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L2 - effects of EU law in national legal systems - Coggle Diagram
L2 - effects of EU law in national legal systems
Current test for direct effect
(b) unconditional;
(c) the member sate in question failed to implement the directive by the end of the period prescribed therein or failed to implement the Directive correctly,
(a) must be sufficiently (clear and) precise
So, now directives have direct effect as well.
Are they applying this too generously?
How else would you give force to EU law, if member states did not have to set aside national law?
CJEU have expand direct effect to apply to a broad range of EU sources o.f law
2 types of direct effect: vertical and horizontal. Horizontal is between private parties, or vertical can be enforced against public bodies.
Marshall Case: established directives do not have horizontal direct effect.
Has the denial of horizontal direct effect, strengthened the case for national courts to accept vertical direct effect.
Principle of direct effect
'the community constitutes a new legal order in international law for whose benefits the states have limited their sovereign rights, albeit within limited fields.'
Established in van send en loos: a treaty provision will produce direct effect in the member states, if it is clear, unconditional, not dependent on any subsequent further implementation measures to be adopted by the member states.
Van gend en loos case 1963: asked for preliminary ruling on article 30 TFEU, regarding import tax. Court ruled they have jurisdiction to answer question on treaty interpertation. And that art 30 produces direct effect.
The court were being reserved, as treaty provisions and regulations are automatically law yet directives require member states to implement them into national law.
Defrenne II - treaty provisions
CJEU, found the directive has direct effect, so can be relied upon in national courts, bc the article in question (157 TFEU0 forms part of the social objectives of the EU. - The EU is not only an economic union, put intend to ensure social progress.
Did the EU go beyond their scope of EU law, as they didn't use the traditional underpiimh objective of teheconomic function of the internal market or is this natural progression.
Concerns equal pay of air hostesses, was a provision on equal pay a barrier to trade? Belgium courts asked for preliminary ruling. question was if directive had direct effect.
Para 40 of judgment: essentially states that any provision of EU law, regardless of whether it's directly related to the function of the internal market on the face of it, must be enforced by national courts to give individual citizens of the EU the rights that the treaty intends to give them.
However, is article 157 TFEU not sufficnelty clear and precise?
Van Gend En loos
estalsihes direct effect
establishes in particular that treaty provisions are directly applicable in national courts regardless of national law.
Origins of
principle of supremacy
of EU law. Oversize, MS could pick and choose which laws they comply with. Essential to ensuring the objectives of EU, what would it be without supremacy? However, in criticism if the states don't agree to it but it is enforced by CJEu due to supremacy this weakens democracy and accountability.
COSTA V ENEL and supremacy: Costa argued Italian act of nationalising electricity was a breach of EU law.Issue was do the provisions have direct effect. CEJU established EU law supremacy over a unilateral MS measure, as it would undermine the treaty.
Supremacy is underpinned by the argument that member states knew what the nature and purposes of the uhnnon was and without surety they would be bale to envoke this.
INTERNATIONALE HANELSGESELLSCHAFT: entrenched supremacy further, germnasy had to set aside hierarchy of their own legal order to ensure EU law was supreme.
SIMMENTHAL: Eu law renders conflicting national law invalid, oversize the foundation of the union would be threatened.
The CJEU is the driver of the principle of supremacy. Article 19 TEU: 'it shall ensure that in the interpretation and application of the treaties the law is observed'. - the foundation for direct effect and supreamcy.
Regulations and direct effect
Article 288 TFEU: Regulations are of general application, so where the criteria for direct effect are met, they can be invoked horizontally or vertically. So, regulations are are directly applicable their entirety in all member sates.
Not much room for CJEU interoperation of Article 288.
Least contested by member states, bc of Article 288 TFEU. Clearly distinguishes between regulations and directives.
Article 2888 TFEU: Comparatively, Directives are ' binding as to the result to be achieved upon each member State to which it's addressed, but shall leave to the national authorities the choice of form and methods.
So, many member states argue that only regulations should have direct off ct not directives, based on the wording of Article 288. Critiquing the CJEU for going beyond their means.
Moreover, surely a regulation shouldn't have direct effect if it does meet the criteria.
Van Dunn v Home Office
Although the directive had direct effe ct, the individual could still be refused entry as MS can choose how they implement this, as long as it complies with the directive.
Article 288 TFEU examined, CJEU established directives impose on member states the obligation to pursue a particular course of action, which gives individuals rights which can be relied upon.
CJEU found directives do have direct effect.
Van Duyn claimed the Hone Secretary infringed her right under Article 45 TFEU and free movement of workers directive 64/221/EC by denying her right to enter the country to work at church of scientology. UK argued directive has no vertical direct effect.
CJEU continues to take a wide approach to direct effect.
Issue of what if a directive is implemented wrong, and doesn't give true effect to the directive? It still has direct effect : Case 51/76, reasoning that actual provisions of EU law would loose effectiveness if individuals couldn't enforce them.
Member states + direct effect
Many feel only regulations should have direct effect. Yet Article 4 (3) TEU establishes it's the EU's responsibility to take all appropriate measure to ensure fulfilment of the objectives of the treaty.
1980, French Supreme Court refused to follow Van Gend En Loos.
3/6 original member states have intervened to argue against direct effect.