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Sources of EU law - Secondary (Directives (used to ensure that Member…
Sources of EU law - Secondary
Secondary EU law
the body of law that comes from the principles and objectives of the Treaties
includes regulations and directives
passed by EU institutions under :black_flag: Article 288 TFEU
Regulations
general application
i.e. a regulation applies uniformly to all Member States
binding on all Member States
directly applicable
i.e. a regulation automatically becomes law in each Member State with no requirement for the State to do anything to implement it
may create rights and obligations directly enforceable in the national courts
overall, concept of DIRECT APPLICABILITY
apply automatically and uniformly to all Member States without needing to be transposed (transferred) into national law
e.g. :red_flag: Re Tachographs: Commission v UK
Directives
used to ensure that Member States adapt their own laws to achieve common standards throughout the EU - harmonisation
e.g. health and safety laws, consumer rights, company law
known as 'harmonisation'
mainly used in areas where many diverse (differing) national laws would have a harmful effect on the functioning of the EU
e.g. banking
Member States can choose
how
they implement directives
but must do so within a set deadline/time limit set by the European Commission
directives are NOT directly applicable
Member States have to make their own national laws to implement directives (bring them into effect)
the UK usually implements directives by statutory instrument
e.g. the :black_flag: Working Time Regulations 1998 implemented the Working Time Directive, which sets the max. weekly working time, patterns of work, holidays etc.
can also be implemented by Act of Parliament or by an Order in Council
e.g. :black_flag: Consumer Protection Act 1987 implemented EU directive on liability for defective products
Act was passed by Parliament within the implementation time limit set by the EU
CJEU has developed the idea of 'direct effect' to deal with situations where a Member State has not implemented a directive within the time limit specified
a directive may be directly enforceable by an individual against a Member State, despite its failure to implement the directive
Dealing with Unimplemented Directives
Vertical direct effect
individual adversely affected by failure to implement directive has rights against the State, but no other individuals
adversely affected = has lost out
this stops a Member State from taking advantage of its own failure to comply with EU law
:red_flag: Marshall v Southampton Health Authority
applies where individual's claim is against the Member State, including 'an arm of the state'
important where the unimplemented directive was clearly designed to give rights to individual citizens
Horizontal direct effect
HOWEVER, directives are incapable of having horizontal direct effect
a person adversely affected by failure to implement directive has NO rights against other individuals (or non-state bodies) and cannot bring a case against them
this is unfair - it is the fault of the Member State that the individual has lost out
if a certain provision of EU law is horizontally directly effective, then citizens are able to rely on it in actions against each other
there is the FRANCOVICH PRINCIPLE from :red_flag: Francovich v Italian Republic which the CJEU allowed:
individual who has suffered loss due to Member State failing to implement directive may claim damages from the State