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The relationship between EU and national law
Coherence question: presupposes there is some convergence of rationale, and that all these different doctrines serve the same purpose, and so it is logical why they have that sam purpose. What is that justification? On case law, there are two:
1) Effectiveness of EU law 2) Estoppel argument
Marshall prohibition: allows for private parties to be affected by unimplemented directives,
but only incidentally; where the Directive is relied on by a party against the State, or when national law is interpreted in line with an unimplemented Directive.
Article 288 TFEU
To exercise the Union's competences, the institutions shall adopt regulations, directives,
decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
Art 296 TFEU
Where the Treaties do not specify the type of act to be adopted, the institutions shall select it on a case-by-case basis, in compliance with the applicable procedures and with the principle of proportionality.
Legal acts shall state the reasons on which they are based and shall refer to any proposals,
initiatives, recommendations, requests or opinions required by the Treaties.
When considering draft legislative acts, the European Parliament and the Council shall refrain from adopting acts not provided for by the relevant legislative procedure in the area in question. Art 298 TFEU
Only significant bit seems to be legislative acts and regulations and directives will be published in the Official Journal of the European Union.
Art 299 TFEU
Acts of the Council, the Commission or the European Central Bank which impose a pecuniary obligation on persons other than States, shall be enforceable.
Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it is carried out.
The criteria governing direct effect (the rule rather than the exception (Weatherill)).
Van Gend en Loos
A substance charged with a customs duty on being imported from Germany into Holland.
Van Gend en Loos claimed reimbursement for the sum.
Article 30 TFEU- a clear and unconditional provision which is a negative obligation.
'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 member states but also their nationals.'
De Witte: the fact that the treaty article only addressed itself to Member States, did not prevent it from being invoked by individuals, who were intended to benefit from individual rights conferred by Community law. Contrast with the textual interpretation of Article 288only addressed to member states so couldn't be.
A point on dual vigilance: Fines displays that the overwhelming majority of actions against the Community are brought by corporations and that the litigation typically involves licences and other economic interests. Their dominant position in litigation raises questions as to what sort of rights EC law really protects.
Woman wants to move to UK to take up a role at Church of Scientology- based on right to travel between Member States to take up employment, subject to exceptions based on,
inter alia, public policy. UK sought to claim Church of Scientology employment was socially undesirable. The High Court sent two preliminary reference questions:
a) Is right of Art 45 TFEU directly applicable so as to confer rights on individuals enforceable by them in the courts of a member state? Yes, because imposes a precise obligation on MS which doesn't require the adoption of any further measure by Community or by MS, and leaves them with no discretionary power. Exceptions based on public policy is to be controlled judicially, and so is not such to preclude direct effect.
b) Directive governing exceptions on policy grounds- is this directly effective? Yes- lays down obligation not requiring further action by Com or MS. Art 117 (Now 267)
empowers NC to send questions to ECJ concerning validity and interpretation of EU
Acts, and implies right of individuals to invoke acts in NC.
The ECJ ruled in this case that an obligation given by the directive was clear, precise and legally complete: had provided measures taken on public policy grounds had to be based on the personal conduct of the individual.
Craig: reasons for directive direct effect 1) Functional- more effective enforcement of Directives if individuals can rely on them 2) Textual- Article 267 allows preliminary reference procedure, which implies that such acts can be invoked by individuals before national courts.
3) Estoppel: see Ratti
So Directives may be directly effective:-Discretion is not always fatal to the existence of direct effect:
a) the individual can rely on a directive where a Member State has fully exercised its discretion on implementation,
b) where the State has chosen to exercise or not to exercise a particularly discretionary option (SIMAP v Valencia)
c) where a clear and precise obligation can be separated out from other parts of a directive (Braathens Sverige AB)
d) where a clear obligation of result can be identified (Felix Capper)
Controversially, in Kortas, the ECJ ruled that the possibility of a Member State to derogate from a harmonising directive under Article 95(4) EC did not prevent the
Directive from having direct effect, nor preclude an individual from relying directly on its provisions, even where a Member State had sought permission for such a derogation and the Commission had unreasonably failed to respond to its request.
But note: the general principle is that the direct effect of a directive operates from the deadline specified for the implementation of that Directive. However a) Inter-Environment Wallonie held that although states are not obliged to implement a directive before the period for its transposition is passed, they must during that period refrain from adopting any measures liable to seriously compromise the attainment of the result sought by the Directive.
b) While in principle Directive do not apply retroactively to factual situations before the time limit expires, pre-existing law which is capable of being interpreted in conformity with the directive has been held by the Court to fall within its scope AziendaAgro-Zootecnica Franchini Sarl Defrenne v Sabina
Air hostess paid less than her female counterparts- where there is direct discrimination, ART
157 TFEU is directly applicable, and give rise to individual rights before NC. This is where same establishment or service pays differently by gender etc, or where discrimination is laid down in legislative procedures or collective labour agreements. Not allowed to say no DE
because it is a principle (implying a high level of generality). Equally, the reference to
Member States cannot preclude the application of the principle directly in NC. Applies to contracts between individuals, collective labour agreements and legislation.
An important qualification of the principle is that it did not apply as regards to the past- so direct effect of Art 157 TFEU cannot be relied on against discrimination conducted prior to this judgement.
Direct effect as a policy choice
Pescatore: 'the reasoning of the court shows that judges had 'une certaine idée de l'Europe'
of their own and that it is this idea which has been decisive and not arguments based on the legal technicalities of the matter.'
Lecourt: une séduisante mais lointaine abstraction intéressant seulement gouvernements ou une réalité effective et par conséquence créatrice de droits.
Mancini : Difference between American Declaration and Treaty of Rome : one people in
America v peoples of Europe, and the fact that the latter was a treaty.
The main endeavour of the ECJ has been to remove the distinctions between treaties and constitutions. We see this in the Supremacy clause of Costa v ENEL. This was indispensable to the functioning of the EU and to prevent to erosion of the EU project, but also was a logical development- self-evident that in a quasi-federal system that the issue of supremacy will arise only if federal norms bear directly on citizens without need for representation by member states. SO Van Gend en Loos made the space for Costa to emerge.
The special case of Directives
Pubblico Ministero v Ratti
Directive required introducing rules governing packaging and labelling of solvents. Italy failed to implement. Ratti packaged in accordance with Directive, and was then subject to criminal proceedings in Italy. Court held, obviously yes- MS may not rely on its own failure against individuals. However, he was not able to rely on the Directive governing varnishes,
as the time period for which to implement the directive had not yet passed. Until then, the
MS remains free in that field. This is the estoppel argument. It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.
Interestingly, there were two Directives: one of these, to do with varnishing, had not yet seen the expiry of the implementation period, and so Italy remained free in that field.
Mancini:Founded upon a respect for rule of law (Van Duyn). To ensure that neither MS
nor Commission may rely on its malfeasance to deny Community citizens the legitimate expectation which the rights have conferred. An explanation for
Ms Marshall attempted to fight back against a retirement age set for her which was more restrictive than that which applied to men.
UK attempted to argue that the Directive stating that the actions of the Health Authority were unlawful.
With regard to the argument that a directive may not be relied upon against an individual, it must be emphasized that according to Article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each Member State 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. It must therefore be examined whether, in this case, the respondent must be regarded as having acted as an individual.- how does this square with the argument previously made in
Defrenne, that being addressed to Member States did not warrant the conclusion it could not be applied horizontally, in private contract situations.
In that respect it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether employer or public authority. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law.- Doesn't matter what capacity the State is acting in, as an employer otherwise; if it is still the state, then they can have direct effect.
What distention can we draw between public authorities and normal citizens in regards to the estoppel argument?
Who is the 'State'
Foster v British Gas Fell to be decided what counted as 'the state' for the purposes of directly effective
At para 20: It follows from the foregoing that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.
For these purposes, a broad range of bodies have been included as emanations of the State,
including local authorities, regions, nationalised industries, private undertakings and universities. The Court has made clear that all such authorities have an obligation within the limits of power assigned to them to apply provisions of directives, and refrain from applying conflicting provisions of national law. This phenomena has been referred to as administrative direct effect.AG Jacobs has argued that the broad notion of State meant that Directives could be enforced even against commercial enterprises where there was some element of state participation or control, 'notwithstanding that they might be in direct competition with private sector undertakings against which the same directives are not enforceable.' The price to be paid by nationalised industry is that the relevant industry is subject to whatever duties flow from a Directive.
No horizontal direct effect of directives:
Faccini Dori v Receb
Directive gives a right to a cooling off period to contracts concluded face to face- national law conflicts and holds contract valid. Could the directive apply?
The effect of extending that case-law to the sphere of relations between individuals would be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations.
It follows that, in the absence of measures transposing the directive within the prescribed time-limit, consumers cannot derive from the directive itself a right of cancellation as against traders with whom they have concluded a contract or enforce such a right in a national court.
Ways to get around this:
1) Marleasing makes it clear that, 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 the third paragraph of
Article 189 of the Treaty.
2) Under Francovich, Community law requires the Member States to make good damage caused to individuals through failure to transpose a directive, provided that three conditions are fulfilled.
CF: AG Lenz in Faccini Dori: Advocates scrapping the rule
The answer afforded by the Court's consistent case-law to question as to the effects of an unimplemented directive on legal relations between private persons — also known as horizontal effect — is straightforward and clear: a directive may not of itself impose obligations on an individual.
Why should horizontal effect of directives occur?
a) Considerations favouring the horizontal effect of directives reflect a drive to do justice by the beneficiary of a provision which the Community legislator intended to be binding and not to abandon his situation for an indefinite period to the whim of a
Member State in default of its obligations.
b) Foremost among the arguments in favour of directives' having horizontal effect is that relating to equality of the conditions of competition. Moreover, in the absence of horizontal effect, persons in Member States which comply with Community law are frequently placed at a disadvantage.
c) Principle of prohibition of discrimination:
1) First, it is unsatisfactory that individuals should be subject to different rules,
depending on whether they have comparable legal relations with a body connected with the State or with a private individual.
2) Secondly, it is contrary to the requirements of an internal market for individuals to be subject to different laws in the various Member States even though harmonizing measures have been adopted by the Community. Could this be an argument for saying that Directives, legally speaking, already have horizontal effect? If those disparities were to be maintained, it would go against the stated aim of the approximation of legislation. That finding cannot be refuted by arguing that it is in the nature of directives that there are bound to be different conditions as between Member States until such time as the directives are transposed into national law.
3) On legal certainty- horizontal effect of Directives may be problematic- but less so now because the Directives are published, following the Maastricht Treaty,
Article 191 of the EC Treaty also requires directives to be published in the Official
Journal of the Community. On legitimate expectations: is the expectation that a
National legislature will defy Community law an expectation worth protecting?
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