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Lecture 16 The Legal Acts of The EU and Their Legal Effects
Lecture 16 The Legal Acts of The EU and Their Legal Effects
Lecture 16 The Legal Acts of The EU and Their Legal Effects
Learning outcomes
(ii) Describe the function and legal effects of the main sources of EU law as
prima facie transpiring from the wording of the Treaties
(iii) Identify the legal effects of, mainly, EU directives as defined by the European
Court of Justice
Traditional distinction:
‘In order to carry out their task and in accordance with the provisions of this
Treaty, the European Parliament acting jointly with the Council, the Council and
the Commission shall make regulations and issue directives, take decisions,
make recommendations or deliver opinions’.
Regulations
Main features:
• ‘general applicability’,
Directives
• Used to harmonize laws across EU. Some legal bases (e.g. freedom of
establishment, social policy) only allow for use of Directives.
Decisions
Main features:
• Used in particular in competition law and in the context of state aid rules,
but also to produce new policy areas (Socrates) or for establishing general
procedures (e.g. ‘Comitology’ Decisions 99/468)
• Mind the label! ECJ ultimately decides if form matches substance. (i.e.
they may mislabel to get away with certain things)
Article 12 TEU
‘The Union shall pursue the objectives set out in Article 11 by:
Other sources
Key questions
III. And then it’s up to states to incorporate them into domestic law
I. Individuals can draw rights from EY law directly w/o the medium of
the member state in some circumstances
Note (10 years before the UK joined) and he basically said when join the EU,
forget your preconceptions about IL)
note: the courts have sometimes shown to be generous with this criteria so in a
sense it’s not that strict buy by and large, they apply
Treaty articles which satisfy the narrow conditions for direct effect become self-
executing
So what are these principles? Art 119 is one of the first that we recognised as
being directly applicable (one of the principles in it at least); the principle of
equal pay
para 39 “since [Article 141, ex Art 119] is mandatory in nature, the prohibition
on discrimination between men and women applies not only to the action of
public authorities, but also extends to all agreements which are intended to
regulate paid labour collectively, as well as to contracts between individuals”
Regulations
This has been the big question in terms of EU law for ages. The reason is so
because in theory, directives are the flexible instruments; the one’s that should
theoretically maintain the highest level of respect for national sovereignty and
autonomy.
Bit by bit, the court decided directives should be empowered and should have
direct effect to some extent.
• She won; the court said unless we recognise direct effect in these
situations, we’re going to deny European law from its effectiveness
• Supreme Courts’ malaise – the Cohn Bendit ‘affaire’ (more next week)
– This is when some national courts got a bit nervous; when you talk
about chemical products and canned beef it’s one thing but when
you tell nations they can’t expel undesirable foreigners, things get a
bit dicey.
– So courts got nervous about hte path the ECJ was taking with direct
effect specially with directives which form the bulk of the legislation
So from that step, it was easier to suggest that directives had no horizontal
direct effect.
Basically said if the rationale for vertical direct effect is the estoppel argument;
i.e. you don’t want to allow member states to draw benefits from the poor
implementation of community directives. The other side of the coin is that you
cannot blame an individual for the non-implementation of the community
directive. Which means if the directive has not been implemented properly at a
domestic level, you can bring the case against the state but not an individual as
that individual has no power in implementing it and therefore cannot share the
blame.
• the textual argument from Art 249 EC: the obligations contained in
directives are addressed only to Member States
• HDE for directives would destroy the distinction between regulations and
directives
• HDE for directives would prejudice the rights of the private defendant and
infringe the principles of legal certainty
Now however, they seem to be looking at ways to getting around the strict no
HDE rule
iii. Incidental effect (note that it exists but it’s not clear at all what its effects are)
Bending the Rule
v. State Liability (which means you can’t sue the individual but maybe you can
sue the state for damages. Again covered more next year)
• Here, Marshall was bring a case against a health authority and the
court said a health authority may well fit into the notion of a state.
SO here you can enjoy protection of a community directive in a
vertical situation
• Note: this was decided after the privatisation of British Gas. And the
court introduced a 4-step test in deciding whether the company
counts as an emanation of the state.
para 20 “a body, whatever its legal form, which has been made
responsible, pursuant to a measure adopted by the State, for providing a public
service under the control of the State and has for that purpose special powers
beyond those which result from the normal rules applicable in relations between
individuals is included in any event among the bodies against which the
provisions of a directive capable of having direct effect may be relied upon”
note: At some point the court decided this was not a cumulative test
(compulman case) and you need to only satisfy some of these (see handout)
Article 10 EC
• The court quickly read into this and in Case 14/83 Von Colson - the duty of
interpretation / obligation of good faith in Article 10 EC also applies to
national courts
• i.e. they have to apply national law in light of the community law
whenever there is a mismatch of the 2. (we should be familiar with
this as it is similar to s3. HRA 1988)
• Here, the court gave a broad nothing to the doctrine of direct effect
(or is it indirect?)
Note: there were debates in Marleasing; what does the phrase as far as possible
mean?
There are 2 sensible ways to deal with incidental effect; say everything about it
or say nothing about it. Just remember that this year we don’t need to know
much about it. It’s probably one of the most recent doctrines created by the ECJ
to circumvent the no HDE rule.
The directive in question basically says the contract b/w us is invalid however it
does not substitute a particular term in the directive into our legal relationship. It
just prevents me from relying on this contract which would otherwise be
enforceable in national law. It has merely excluded the application of a number
of terms in our contract.
[50] “Whilst it is true, as observed by the Italian and Danish Governments, that a
directive cannot of itself impose obligations on an individual and cannot
therefore be relied on as such against an individual (… Faccini Dori …), that
case-law does not apply where non-compliance with Article 8 or Article 9 of
Directive 83/189, which constitutes a substantial procedural defect, renders a
technical regulation adopted in breach of either of those articles inapplicable.”
• German case; a young worker was being discriminated because of his age.
Again, the courts based its reasoning on Mangold and said the directive
contains a general principle of community law and you have to allow the
principle to apply in horizontal situations even if you haven’t properly
applied the community directive
• the rule of law infringed must have been intended to confer rights on
individuals
• the court uses the grave and manifest test. (member state has
gravely and manisfestly disregarded this)
• there must be a direct causal link (there must be causation) between the
obligation resting on the State and the damage sustained by the injured
party
• first 2 are for the ECJ to ascertain and typically causation is for the
national court to ascertain
• Lack of clarity