The Relationship Between Eu Law And National Law Notes

The relationship between EU and national law

Direct Effect

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 288- only 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.

Van Duyn

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:

1. 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.

2. 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:

1. the individual can rely on a directive where a Member State has fully exercised its discretion on implementation,

2. where the State has chosen to exercise or not to exercise a particularly discretionary option (SIMAP v Valencia)

3. where a clear and precise obligation can be separated out from other parts of a directive (Braathens Sverige AB)

4. 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...

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