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Direct effect cont - Coggle Diagram
Direct effect cont
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Directives
- Form of sec leg: binding form of EU law (Art 288)
- binding upon each MS to which it is addressed...shall leave to the national authorities the choice of form and methods
- Directives must be implemented by MSs enacting legislation to give effect to Regs (unless existing law already fulfils the requirements)
- Once implemented, indivs can rely
- Conflict with 2nd requirement of VGEL criteria - provision must be unconditional to have DE. Not unconditional if subject to implementation by MSs. Therefore as all directives have to be implemeted by MSs, they appear to fail the VGEL criteria.
:briefcase: Van Duyn - court held directive in that case could have DE:
1) would be incompatible with the binding effect of directives to exclude DE
2) Effectiveness of directives would be weakened if they could not be relied upon before national courts.
But certain (German and French courts) rejected this - accused CoJ of overstepping jurisdiction; refused to give DE to directives.
Court responded in :briefcase: Ratti by using new rationale for permitting directives to have DE.
Rationale = MS cannot rely on its own failure to perform the obligations that the Directive entails.i.e DE was a 'solution' to the failure of MSs to implement directives properly. French and German courts accepted this.
How did the CJ reconcile this with the :briefcase: VGEN criteria?
CJ had held in :briefcase: Van Duyn that the :briefcase: VGEN criteria also applied to directives. Provision must be sufficiently clear and precise; must be unconditional - this requirements caused the problem.
Solution in :briefcase:Ratti (and other cases) - to adopt a much more developed set of criteria for determining when a directive will meet that requirement.
Solution:
Implementation date must have passed (at the time in which the event happened that forms the basis of legal action). If deadline had passed, directive would be capable of having DE. If the provision of the directive had not been implemented at all, or only partially or incorrectly implemented. So if MS has failed to implement the directive properly, by the relevant date, then the conditionality requirement is deemed to be satisfied.
:briefcase: Marks & Spencer
CJ took test one stage further: directive can have DE when it has been implemented correctly but the national measures (laws) are not being applied by the national authorities) in a way that achieves the result sought by the directive - i.e. being applied in a way that undermines the objective of the directive.
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Criminal liability. Est in case of Berlusconi.
Directive cannot be given direct effect in order to render someone criminally liable where a person would not otherwise have been (or to make crim liability more severe). Could not have DE against a private indiv.
Issue - enforcing a directive successfully can depend on who the directive is being enforced against - CJ has gone some way towards mitigating these limitations by developing 2 further methods of enforcing EU law in national courts: indirect effect and state liability.