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DIRECT EFFECT - Coggle Diagram

- - - - It all started with the Dutch administrative court that referenced a preliminary ruling on the EEC Treaty interpretation, in which he questioned the ECJ about the internal effect and on wether private individuals can on the basis of its articles, assert individual rights that the national courts must protect.
        The case involved a Dutch company that wanted to challenge a customs duty increase by the Dutch government, arguing it violated the EEC Treaty.
        The importance reside in the fact that before that case, the treaties were seen only as agreements between MS.
        However the ECJ rejected this point of view, responding that the treaties are more than just merely agreements that creates obligations between MS, furthermore, the ECJ argumentated that the EU constitue a new legal order where the subject are not only the MS but their citizens as well.
        EU law confers rights on individuals that become part of their "legal heritage," which they can use even if their own national laws say otherwise
        
        Ground (justificações) for granting direct effect :
        Common market** : The objective of the EU is the creation of a common market, which directly concerns thw nationals of the MS
        The Preamble : In the Preamble the Treaties refer to the subject of the Ms, not only the governments
        Existence of Preliminary Ruling : The existence of a mechanism that allows national courts to for an interpretation to the CJEU shows that EU law is invokable in the national courts
        
        JUDGEMENT
        In this judgement hte ECJ decided that the German company could invoke the provision of the Treaty against State before the national court since it contained a clear and unconditional prohibition (in the forma of an obligation to obstain).
        From there was established that in order to have direct effect the Union rule must be clear, precise and uncondicional, in other words the rule must be self-enforcing.
        
        THE PRINCIPLE OF DIRECT EFFECT WAS LATER REFINED IN OTHER CASES.
        
        Van Duyn
        (DE Directives)
        
        The case started by the preliminary ruling on the interpretation of the rules on the free movement of workers, with regards to the special measures aplicable to foreigners on grounds of public policy, security and public health.
        The issue of the case was the refusal of entry of Mrs. Van Duyn, a dutch national, to british territory, wehre she wished to work as a secretary for the Church of Scientology which would be contrary to public policy.
        Mrs. Van Duyn challenged this decision in a British court, relying on a provision of an EU Directive regarding the free movement of worker
        Prior to this case, there was doubt about whether Directives—which are formally addressed to Member States—could grant rights to individuals.
        The Court ruled in favor of Mrs. Van Duyn, stating that it would incompatible with the binding of directive defined in the 288 of tfeu to exclude the possibility that they could be invoked by individuals, also alegated the useful effects stating that the effectiveness of a Directive would be severely weakened if citizens were prevented from relying on it before national courts and if judges were prevented from taking it into account as an element of Union law.
        The fact that national courts can ask the CJEU to interpret Directives under Article 267 TFEU implies that these acts are intended to be invoked by individuals
        
        Fora a Directive to be invoked it has to be clear, precise and undicionnal.
        
        Defrenne
        (Ambiguous expression - Principle)
        
        This involved gabrielle defrenne, a stewardess for a Belgian airline, which was paid less than her male colleagues, and therefore attended a to the national courts.
        The stewardess invoked the article 119 of the TFEU, the principle of equal pay, the ECj decided that this principle coukd be invoked because this principle is one of the foundation of the comunity, however there zas a debate about the wording , it was disscussed about the possibility of provision possuing direct effect becasue of the wording "principle", bing too vague, however the court said thath the word principle was used to highlight the fundamental nature of the provision, also that provision was fromallyb adressed to the MS, but even if its true it deosnt exclude the citizen from being confered rights.
        
        Stoeckel
        (Reenforce the idea of creating individuals rights)
        
        The case involved equal treatment for men and women in the workplace
        . Specifically, it looked at national laws that prohibited women from working at night, while allowing men to do so.
        The case focused on Article 5 of Directive 76/207/EEC
        . This EU directive was created to ensure that men and women have the same working conditions.
        Because the EU rule was "clear and precise," individuals (like Mr. Stoeckel, who was prosecuted for employing women at night) could point to the EU Directive in a national court to show that the national law was wrong.
        
        Costanzo
        (Application to the Entire Administration)
        
        While the principle of direct effect originally focused on the ability of individuals to rely on EU law before national courts, the Costanzo judgment expanded this duty to the entire national administration
        . This means that the obligation to respect EU rights is not just a job for judges, but for all public officials
        An individual can rely on a directive's provisions against the State only when specific criteria are met
        -The provisions must be unconditional and sufficiently precise regarding their subject-matter
        -The Member State must have failed to implement the directive into national law by the end of the prescribed period, or it must have failed to implement it correctly
        INTRODUCED BY RATTI
        
        The Obligation of Administrative Organs
        All organs of the administration are obliged to apply the provisions of the directive
        This obligation is not limited to central government ministries; it specifically includes decentralized authorities such as municipalities.
- - - - Request for a preliminary ruling on the interpretation of a directive and whether it has direct effect, in the
        sense of conferring rights on individuals that they can invoke before the Court of a Member State
        The ECJ begins by stating that it would be incompatible with the binding effect that Article 288
        recognizes for directives to exclude in principle that the obligations they impose can be invoked
        by those concerned.
        THE USEFUL EFFECT OF SUCH AN ACT WOULD BE WEAKENED IF INDIVIDUALS WERE
        PREVENTED FROM RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF THE
        LATTER WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT
        OF COMMUNITY LAW .
        Directives are binding and will be more effectively enforced if individuals can rely on
        them
        art. 267 TFEU allows national courts to refer questions concerning any EU measure to
        the ECJ, including directives, and this implies that such acts can be invoked by
        individuals before national courts (Van Duyn).
    - - MS are precluded by their failure to implement a directive properly from refusing to
        recognize its binding effect in cases where it was pleaded against them (Ratti).
        There was also a reference for a preliminary ruling on the
        interpretation of two directives that had not yet been transposed into Italian law, and the
        court was asked whether their direct effect could be invoked.
    - - The core message is that a directive cannot, by itself, impose obligations on a private individual
        . This means that in a legal dispute between two private parties (Private Party v. Private Party), a directive cannot be relied upon "as such" to create a legal duty for one of them
        The Court’s reasoning is strictly textual, based on the wording of what is now Article 288 of the TFEU
        The Treaty specifies that a directive is binding "upon each Member State to which it is addresse
        The Marshall judgment itself expanded the definition of the "State" to include any body subject to state control or possessing "exorbitant powers" (like health or local authorities)
        . This allows more people to use the vertical effect of directives
        This is confirmed in Foster, 1990, C-188/89. This concept includes tax
        authorities, independent authorities, local authorities, health authorities providing
        public health services, etc.