A more recent version of these Direct Effect And Supremacy notes – written by Oxford students – is available here.
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EU and National Law: Supremacy, Direct Effect, Consistent Interpretation, state Liability. Hartley, chapter 7:
1. Principle of Direct Effect.
1. Basic Ideas
Van Gend en Loos first decision on DE. Case arose when private firm sough to invoke Union law against Dutch customs in proceedings in a Dutch tribunal. Main issue: was Article 12 of EEC Treaty directly effective?
Provision addressed to MS, imposed obligation but did not grant any corresponding right o individual to import goods free from any new customs duties.
Court laid down test: "Wording of art 12 contains clear and unconditional prohibition which is not positive but negative. Not qualified...gives rise to direct effects in legal relationship between MS and their subjects.
Suggestion that only negative obligations may be DE has been dropped: test now:
1. Clear and Unambiguous
# ie. right must not be dependent on something within the control of some independent authority, such as a Union institution, or the MS itself. In particular must not be dependent on judgment or discretion of any such body.
# Von Colson: Woman argued that job refusal based on sex gave her directly effective right because there was union provision that required MS to provide legal remedy for victims of discrimination. E Court held that there was discretion in what kind of remedy the MS would give, there were several ways.
# Van Duyn v Home Office: Scientology denied entry to UK. UK opposed scientology and EU allowed free movement art 45(3) TFEU. Difference to Von Colson, in Von Colson the MS had discretion as to how they would give effect to the right, and in Von Duyn, MS merely given limited power to restrict it in certain circumstances. The right was not incomplete until MS acted in Von Duyn.
3. Not Dependent on Further Action
# If Union provisions have time limit, not implemented by time time, provisions can become directly effective.
# Court in Defrenne case said that requirement of further action did not prevent if from being directly effective thereafter.
Good e.g. Of introducing new legal principles. Slowly whittle down relatively strict test in Van Gend en Loos. ---> Direct effect = norm not exception.
This was general stuff, let's look at specific provisions of sources of community law.
2. Treaty Provisions.
No statement in any Treaties if Treaty provision are directly effective.
Art 288 TFEU: Regulation is directly applicable in all MS. (Likely they intended to mean directly effective.) Problem: then only things labelled directly applicable can be directly effective (because of art 288 only treaty regulations). Best solution, bypass semantic issue, discussion is futile!
Regulations normally DE, so E Court laid down general rule that, except where necessary, national implementing measures are improper (Commission v Italy 1973).
* Exception 1: Where Reg itself requires it ,eg Art 21 of Tachograph reg.
* Exception 2: Impliedly permit it (Bussone 1978)
1. The Treaties
Art 288 refrains from saying directive are DA. You'd think there is no possibility here because it depends on national legislation, but ho ho there is.
2. The First Step
Grad and SCE case, both cases, role of directive limited to setting date when prov would come into force. E Court held that this fact did not prevent prov in other instrument from being directly effective. So still only in limited sense that directives were DE.
3. The New Principle
Van Duyn: Court asked whether at 3(1) of Directive 64/221 was DE. Court said Directives can be DE. Three arguments:
* 1. would be incompatible with binding effect attributed to directive in art 288 to exclude possibility of DE. (not convincing)
* 2. Policy argument, practical effectiveness of measure would be greater if individual were entitled to invoke it before national courts.
* 3. Based on art 267 (governs references from national courts to E Court). Court argued that this implies that all such acts included therein can be directly effective.
* Strongest argument, not made by court: equitable - UK was denying Van Duyn right on ground of its own
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