EU law Lecture 3: Supremacy and Brexit:

Q) How DE and supremacy are related

- Vertical- state v individual- direct relationship

- Horizontal- individuals

NO HORIZONTAL DIRECT EFFECT OF DIRECTIVES!

- Does X (Regulations, directives and decisions) have DE or not?

- Does X have vertical (yes) or horizontal (no) DE?

- EU v MS (adding obligation but gives rights to people)

(started as an economic state and then grew)

- Marshall- first time a court said no to horizontal effect of directives (because

individuals have no influence over the MS implementation of a directive it would not
be fair to impose obligations on them. MS job to give obligation.
- Would you want more rights or impose less obligations on MS?

Case: Marshall 1986:

- Under equal treatment directive, claimant claimed unfair dismissal on the grounds of
age discrimination.
- Claimed against her employer, the Southampton area health authority.
- Mrs Marshall claimed a right under equal treatment directive because she thought
she had the rights not be dismissed for a certain age.
- It’s a horizontal case
- Denied on the grounds that the directive did not have DE against herself and her
employer (horizontal relationship).
- ‘it follows that a directive may not of itself impose an obligation not of itself impose
an obligation on an individual’.
- The SAHA its related to the NHS/ ministry of health they are MS which makes it’s a
vertical relationship.

+ Horizontal DE of directives:

- It is clear that there is no horizontal DE of directives but two ways of getting around
it the first is to consider the relationship not a horizontal one but rather vertically, by
considering one party an emanation of the state. (If you find a party working for the
govt it is a vertical effect.
- The second is known as indirect, incidental effect (less direct).
Case: Foster v British Gas 1990:

- An emanation of the state is defined as a body which performs state responsibilities

and represents the state but is not the state itself.
- If one party is considered to be an emanation of the state, then the relationship is no
longer horizontal but vertical.

- Test to determine this (emanation of the state):

1) Pursuant to a measure adapted by the state.

2) Provides public services
3) Under the control of the state
4) Has special powers

Farrell 2017: clarified the test:

- Much need clarification of foster test not cumulative conditions.

Farrell Test:

1) Body is governed by public law, or

2) Body is subject to the authority or control of a public body, or
3) Body performs a public interest task on the basis of special powers

+ Indirect effect:

- this is when a authority is private helps get around it when its not a MS. Created that
national courts had to comply to EU law as far as possible: if you have no people to
have obligation to be forces on you have no individuals with more rights.

- Without horizontal of IE was created an requirement that national courts must

comply with obligations in EU law as far as possible.

- Gets around not having horizontal effect of directives

- Confirmed in Von Colson and Mar leasing

- Not breaking the rule because Marshall still applies.

Case: Von Colson 1984:

- Interpret and apply the legislation adopted for the implementation of the directive in
conformity with the requirements of community law.
- First place to apply IE.
Case: Marleasing 1990:

- It is required to do so, as far as possible, in the light of the wording and purpose of
the directive.

+ Incidental Effect:

- Individuals can claim rights under the directive and maybe able to influence the case
outcome.
- Does not create new rights or obligations for the parties involved.
- Gets around not having horizontal DE of directives.
- Confirmed in CIA security and unilever Italia.

+ Problems with indirect, incidental effect:

- Both IE cases have imposed an interpretive obligation on MS.

- If there is no horizontal DE of directives, then the directive provision may have
indirect effect.
- What is the point of denying horizontal DE of directives?

+ Pros and Cons of H DE of directives:

Pros: Cons:

- More rights to individuals - More obligations of individuals

parties

- Indirect/ incidental effect exists - Indirect/ incidental effect is legally

anyway uncertainty

- Foster test exists anyway for - Foster test unclear to an extent

emanation of the state

- Effect utile would be eroded if not - Intrusion on MS autonomy

+ Horizontal effect:

- Yes treaties- Defenne v Sabena

+ Supremacy:

- Definition is not found in EU treaties

- Another doctrine developed by the CJEU like DE
- Supremacy states that the EU law must prevail over national law which makes way
for the enforcement of EU law.
- For similar reasons, costa v ENEL is another very important case.
- EU law must prevail over national law.

Case: Costa v ENEL 1964:

- Italian claimant opposed nationalisation of electricity sector

- Argued this violated Italian constitution and also EU law on distortion of the market
- Must allow supremacy of EU law over national law in order to encourage
effectiveness of EU law generally.
- ‘A permeant intention of their sovereign rights’.

+ International Handelsy sesllschaft 1970: C-11/ 70:

- In the event of any conflict with EU law/ supremacy states that EU law must prevail.
- This is irrespective of whether it is conflicting with fundamental rights or
constitutional principles of the national MS.
- ‘cannot be affected by allegations that it runs counter to either fundamental rights’.

+ Simmenthal C-106/77 1978:

- A French beef importer had to pay a fee for inspection when it imported its beef into
Italy.
- Argued that Italian law was false before EU law came into force so it prevailed.
- Under principle of supremacy, this was irrelevant and EU law remained supreme.
- ‘whether prior to subsequent to the community rule’.

+ The UK’s take on supremacy:

- Supremacy in the EU faces difficulties with the concept of parliamentary sovereignty.

Factortame accepted that EU law had supremacy over national law.
- UK has accepted supremacy but believes it comes from its own constitutional law.
- To what extent did issues surrounding supremacy leas to the Brexit vote?

+ DE’s relationship with supremacy:

- DE would not be effective without the principle be effective without the principle of
supremacy.
- The principle of supremacy could not exist without the doctrine of DE.
 - If EU law is to be supreme over national law and be enforced, then EU law needs to
be directly effective first.

+ Brexit and article 50 TEU:

- Withdrawing from the EU was introduced by the Lisbon treaty in article 50 TEU.
- Withdrawal was always possible in international law and it has yet to happen.
- Britain is the first MS to trigger article 50 TEU for withdrawal.
- Political meaning of including withdrawal in the Lisbon treaty was symbolic.

+ Article 50:

- Shall notify the European council of its intention.

- The union shall negotiate and conclude an agreement with that state, setting out
arrangements for its withdrawal, taking account of the frame work for its future
relationship with the union.
- Two years after the notification it should be done within these time period.

+ Steps of withdrawal:

- Notification by existing MS
- Adoption of negotiating guidelines

+ Who must notify withdrawal?

- MS must take positive action to withdraw.

- EU referendum in the UK and its result is not enough to notify of withdrawal.
- May notified of intention to withdrew on the 29th March 2019
- The EU commission has set up a task force to negotiate the UK’s withdrawal.
- The negotiate agreement must be agreed upon by other member states.

+ What is to be negotiated?

- MS must agree because it still affects them

- Article 50 (2) TEU states negotiations only need to take account of the future.
- Unclear whether you can change your mind and rescind withdrawal notification
- Unclear as to whether it necessitates discussing how the future relationship with the
EU will look.

+ When will withdrawal be completed?

- Article 50 (3) TEU states that once notified the process should be two years.
- It also states that should they need more time you can agree to this unanimously.
- The UK is currently struggling and it is highly likely that they will need more than 2
years but if even one member state disagrees then they could be left existing
without a deal.