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Direct effect, primacy and state liability - Coggle Diagram

- - - - Monists: national and international law are part of a one legal clump → no need for implementing measures
      - Dualists (e.g. Finland): international agreements do not in itself have domestic effects. Parliament puts an international agreement in effect and that can be applied in court
      - Does this monist / dualist aspect also apply to EU treaties?
        No clear answer, but mostly yes
  - - - Main points of the treaty:
        
        Common market that has direct effect to individuals
        
        Preamble of the treaty: ever-closer union among PEOPLES of the EU
        
        European parliament → citizens implicated and represented
        
        In the TEU, the EU has been created to use sovereign competence, the use of which affects individuals
    - - Just because the Commission has some power doesn’t mean that individuals lack it
      - Individuals can protect their rights by suing a country, adds to the supervision (they supervise countries success in reaching the objectives)
      - If individuals must rely on the commission, they can’t uphold their own rights
    - - Present when the law is applied, the treaties don’t have regulations
      - Direct connection between citizens and the EU
      - The case brought EU law closer to unitary state law (yhtenäisvaltiollinen oikeus)
      - Now also private, individual and national courts supervise and apply EU law
- - - - The time frame to implement the directive has to have ended
      - The obligation has to be unconditional and precise enough
  - - - Marshall wins since her employer is part of the state (NHS) so she can sue on the grounds of a directive violation
      - Worry for legal certainty: too hard for individuals to track all directives across Europe
      - On the other hand: fundamental treaties, regulations and decisions all have direct vertical and horizontal effect
  - - - B.G is legally a company, but it is mainly operated by the state
      - Court: in order to belong to the state (under these conditions the relation between individual and the unit becomes vertical):
        
        Must be under state control
        
        Must have some special public legal power (that differs from rights that stem from regulations applied to relations between individuals)
        
        FARRELL 2017: You don’t need both control and special power to qualify
  - - - Gave directives interpretative effect
      - Obligation to reach the objective required by the directive concerns member states’ every official and court
      - National courts applying national legislation, they have to interpret it in the light of the directive’s wording and objective
    - - Further ratified the interpretative effect of directives
      - Companies suing each other, defense relies on directive
      - Prosecutor: no, it’s not horizontal, you must ask the ECJ
      - ECJ: When a national court is interpreting national law, it must do so in light of the wordings and purpose of a directive behind a national law → this has horizontal effect!!
        
        IMPACT 2008: National law mustn’t be interpreted against directive’s wording
        
        BERLUSCONI 2005: Criminal liability of the accused can’t be determined or harshened by the directive
    - - No matter whether national law has been put into action before or after the directive
  - - - Directive can’t impose obligations to individuals, but it can nevertheless have a negative effect on individual’s legal position
      - Directive excludes national law that’s contradicting with it (Law can’t be applied but the directive doesn’t replace it)
      - This happens due to member state’s neglect
      - Italy passes law on olive oil labels
      - Directive 83/184 Italy must inform commission
      - Commission: problematic for market → Italy must stop the law for 12 months
      - Italy doesn’t comply
      - Unilever Italia delivers olive oil to Central foods → wrong labels, can’t sell
      - Unilever: Italian law is unlawful → because of the directive
      - C.F: we don’t care → can’t use directive
      - Let’s ask for help from the ECJ!! =)
      - Court: Here directive is not actually creating obligation but rather taking out a part of national law → national law is not applicable
      - So, you can’t use the directive in horizontal effect
  - - - Directive says no to discrimination because of age
      - Member states are given a certain period to put it into effect, but it hadn’t ended yet
      - It was thought that Mangold would lose
      - It’s a fundamental right to not be discriminated against (it’s not coming from just one directive). Therefore, it has horizontal direct effect and it should be applied regardless of the directive
      - Is there another source we could use?
      - Extremely controversial case
      - Mangold has faced other cases too
      - It’s effective to use fundamental right as an argument → general principles are applied even though directives don’t have direct horizontal effect
- - - - One-sided measure put into action later can’t be contradicting with EU law
      - EU law is an independent source of law and it can’t be overridden by national law (this would question the whole legal basis of the EU)
      - Harmonization of legal systems isn’t possible without EU law’s primacy
  - - - If the national parliament has given primacy to EU law, why can’t it also take it away? --> Our national parliament has given EU law its effect → ratified the treaties etc.
      - What if a member state changes its constitution, to say no to EU law?
      - Kompetenz – kompetenz = who has the right to decide who has competence
        
        EU has competence only in the areas it has competence that member states have given it → German sees that its parliament can decide on which areas EU has competence in → ECJ has a completely different aspect (the ECJ sees that it has the right to decide whether the EU has competence or not) --> no single solution, there have been disputes
    - - POLISH CONSTITUTIONAL TRIBUNAL 2021: The Polish constitution says that any EU primacy is unconstitutional → EU has taken legal action against Poland
      - DANSK INDUSTRI 2014
- - - - Art 4 (3) TEU: Principle of sincere cooperation -->
        Member states must implement all measures, to ensure the fulfillment of EU obligations
      - Principle of Efficacy: EU law must be efficient
  - - - It’s not very easy to win against EU legislation, but suing is possible → we must protect the special nature of EU law
      - We need to make sure that liability doesn’t stop legislation in fear of lawsuits
      - When lawmaker is active wide discretion damage act should not limit → damages come into question only if there is apparent and wide breaching of the rules
    - - The rule of law infringed must be intended to confer rights on individuals
      - The breach must be sufficiently serious: Has the member state manifestly and gravely gone against the EU? Manifestly and gravely = there is some space for movement for member state (breach doesn’t have to be intentional)
      - There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties (has this organ violated it directly?)
      - If these three conditions are met, STATE LIABILITY APPLIES
    - - The court says that EU law establishes these three conditions → it’s up to national liability factors to decide on details
      - Domestic law must not discriminate against EU claims
      - You can’t make it excessively difficult in practice (make the details too complicated or hard to win a case)
      - The compensation must be relative to the distress caused
      - In general, a fair system → you sue the real culprit