WEEK 1
A New Legal Order & Direct effect
Van Gend & Loos C-26/62 (1963)
Facts: The plaintiff in the main action considered that the alteration of the customs tariff by the Brussels Protocol
contravened Article 12 of the EEC Treaty, and that the decision made by the by the customs authorities should be
annulled in view of the provisions of the EEC treaty.
Question of law: Whether Article 12 of the EEC Treaty has direct application. In other words, weather nationals of
member states can, on the basis of the Article in question lay claim to individual rights which the courts must protect?
Decision: Article 12 must be interpreted as producing direct effects and creating individual rights which national courts
must protect
Reasoning:
Important paragraph: The community constitutes a new legal order of international law for the benefit of which the
states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only of
member states but also their nationals.
Looks at the objective, general scheme and wording of the treaty
Important paragraph: The wording of Article 12 contains a clear and unconditional prohibition which is not a positive
but a negative obligation
Autonomy: vs MS legal order (extra)
● Autonomous EU legal order vs MS legal order
● EU law itself determines what effect it has in the MS legal orders, Not up to MS/their courts
● Basis for autonomy: principle of conferral/attribution
一 MS have given certain powers to the EU and limited their sovereignty
Autonomy: vs international legal orders (extra)
● Different from how MS decides how int law applies via dualism/monism incorporation
一 EU law doesn’t care what system MS has, because EU law itself decides how it applies.
At the heart of this case
In Van Gend & Loos it is established that EU law constitutes a new legal order, an autonomous legal order in which EU law
decides on its own application. Therefore, it is confirmed that EU law will have direct effect creating individual rights which
the national courts must protect. It also established the criteria of clear and unconditional which is to be applied when
determining if a provision will have direct effect.
Costa v ENEL C-6/64 (1964)
Lex posterior rule is disapplied and EU law is supreme
Facts: The Italian Republic nationalised the production and distribution of electric energy and created the ENEL. Costa
claimed that the nationalisation law was contrary to a number of provisions of EEC law
Question of law: Is the national court obliged to apply EEC treaty law?
Decision: Only the Italian constitutional court could decide if nationalisation violated EEC law
Reasoning:
New legal order:
1
, -The EEC Treaty has created its own legal system which, on entry into force of the treaty became an integral part
of the legal system of the MSs and which their courts are bound to apply.
-The MSs have limited their sovereign rights, albeit within limited fields and created a body of laws that binds
both nationals and themselves
The principle of supremacy
-The treaty carries with it a permanent limitation of their sovereign rights, against which subsequent unilateral
incompatible with the concept of the community cannot prevail act
The Principle of Supremacy in primary EU law
The treaty carries with it a permanent limitation of sovereign rights, against which a subsequent unilateral act incompatible
with the treaty cannot prevail. This case specifically links the principle of precedence to primary EU law which comes from
the treaty.
Simmenthal C-106/77 (1977)
Automatically disapplying subsequent legislation that conflicts with community law
Facts: Simmenthal imported beef for human consumption from France and they had to pay its respective fee importation
for public health inspection. About this matter, it was Simmenthal’s opinion that this inspection clearly violated the
fundamental principles of Common Market (in this case, free movement of goods). So, Simmenthal brought an action to
court with the intention to be repaid for the illegal fee. The Court, accepted Simmenthal arguments and condemned
Administrazione delle Finanze pello Stato to repay the company. Not satisfied with the decision, Admnistrazione
appealed against the order to repay arguing a conflict between Community law and National law.
Question of law: What consequences flow from the direct applicability of a provision of community law in the event of
incompatibility with a subsequent legislative provision of a MS?
Decision: All conflicting provisions of national law must be set aside
Reasoning:
Important paragraph (para 14):
Direct applicability means that rules of community law must be fully and uniformly applied in all the member
states from their date of entry into force and so long as they continue in force
Important paragraph (para 17):
In accordance with the principle of precedence of community law, the relationship between provisions of the
treaty and directly applicable measures of the institutions on the one hand and the national law of the MS on the
other is such that those provisions and measures not only by their entry into force render automatically
inapplicable any conflicting provisions of current national law but-in so far as they are an integral part of, and
take precedence in, the legal order applicable in the territory of each of the MSs-also preclude the valid adoption
of new national legislative measures to the extent to which they would be incompatible with community
provisions
Important paragraph (para 21)
Every national court must set aside any national provisions that conflict with community law whether prior or
subsequent to the community rule.
Important paragraph (para 24)
It is not necessary for the court to request or await the prior setting aside of such a provision by legislative (repeal)
or other constitutional means (constitutional court declaring it unconstitutional)
2
, Measures of institutions & subsequent national legislationeffectiveness of community law
Measures of institutions: Simmenthal specifically links the principle of precedence to the measures of institutions as
alongside the treaty provisions
Subsequent national legislation: Simmenthal is focused on the invalidation of subsequent national legislation that conflicts
with community law, it should be set aside in favour of community law by the legislator automatically, Simmenthal award the
court the power to do this.
Factortame C-213/89 (1989)
Disapplying national act of parliament that impairs effectiveness of EU law
Facts: Registration of British fishing vessels was radically altered by part II of the Merchant Shipping Act 1988, as the
plaintiffs vessels failed to satisfy the conditions for registration they sought to challenge the compatibility of part II of the
1988 Act with community law. They applied for the granting of interim relief until such time as a final judgement was
given on their application for judicial review. The House of Lords held that the granting of such interim relief was
precluded by the old common law rule that an interim junction may not be granted against the crown which issued the Act
of Parliament.
Question of law: Should a national court, where it has a case before it concerning community law, and is only precluded
from grating interim relief due to a rule of national law, disapply that rule?
Decision: If the sole obstacle that precludes the granting of interim relief is a rule of national law, it must be set aside
Reasoning:
The full effectiveness of community law would be impaired if a rule of national law could prevent a court seized
in a dispute governed by community law from granting interim relief
Parliamentary sovereignty & Factortameeffectiveness of community law
The effectiveness of community law is supreme over national Westminster law, even in the face of
parliamentary sovereignty the supremacy of EU law is upheld
Opinion 2/13 on the EUs accession to the ECHR
Important paragraph (para 84):
The agreement made between the ECHR and EU mist not have the effect of binding the EU and its institutions, in
the exercise of their internal powers, to a particular interpretation of the rules of EU law
Defrenne v Sabena C-43/75 (1975)
Horizontal direct effect of treaty provisions
Facts: The applicant, an air stewardess, asked for a preliminary ruling by the CJEU on article 119 EEC which ensures
equal pay for men and women
Question of law: Does article 119 EEC have horizontal direct effect, and therefore, independently of any national
provision, entitle workers to institute proceedings before national court in order to ensure its observance
Decision: The principle of equal pay contained in article 119 EEC may be relied upon before the national courts regarding
its application for service in both private and public establishments
Reasoning:
Important paragraph (para 28):
3
, The use of the word principle in the article is used to specifically indicate the fundamental nature of certain
provisions
Important paragraph (para 31):
The fact that certain provisions of the treaty are formally addressed to the MS does not prevent rights from being
conferred at the same time on any individual who has an interest in the rights laid down
Important paragraph (para 37):
The reference to member states in Article 119EEC, cannot be interpreted as excluding the intervention of the
courts in the direct application of the treaty
Important paragraph (para 39):
Since Article 119EEC is mandatory in nature, the prohibition on discrimination between men and women applies
not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid
labour collectively, as well as to contracts between individuals
Defrenne & Horizontal direct effect of treaty provisions
It was established in this case that a treaty provision aimed at a MS and contained the word ‘principle’ can still be relied
on to produce direct effect for citizens. These affects are not only against a public authority, but also a private one eg
treaty provisions provide horizontal direct effect
Leonesio v Italian Ministry of Agriculture C-93/71 (1971)
Facts: A community regulation designed to encourage reduced dairy production stated a cash premium would be made
available to farmers that slaughtered their cows and did not produce milk for a further 5 years. Leonesio fulfilled the
requirements but was refused payment because the Italian constitution required legislation to authorise government
expenditure.
Question of law: Should the national law be disapplied in favour of the direct effect of the regulation?
Decision: Yes
Reasoning:
Important paragraph (para 22):
Community regulations become part of the legal system applicable within the national territory, which must
permit the direct effect to operate in such a way that reliance by individuals must not be frustrated by domestic
provisions or practises
Regulations are stated in Article 288TFEU to be “of general application”. If they are also clear and unconditional,
they may be directly effective since Leonesio v Italian Ministry of Agriculture
Direct effects of secondary EU lawRegulations
Munoz v Frumar C-253/00 (2001)
Question of law: Is the compliance with two regulations on quality standards applicable to fruits and vegetables capable
of being enforced by means of civil proceedings instituted by a trader against a competitor?
Decision: Yes
Reasoning:
A community provision can be relied on in relations between individuals in which the obligation set out is clear
and unconditional
The possibility of bringing such proceedings strengthens the practical working of the community rules on quality
standards
4
, It helps to discourage practises that distort competition
Horizontal direct effect of regulations
Van Duyn v Home Office C-41/74 (1974)
Facts: Miss Van Duyn is a Dutch national who wants to work for the Church of Scientology in the Uk. She is denied a
work permit to do so as the UK deems the organization hazardous to public mental health. Miss Van Duyn alleges a
breach of the Treaty of Rome and a directive, both of which ensure the free movement of workers
Question(s) of law:
(1) Will Article 48 EEC produce direct effects?
(2) Will the council Directive confer rights on individuals capable of being enforced in national courts?
Decision:
(1) Yes
(2) Yes
Reasoning:
(1)
This is a direct obligation which does not require the implementation of any further legislation by community
institutes or MSno discretion
There are limitations which can be applied but these are subject to judicial control and do not affect the right
of an individual to invoke the norm in national courts
(2)
It would be incompatible with the binding nature of directives to exclude in its entirety the possibility that the
obligation may be imposed in national courts
The useful effects of such an act would be weakened if individuals were prevented from relying on it before their
national courts, and if the courts therefore did not have to take it into account ad part of community law
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 MSs and individuals
(a) The provision lays down an obligation which is not subject to any exception or condition which by its very
nature requires no intervention by EU institutions of MS.
(b) Legal certainty for the persons concerned requires that they should be able to rely on this obligation even
though it has been laid down in a legislative act which has no automatic direct effects in its entirety.
● If the meaning and exact scope of the provision raise questions ten these can be resolved by court when they refer
for a preliminary ruling under Article 267TFEU
Direct effect of directives is possible
Marshall v Southampton C-152/84 (1984)
Question of law: Can the Directive be relied upon by an individual before national courts and tribunals as against the
state?
Decision: Yes
Reasoning:
Important paragraph (para 46):
The subject matter of the directive must be;
(1) Sufficiently clear/precise
5
, (2) Unconditional
Important paragraph (para 46/47)
The directive may only be relied upon by an individual as against the state where the state fails to implement the
Directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.
A member state which has not adopted the implementing measures required by the directive within the prescribed
period may not plead, as against individuals, its own failure to perform the obligations which the directive
entailsestoppel argument
Question of law 2: Could this directive be relied upon as against a private actor/individual?
Decision: No
Reasoning:
Important paragraph (para 48)
The binding nature of the directive exists only in relation to ‘each MS to which it is addressed’. It follows that 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.
At the heart of this case
This case established that the transposition deadline must have passed for a directive to be vertically directly affective. In
addition, it establishes that there is no horizontal direct effect for a directive.
Values and enforcement
Commission v Italy C-39/72 (1972)
Action bought by commission under Article 258TFEU (failure to comply with EU law)
Facts: Italy has not taken the measures necessary to ensure the effective application within the prescription period of twos
systems, one for premiums for slaughtering and the other for premiums for non-marketing of dairy products.
Important paragraph (para 11):
In both the delay of performance of an obligation (vis a vis premiums for slaughtering) and a definitive refusal
(vis a vis non-marketing of dairy products) a preliminary ruling under 258TFEU may be of substantive interest as
establishing the basis of responsibility that a MS can incur as a result of its default , as regards other MSs, the
community or private parties.
Question of law: Has the Italian Republic failed to fulfil its obligations under the treaty by failing to give effect to an EU
Regulation?
Decision: Yes
Reasoning:
First failure to fulfil an obligation: Delay in performing an obligation
Important paragraph (para 14):
Regulations have precise time limits; the measures could only obtain their objectives completely if they are
carried out simultaneously in all the MSs at the time determined
Second failure to fulfil an obligation: Implementing method contrary to the treaty
Important paragraph (para 17):
All implementation methods are contrary to the treaty which would have the result of creating an obstacle to the
direct effect of community Regulations and of jeopardising their simultaneous and uniform application in the
whole of the community.
Third failure to fulfil an obligation: Refusal to put measure into effect and perform obligation
6
, Important paragraph (para 20):
The regulation is binding in its entirety for MSs. Therefore, it cannot be accepted that a MS should apply in an
incomplete or selective manner provisions of a Community Regulation so as to render abortive certain aspects of
community legislation which it has opposed or which it considers contrary to its national interests.
Important paragraph (para 22:
Practical difficulties which appear whilst putting community measures into effect cannot permit a MS to
unilaterally opt out of fulfilling its obligations
VERY IMPORTANT paragraph (para 24):
For a state unilaterally to break, according to its own conception of national interest, the equilibrium between
advantages and obligations flowing from its adherence to the community brings into question the equality of MS
before community law and creates discrimination at the expense of their nationals and above all of the nationals
of the state which places itself outside community rules.
At the heart of this case
Vis a vis a regulation, delay in performing an obligation imposed, using an implementing method contrary to the treaty
and of course the refusal to put a measure into effect are all forms of failure to fulfil obligations imposed on a MS by the
EU.
France v United Kingdom C-141/78 (1978)
Where a Member State considers that another Member State is in breach of EC law it may bring the matter before
the ECJ if it has put the case before the Commission which has not acted within three months of the reasoned
opinion: Art.259TFEU
France v UK (Re Fishing Net Mesh Sizes) (Case 141/78) France complained to the Commission about United Kingdom
measures on fishing net mesh sizes. When the Commission did not proceed in the ECJ under Art.226 (ex 169) France
brought the matter before the ECJ under Art.259TFEU.
Held: (ECJ) The United Kingdom was in breach of EC law on fishing net mesh sizes.
Commentary
Member States prefer to leave the resolution of their disputes with other states in the hands of the Commission, thus
avoiding direct confrontation. Article 259TFEU provides a mechanism for an aggrieved state to pursue its action directly
against another state when the Commission has not acted on a reasoned opinion.
Although proceedings have been commenced in a few other cases under Art.259, France v UK is the only one resulting in
an order against another state.
Star fruit C-247/87 (1987)
Facts: Case regarding the scope of Article 258TFEU
Question of law: Does the fact that the commission has not commenced proceedings against the French Republic under
Article 258TFEU to establish its breach of obligations mean that the commission has infringed the treaty by failing to act
within the meaning of Article 265TFEU?
Decision: No
Reasoning:
Important paragraph (para 11)
It is clear from Article 258TFEU that the commission is not bound to commence the proceedings provided for in
that provision but instead has a discretion which means that individuals do not have the right to require that the
institution adopt a specific position
Important paragraph (para 12)
7
, If a state does not comply with the reasoned opinion of the commission within the given period, the commission
has a right but not a duty to apply to the CJEU for a proclamation of an alleged breach of obligations
Infringement procedure
Commission v France C-265/95
Looking at failure to fulfil obligations under the treaty text
Concerns articles:
34TFEU: Quantitative restrictions on all imports and all measures having equivalent effect shall be prohibited between
MSs
Article 4(3): The MS shall take any appropriate measures, general or particular, to ensure fulfilment of the obligations
arising from the treaties or resulting from the acts of the institutions of the union
Facts: The commission initiates a proceeding under Article 258TFEU regarding the passivity of the French authorities in
face of violent acts committed by private individuals and by protest movements of French farmers directed against
agricultural products from other MSs, the commission delivers a reasoned opinion and calls upon the frech authorities to
adopt the measures necessary in order to comply with that opinion within a period if one month from that date thereof
Question of law: Did the French government comply with its obligations under Article 34TFEU in conjunction with
Article 4(3)TEU by adopting adequate and appropriate measures to deal with actions by private individuals which create
obstacles to the free movement of certain agricultural products?
Decision: The French government has failed to fulfil its obligations
Reasoning:
Important paragraph (para 52):
The measures adopted by the French government were manifestly inadequate to ensure freedom of intra-
community trade in agricultural products on its territory by preventing and effectively dissuading the perpetrators
of the offense in question from committing and repeating them
Important paragraph (para 55)
Justified?
Apprehension of internal difficulties cannot justify a failure by a MS to apply community law correctly
Important paragraph (para 56):
It is for the MS concerned, unless it can show that action on its part would have consequences for public order
with which it could not cope by using the means at its disposal to adopt all appropriate measures to guarantee the
full scope and effect of community law so as to ensure its proper implementation in the interests of all economic
operators
Important paragraph (para 60):
Even though compensation can provide reparation for at least part of the loss or damage sustained by economic
operators concerned, the provision of such compensation does not mean that the MS has fulfilled its obligations
Important paragraph (para 62):
It is Settled case law that economic grounds can never serve as a justification for barriers prohibited by Article 34
TFEU
Important paragraph (para 63):
Also, a MS may not unilaterally adopt protective measures or conduct itself in such a way as to respond to the
breach by another MS of a rule of community law
Commission v Ireland (Irish waste) C-494/01
Looking at failure to fulfil secondary obligations under a Directive
Para 169: It is not possible to say that just because a situation is not in conformity with the secondary legislation
and treaty that the MS has failed to fulfil their obligations. However, if the situation persists without action being
8
, taken by the competent authorities then it may indicate that the MS has exceeded the discretion that has been
conferred on them by the provision.
Para 175: There has been a lengthy period of time and significant deterioration and no necessary measures taken
Commission v France C-304/02
Looking at the penalty payment procedure under the infringement procedure
Para 80: Aims to induce defaulting states to comply with the judgement
Para 81: A penalty payment is usually imposed to bring the action to an end immediately, a lump sum is based on an
assessment of the effects on private and public interest, a breach has usually persisted for a long time since the
judgement that established it
Para 82: There is not reason why a MS could have both imposed on it
Commission v Hungary C-287/12
Facts: This case is very specific about the failure to fulfil obligations under the treaty by Hungary because they created an
obligatory retirement age for judges of 62 years old lowered from the precious 70; it was said this constituted age-related
discrimination based on the equal treatment directive
Paras 54/55:
This does give rise to a difference in treatment based directly on age but it could be justified if it pursues a
legitimate aim that is both necessary and proportionate
Para 66:
In order to see if It goes beyond what is necessary you need to weigh up the costs/benefits
Spain v UK C-145/04
All about the procedure under 259TFEU where a MS considers another MS to have failed to fulfil its obligations
can come before the CJEU
9
, WEEK 2
Competences
United Kingdom v Council C-68/86 (1988)
Facts: The case is about choosing the correct legal basis for a Council Directive prohibiting the use in livestock farming
of certain substances having a hormonal action. We look at two claims, the first is that there is insufficient legal basis and
the second is that there has been a violation of the principle of legitimate expectations.
Question of law 1: Because the council has commonly practised basing measures in the field of agricultural policy on
joint legal basis of Article 43 and 100 was it necessary for it to do so in this case?
Question of law 2: Because the council has commonly adopted directives in the field of agricultural policy on a
unanimous vote, was the majoritarian voting taken in the adoption of this directive against legitimate expectations?
Decision 1: No
Decision 2: No
Reasoning 1:
Part A:
(Paras 7-14) The council had the power to adopt the directive on the legal basis of Article 43 alone, due to the fact that
within the title of agricultural policy there are economic considerations list
(Paras 15-16) Describe the situation of the precedence of specific provisions over general provisions in the case of
agricultural policy
Part B:
(Para 17-22) Establishing that the aim and content of the directive did in fact fall within the scope of Article 43
Important paragraph(s): The choice of legal basis for a measure must be based on objective factors that are
amendable to judicial review. A mere practise on behalf of the council cannot derogate from the rules laid down
in the treaty. Basically, the fact that there is a practise on the council’s behalf of adopting on agricultural policy on
the basis of both article 43 and 100 does not create a precedence (paras 23/24).
Reasoning 2:
(Para 37/38) The rules regarding the manner in which the community institutions arrive at their decisions are laid down in
the treaty and are therefore not at the disposal of the MS or the institutions themselves
At the heart of this case
This case introduces the rule that ‘the choice of legal basis for a measure must be based on objective factors which
are amendable to judicial review.’ These objective factors would be aim and content. It goes on to recognise that
both the choice of legal basis and the choice of decision-making process (majority rather than unanimity) are
governed by the treaties and not by the practises on behalf of the institutions or MS.
Link to ‘competences’The competences have been awarded by the treaty, the choice of legal basis and decision-making
procedure to adopt EU legislation are defined in the treaties, the EU institutions cannot change this through their
common practises.
Parliament v Council (Chernobyl) C-70/88 (1990)
Facts: This case is all about the parliament believing its prerogatives have been breached. There is a Council Regulation
for the procedure for determining the maximum permitted levels of radioactive contamination of foodstuff and of
feedingstuffs following a nuclear accident or any other case of radiological emergency. The parliament believes that it
10
