on receipt of
benefits under the regulation; this can bind private parties.
TREATIES REGULATIONS DECISIONS DIRECTIVES
VERTICAL V V V Viv
+ time-limit for
implementation
HORIZONTAL Vv V V Xvi
(mainly non- (not when addressed
discrimination provisions) to an MS)
V: provision must be unconditional and sufficiently precise.
▪ Alternative direct effects of directives when there’s no HDE
Indirect effect / consistent interpretation
Concept of indirect effect
This is used in a situation of mis-implementation of an EU legal instrument by an MS. Thus, national
courts are required to interpret their national law in light of the wording and purpose of the directive to
ensure that an individual still gets the right based on that directive.
Basis
Case 14/83 Von Colson and Kamann v Nordhein-Westfallen | interpretation of a directive
[26]: The MS’s obligation arising from the Directive to achieve the result envisaged by the Directive and
their duty under Article 4(3) TEU to take all appropriate measures, whether general or particular, to
ensure the fulfilment of that obligation is binding on all the authorities of MSs including, for matters
within their jurisdiction, the courts. It follows that, in applying the national law and in particular the
provisions of national law specifically introduced in order to implement Directive 76/207, national courts
are required to interpret their national law in the light of the wording and purpose of the Directive […]”
Aim
Case C-91/92 Faccini Dori v. Recreb Sri
[26]: […] when applying national law, whether adopted before or after the directive, the national court
that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose
of the directive so as to achieve the result it has in view and thereby comply with Article 288 TFEU.
* National courts must interpret their national law in such a way that the objectives of the directive are achieved.
Thus, to ensure that the directive is fully effective and to achieve the same result ultimately as via direct effect.
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