GDL EU Law Exam Revision Notes
Comprehensive easy to follow revision notes that summarise the essential cases, treaty articles and persuasive authorities for each topic.
Topics covered: EU Legislative Procedure, Direct Effect of Directives, Indirect and Incidental Effect of Directives, State Liabil...
- The Principle of Conferral/Limited Competence
o Article 3 TFEU – lists areas in which EU exercises exclusive competence
The union has exclusive competence in SOME areas
o Article 4 TFEU – lists areas in which EU exercises shares competence.
The union has shared competence with member states in MOST
areas.
- Principle of Subsidiarity
o EU should only legislate in an area if it can do so more efficiently that MS.
o Article 5.3 TEU
- Principle of Proportionality – Article 5.4 TEU
o If union acts disproportionally, that is subject to judicial review.
- Procedure - Article 6 TFEU
o Every time the EU commission is about to issue legislation, the union has to
consult local parliaments, who have the power to send their opinion
Yellow Card - if a third objects, commission has to review but does
not have to change his mind. (e.g. Labour Law 2004)
Orange Card – If the majority (55%) of the members of the Council or
a majority in European Parliament, the legislative proposal may be
withdrawn as not compatible with principle of subsidiarity
- Article 288 – sets out the types of EU Legislation.
o Regulations
o Directives
o Decisions
- Legislative Procedure
o Ordinary Legislative Procedure (Article?) – Qualified Majority
o Council, Parliament and Commission are all involved in this procedure
1- Commission Proposes the agenda
2- 1st opportunity -parliament and council consider proposal. Each body represents
different interests, so they tend to disagree and propose amendments that have
to be agreed on by the other bodies.
3- 2nd opportunity, the other bodies have to agree on the amendments. Parliament
can agree or disagree. Could agree and propose further amendments, which
have to be agreed on by the council.
4- 3rd opportunity (the conciliation). If an agreement hasn’t been reached yet.
Bodies repeat the same procedure (conciliation committee) if they agree, then
they adopt legislation, if not then the whole thing is dismissed.
- Why this procedure?
- This process has been adopted because member states did not want one body to
have all the power to adopt legislation. They wanted to have a say (council).
- Parliament: has veto power, it may kill the whole process in the second reading. -
Qualifed majority.
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, - Commission has power to make life dificult by rejecting amendments by other
institutions and has the right to withdraw its proposal.
- What we learn from this procedure that a single body cannot adopt legislation on its
own. (it encourages cooperation)
- Qualified Majority Voting – Article 16 TEU/ 288 TFEU
o 55% in Council, which represent 65% of the EU’s population.
Direct Effect of Directives
The legal nature of directives
- 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’.
o First element of this provision: directives are binding
o Second: they are binding as to the result to be achieved. A Directive imposes on
member states a result to be achieved. An obligation of result.
o Third element: member states enjoy discretion on how to implement the directive.
- Because directives impose an obligation of result, things will probably go wrong.
- States may decide to implement the directive. However, not within the time limit, not
completely or not correctly.
- Adenler [2006] - Elastic Quality - during the prescribed period for transportation, member
states should not create laws or apply measures that would conflict with the result of the
directive.
The direct effect of directives
- Van Duyn v. Home Office – EU citizens can invoke directives before domestic
courts.
- The court had 3 argument for this decision
1) Effectiveness: directives will not be effective if citizens did not have
the right to invoke them in domestic courts.
2) Article 288 does not expressly rule out direct effect for directives.
3) Provision of the treaty does not rule out directives, that provisions
tells is that domestic courts may ask any question about EU law.
Individuals should be able to invoke any measure.
- Pubblico Ministero v. Tullio Ratti –
o The Estoppel argument: 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.
o If citizens did not have the right to invoke directives, then member states would
be able to take away rights from the citizens by not correctly implementing
directives. You cannot rely on your failure to prevent citizens from their rights.
Vertical vs Horizontal Direct Effect
- Vertical actions: an individual against the state. (vertical direct effect)
- Horizontal direct effect: disputes against individuals. NOPE
- Marshall v Southampton [1986] - a directive may not of itself impose obligations on an
individual and that a provision of a directive may not be relied upon as such against such
a person
- Directives impose duties on states (288) duty to implement the directive. Directives
are not to impose duties on individuals. Thus, directives are not to be invoked
against individuals. Individuals should rely on domestic law. If domestic law does not
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, apply it properly, then the directive cannot help an individual in a horizontal case.
Principle of Conferral. Union will be acting beyond its powers if it imposed
obligations on individuals.
- Faccini Dori - Individuals can rely on regulations in court because provisions tell us that
regulations can impose a duty on both the state and on individuals.
o However, directives do not. If the Union wanted to impose a duty on
individuals, it would have adopted a regulation.
Problems arising from Marshall
1) Discrimination: those employed by the government can invoke directives, but
individuals employed by private companies cannot
2) Effectiveness: more effective against the state. Difficult to function without horizontal
effect.
3) What is the state?
4 different methods to address those problems.
1) The definition of the ‘State’ or the ‘emanation of the State’: A wide definition of
“the state” for purposes of vertical direct effect.
- A. Foster v. British Gas plc [1990]
- The label of the body is irrelevant. Focused on what the body does. If a body was
granted power by the state, and exercises powers that are NOT normally exercised
by other bodies or individuals, then an individual can bring a case against it.
- The wider the definition of what is the state, the wider an individual can invoke a
directive. This broad definition helps.
2) The Principle of Indirect Effect
- Von Colson [1984];
- National courts are required to interpret their national law in the light of the
wording and the purpose of the directive in order to achieve the result referred to in
the third paragraph of Article 4 TEU.
o This is not a right granted to domestic judges. It is a duty. Art 4 para 3 TEU –
principle of cooperation.
- Affirmed in Marleasing - established the indirect effect of directives for horizontal
cases, irrespective if the act predates the union measure.
o What if the domestic law cannot be interpreted in light of EU law?
o ‘as far as possible’ – there is a limit. They are not required to implement a
directive if to do so would be against the express meaning of domestic law.
3) ‘Incidental’ effect of directives
- Unilever Italia; CIA Security
o Directives can have limited horizontal effect when they do not impose
directly impose legal obligations on individuals.
o Can be invoked horizontally if it does not directly impose obligations on the
private defendant. It would resolve an issue of conflict between two
individuals by clarifying the domestic law.
Unilever - E.g. two parties in a contract of sale of oil. Claimant
labelled oil in compliance with a directive, but not with Italian
Law. Buyer refused to buy. Case here: application of directive
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, would impose contractual obligations on the defendant, not
directly impose obligations. So, by clarifying the law, the
directive indirectly imposed contractual obligations on the
defendant. However, a directive cannot oblige a party do
something that it otherwise would not do.
A-G Jacobs: this is penalising individuals for the state’s failure.
CJEU ignored his comment.
o This is referred to as ‘exclusionary’ impact – excluding inconsistent national
law – flows from the doctrine of Supremacy (Costa)
- Problems with Incidental Effect
a) Difficult to distinguish between cases of ‘exclusion’ impact and
‘substitution’ impact.
b) A-G Jacobs in Unilever – could penalise a private firm for an unknown
breach of obligation by the state
4) Directives interaction with general principles of EU Law
- Werner Mangold [2005]– where a general principle of EU Law (discrimination in this
instance), is found to be in a directive mentioned in a directive, it is to be applied
against individuals. What is being applied here is not the directive, but the principle
is what applied.
- Kükükdeveci v Swedex [2009] - affirmed the Mangold rule. If a general EU principle
is violated, domestic courts must set aside domestic law and give effect to the
former.
5) State Liability Action for not incorrectly Directive (Francovich)
State Liability
The principle of Procedural Autonomy
- Rewe - Applying the principle of cooperation laid down in Article 4 TEU? In the
absence of EU law governing the matter, it is for the member states to determine
the procedures for claims and remedies under EU Law, to ensure legal protection
which citizens derive from the direct effect of EU provisions (Unibet)
- No duty to create new remedies
o Rewe – and Unibet
Two Requirements for this principle (Unibet)(Rewe)
1) The principle of Equivalence (or non-discrimination)
o rights deriving from EU law should be subject to the same procedures as
rights deriving from national law (Rewe)
2) The principle of Effectiveness (or practical possibility):
- The remedy/procedure that exists for EU law claims should not make it
impossible or excessively difficult in practice for the claim to be made. For
example: if domestic law states that EU law claims should be made within 24
hours. This makes it difficult to make a claim.
o Case C-213/89. Factortame [1990] – this also applies to a national law
rule that prevents a court from granting interim relief.
- Case C-432/05 Unibet [2007]– sums all of this up
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, o If you think the terms are unreasonable – too little time, too little
compensation available etc, you may ask the domestic judge to set them
aside and apply EU law instead.
The notion of liability for illegal acts
- The treaties do not say much about the principle of state liability for the violation
of EU law.
- Article 340(2) TFEU - The union might be liable in damages for violating EU law.
The conditions for this are common to the general principles of Member States.
The introduction of the principle of State liability
- Francovich and Bonifaci
o the Italian government’s failure in implementing a directive gave rise to
state liability
o ‘a state must be liable for loss and damage caused to individuals as a result
of breaches of Community law for which the state can be held responsible is
inherent in the system of the Treaty’.
- Paragraph 40 - Conditions to impose a remedy for state liability:
1) The Eu measures violated should confer a right on the individual
2) The right should be clearly identifiable on the basis of the treaty
3) There must be a direct causal link between the violations and the loss
suffered by the individual
- Unanswered questions
o Type of violation – what is the scope of the principle of sustained liability?
What if they had transposed the directive incorrectly?
Correctly but not entirely? Regulation? Decision?
o What do we mean by the state? Executive? Domestic court?
- Joined Cases C-46/93 and 48/93 Brasserie du Pecheur and Factortame III:
o Factortame III
- Same factual basis as I and II – Spanish fishermen invoked article 52 EC to challenge
the UK’s conditions for registration as a British vessel. They sought damages for
losses caused by the UK’s breach of the Treaty.
o Brasserie de Pecheur
- Beer purity. The failure of German legislature to amend the beer purity law is a
violation of EU law. Breweries sought damages.
Altered the 3 conditions:
1- The rule infringed must be intended to confer rights on individuals
2- The breach must be sufficiently serious
3- There must be a causal link between the breach and the damage suffered.
Defined the scope of a ‘serious breach’
- Was there a discretion?
o The breach will be considered a serious violation if the state manifestly
and gravely exceeded the limits of the discretion.
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