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Recap + State Liability for Breach of EU Law Chalmers 2010
Originally, direct effect was a 'defensive right' directed at administrators
2 Direct Effect and the Idea of an EU Right
Two central elements of Van Gend en Loos:
* 1. Court of Justice claimed EU law not within traditional categories of IL but formed new sovereign legal order
* 2. Establishment of new system of rights through the doctrine of direct effect. Forces us to rethink EU law in terms of max benefit it can grant individuals.
Van Gend en Loos
* "first question...whether now Art 28 TFEU has direct application in national law in sense that nationals may on basis of this art lay claim to rights which national court must protect."
* "...Community law also intended to confer upon individuals rights which become pat of their legal heritage."
* "..fact that it is the MS who are made subject of the negative obligation does nto imply that their nationals cannot benefit from this obligation.."
Ground-breaking as regards the impetus, judgment will narrow in three respects:
# 1. Ambit is circumscribed because only "some" Treaty provision which meet certain criteria can have direct effect and in this judgment only Art 28 TFEU met these.
# 2. Judgment narrow in what is mean by right. Very vague about extent and nature of obligations that are owed to right holder by others.
# 3. Judgment was silent on types of procedure, sanction or enforcement mech that should be deployed to protect the right.
3 Exploitation of Direct Effect
In 1970s, we see Court expanding direct effect in a number of directions.
i. Relaxing the criteria: towards a test of justiciability
First, relaxment of criteria for when a provision my be directly effective
* Van Duyn: even if provision not set out absolute Entitlement, could still be invoked in national courts if any qualification or condition was subject to judicial control.
* Reyners: Court swept away that only negative provisions could be invoked in national courts.
So what were criteria now?
* Defrenne v Sabena No. 2: Facts: Air hostess must retire at 40 and males don't case. Court gave the provision of now Art 157 TFEU a double meaning to enable the finding of direct effect. 1. Acquired programmatic and wide purpose, namely, to secure the equality between men and women in econ system as whole. 2. more specific, prohibit pay discrimination between men and women in individual workplaces.
* Obviously court relaxed criteria: to suggest that provision too uncertain to be invoked in national courts and to suggest that it has double meaning is to indicate that it is not clear!
* So now, post Defrenne, we have "sufficiently precise and unconditional" test. Suggests that importance is not not on entitlements alone but that there are also set out direct duties on national administration to protect these entitlements.
ii. The state's duty to protect individual rights and the emergence of horizontal direct effect
While DeFrenne not first case to hold positive obligation to be DE, was first to address the institutional implications of this for MS. At para 31, "fact that formally addressed to MS not prevent rights from being conferred at same time on any individual who has an interest inthe performance of the duties thus laid down."
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