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Supremacy and Direct Effect (Requirements for direct effect (Directives…
Supremacy and Direct Effect
Van Gend en Loos
The facts
Article 12 EEC - prohibition on increasing customs duties
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Preliminary reference by Dutch court: "whether nationals of a State can lay claim to individual rights which the court must protect"
Judgement
EEC Treaty is more than an agreement between MS - constitutes a new legal order of international law
MS have limited their sovereign rights
Not only imposes obligations on individuals, but also grants them rights
Article 12 creates individual rights which national courts must protect
Significance
Laid foundation of supremacy of EU law
Established direct effect
Supremacy
Costa v ENEL: "the law stemming from the Treaty could not be overriden by domestic legal provisions, however framed"
Internationale Handelsgesellschaft
EU law takes precedence over national constitutions
Including fundamental rights provided by them
Simmenthal
Supremacy applies in all national courts, irrespective of when national law was enacted - effect is that national law is disapplied
Direct applicability and direct effect
Direct applicability
Fully applicable in the MS without measures being taken to implement
Direct effect
Confers immediate rights on individuals which can be enforced in national courts
Requirements
Van Gend en Loos
Sufficiently clear and precise
Unconditional
Cooperativa Agricola
Adds nothing new to Van Gend en Loos criteria but provides good explanation
Sets out an obligation in unequivocal terms
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Obligation is not qualified by any condition or subject in implementation or effects, to taking of any measure, by Community Institutions or MS
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Positive obligations
Initially couldn't have direct effect
Van Gend en Loos: "The wording of Article 12 contains a prohibition which is not a positive but a negative obligation"
Subsequently could have direct effect
Lutticke - positive obligation to remove discriminatory measures by 1 Jan 1962 - had direct effect
Vertical and horizonal direct effect
Vertical - against the state (Van Gend en Loos)
What is the state?
Initial cases
Becker - Tax authority
Johnston - Police force
Fratelli - Local/regional authority
Foster v British Gas Plc
Bipartite test (para 18)
Subject to authority or control of the state OR
Have 'special powers'
Tripartite test (para 20) - official answer solely referred to this (para 22)
Providing a public service AND
Under the control of the state AND
Has for that purpose 'special powers'
Horizonal - against private parties
Defrenne v SABENA (No.2) - Article 119 EEC capable of direct effect against private parties
Requirements for direct effect
Treaty Articles (Van Gend en Loos)
Sufficiently clear and precise, and 2. Unconditional - Van Gend en Loos
Capable of being relied upon against the state (vertical) and a private party (horizonal) - Defrenne
Regulations (Politi - see also Franz Grad)
1 Sufficiently clear and precise, and 2. Unconditional - Azienda Agricola
May be relied upon against the state (vertical) and a private party (horizonal) - Antonio Munoz
Decisions (Granz Grad
Sufficiently clear and precise, and 2. Unconditional - Franz Grad
May be relied upon only against the party to whom the decision was addressed - Carp Snc
Directives
Problem in that they appear inherently conditional - leaves form and methods of implementation to the Member State - not directly applicable
Court of Justice found that they are capable of direct effect - Van Duyn v Home Office
Ratti - rationale that a MS cannot rely on its own failure to perform the obligations that the Directive entails
Requirements
Sufficiently clear and precise
Unconditional
Implementation date must have passed (Ratti) AND must have have been implemented at all (Ratti) OR only partially or incorrectly implemented (VNO) OR correctly implemented but national measures not being applied by national authorities in a way that achieves the result sought by it (Marks & Spencer plc)
Can only have vertical direct effect - Marshall v Southampton & SW Hampshire AHA
Confirmed in Dori