direct/indirect effect
Direct effect
Van Gend en loos
treaty articles need not be legislated into national system to b effective
individual can rely on provisions in their national court
regulations ✅
decisions
binding entirely on addressee
Directives
meant to be implemented. brought into effect by national legislature within a certain time period
international agreements
free trade agreements â›” DE - effect â›” single market
Van Duyn v Home office
directive could be relied on in national court despite UK not having introduced it into its national law
vertical and horizontal effect?
state cannot rely on its own wrongdoing to frustrate the rights of individuals under the directives
MS fault
failed to transpose directive into national law
transposed inaccurately
Marshall case
only vertical effect
court given wide meaning to 'state'
Foster v British Gas
emanation of the state 🚩
perform public service?
pursuant to measure adopted by the state?
under the control of the state?
special powers beyond : those of normal commercial undertakings?
cumulative
only be directly effective after the expiry of time limit given for its implementation - till that time MS not breach Ratti case confirmed
must be clear and precise
must be unconditional
indirect effect of directives
duty of harmonious interpretation
Von Colson v Land Nordrhein-Westfahlen
vertical claim against german prison service
sex discrimination remedies
insufficiently precise to be implemented by court
national courts under duty to interpret national law so far as possible to achieve the result laid in directive
national court part of state thus bound by article 4(3)
interpret national legislation in light of wording and purpose of union law
duty applies in relation to all legislation whether passed before or after the relevant union legislation and whether intended it implement it or not
applies vertical or horizontal case ✅
limits
some relevant national legislation required thats capable of being interpreted in accordance with directive
if there is no relevant national law or has one interpretation = â›”
legal certainty and non retroactivity ✅
create or aggravate criminal liability 🚫
civil liabilities ✅
remedies for union law rights
locus standi for ECJ under very limited circumstances
art 263 - judicial review process
art 265 - action for failure to act
art 268 + 340 - private action for damages against the Union institutions
remedies are those available under national law
exception ; state liability
must comply with 2 requirements
Equivalence - no less favorable than those relating to similar domestic claims
practical possibility; in practice virtually impossible or excessively difficult to obtain reparation 🚫
must be
effective
adequate
act as deterrent
guarantee real and effective protection
Factortame - interim relief - pending judgement as to compatibility of Act with EC law
court - no jurisdiction to set aside Act of parliament for for compliance with community law, if sole obstacle is rule of national law to grant interim relief - national law set aside
unfair dismissal
remedy be adaquate and effective thus compensation ⛔ ceiling and interest ✅
courts have to give reasons for their decisions in regard to community law rights
Johnston v RUC
click to edit
art 6 and 13 - every person had the right to obtain an effective remedy in competent court against measures they consider to be contrary to principle in directive
certificate â›” conclusive
legal basis for state liability in damages
paid to individuals (court made)
non implementation of directive
directive shall be such that
confers rights on individuals
content ot those rights ascertainable
causal link between loss and breach
other breaches
available for all whether or not direct effect of that law
must be sufficently serious breach
rule breached which
confer rights on individuals
breach is suff serious
causal link
MS manifestly and gravely ignored the limits its discretion
factors (Factortame req)
clarity and precision of breached rule
measure of discretion by that rule on national or union auth
whether infringement was intentional or voluntary
if error of law was inexcusable or nor
fact that position adopted by union institution may have contributed towards the omission
adoption or retention of national measures or practices contrary to union law
if there has already been a ruling obtained by commission under art263 and MS still persist to breach - auto suff serious
Francovich requirements
non implementation of directive ✅ suff serious
only Francovich conditions needed
procedure to bring action for damages - national rules
supremacy of EU law
Costa v ENEL
by entering into the treaty the MS had limited their sovereign rights and community law and â›”overridden by domestic legal provisions
Internationale Hendelsgesellscraft - supreme even over constitution of MS
Simmenthal case - supremacy affects both prior and future legislation
Factortame case - ignore conflicting national law
UK constitution-less - filled in by parliamentary supremacy
fundamental rule of law and judges uphold it
Dicey Parliament can make or unmake any law and no institution can override or set aside that legislation
no parliament can bind future parliament
before 1688 settlement - court could hold parliament's legislation invalid because it was in conflict with some higher form of divine law
dualist
domestic legislation must be enacted for international law to enter into national law
Lord Denning - Blackburn v AG - no notice of treaties until they are embodied in law enacted by Parliament and only to that extent parliament tells us
European Communities Act 1972 needed
s2(1)
makes direct effect part of UK legal system
s2(2)
implementation of EC obligations even where these are meant to replace national leg and Acts of Parli - via courts
s3(1)
preliminary ruling from ECJ
s2(4)
supremacy of EU law without need for legislations
traditional consstitutional appraoch
doctrine of parli supremacy and implied repeal - ECA cannot be entrenched. future parli cannot be binded
Pre Factortame
judicial approach varied
principles of construction to assume whether parli intended ECA to have any inconsistency with EC law to be resolved via primacy to EC law
where an apparently conflicting provision of english law could be read in conformity - this approach ✅
willing to give primacy to EC law to DE community law by
fictional construction of domestic law or
directly in priority application - where necessary
however
Macarthys case - Lord Denning - should parli expressly attempt to repudiate its EC obligations - courts obliged to give effect to its wishes
higher wage to man prev holding position - different times employed
ECJ - time no matter so court ✅
Garland v BRE Ltd - concessionary travel facilities to male employees families. contrary to Art 119- so 119 prevail ✅
Factortame -
domestic law v DE Community law
Lister, Pickstone, Webb
construe domestic law in conformity with EC law which was not DE even where that construction was not prima facie meaning of the statute
this was even where the national statute was introduced to implement a non directly effective directive
post
Equal Opportunities Commission
no constitutional barrier to an applicant before UK court in seeking judicial review of primary legislation which was alleged to be in breach of community law
the conceptual foundation for accepting primacy of EC law varied
Factortame
UK statute gave primacy
supremacy inherent in nature of EC Treaty
Thoburn
emphasized domestic acceptance of supremacy
laws lj
common law decided the impact of EC on sovereignty in the light of any statutes that Parli had enacted
common law modified the traditional concept of sovereignty by creating exceptions to the doctrine of implied repeal
constitutional statutes not subject of doctrine of implied repeal
repeal ✅
some express words in latter statute or words so specific that inference of actual determination to effect the result contended was irresistible
question over where EC law so repugnant to constitutional right guaranteed by law of England then it would be whether general words of ECA would allow it to incorporated and give overriding effect
if Parliament does ever wish to derogate from community law obligations - do expressly and unequivocally ✅
judiciary has two ways to reach
fulfil parliaments wishes
decide parli not free to pick and choose which ones to oblige as long as its part of community
inconsistencies will be resolved in favor of EC law unless the Parli has clearly that it intends to derogate from community laws
so if there is no clear derogation = EC law ✅
primary conception of supremacy
MS must repeal the conflicting national rule regardless of interpretation thats harmonious
grant of injunction against the crown ✅ suspend