applicability; • Direct effect of primary and secondary legislation; • Incidental (or ‘Triangular’) Direct Effect; • Indirect Effect; • State Liability. Direct Effect and Direct Applicability
• Direct Applicability - enables a provision of EU
law to become an integral part of national (or domestic or municipal) law of a Member State without the need for further legislative enactment within that Member State. • Direct Effect - rights under EU Law that any natural or juristic person may enforce in his national courts. Pre-requisites for Direct Effect • Two basic pre-requisites have to be satisfied before any legislative provision may begin to be recognised as directly effective, viz: • the provision must be recognised as being incorporated, or deemed to be incorporated, into the English legal system; and • the provision must be deemed appropriate to confer rights on natural or juristic persons. Direct Effect of Treaty Provisions • Case 26/62, van Gend en Loos. • Van Gend “constitute[d] a new legal order of international law”. • Van Gend established direct effect and implied supremacy of EU Law. • Van Gend was a case on vertical direct effect. Criteria for Direct Effect of a Treaty Provision
• the provision in question must have been
sufficiently clear and precise for judicial application; • it must have established an unconditional obligation; and • the obligation must not have been dependent on further action being taken by the Community or national authorities. Post-van Gend Developments • Case 57/65, Alfons Lutticke – ECJ implied that direct effect would apply to a positive obligation; • A-G Mayras in Case 2/74, Reyners, laid down clearer criteria as to what constituted direct effect of a Treaty provision; • ‘Unconditional’ and ‘sufficiently precise’ required elaboration. ‘Unconditional’ and ‘Sufficiently Precise’
• ‘Unconditional’ – Case 236/92 – but note the
extension & qualification in Case 41/74, van Duyn. • Sufficiently clear and precise – Case 43/75, Defrenne v Sabena. • Case 43/75 also established horizontal direct effect of a Treaty provision. Direct Effect of 2 Legislation 0
• Regulations – still require to be unconditional
and sufficiently precise (direct applicability is insufficient) – though less emphasis on these criteria cf Directives: Case C-253/00, Munoz; • Regulations may be vertically and horizontally directly effective; • Decisions: Case 9/70, Franz Grad – vertically directly effective. (HDE of Decisions??). Direct Effect of Directives • Directives are addressed to Member States – so why should they confer rights on individuals? • 3 policy reasons for conferring direct effect on some Directives. • Where a Directive is directly effective it is vertically directly effective, only: HDE does NOT apply to Directives: Case 152/84, Marshall. Policy Reasons for VDE of a Directive • “It would be incompatible with the binding effect attributed to a Directive by Article[288 TFEU]to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned”; • The ‘useful effect’ of a Directive would be ‘weakened if individuals were prevented from relying on it before their national courts’; and • “A Member State which has not adopted the implementing measures required by the Directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails”. Could / should / or are directives capable of being HDE? • (Failed) arguments for HDE of Directives put forward by A-Gs in: – Case 271/91, Marshall II (A-G van Gerven); – Case C-91/92, Faccini Dori (A-G Lenz); – Case C-316/93, Vaneetveld (A-G Jacobs). • Incidental (or ‘Triangular’) HDE HAS been established: Cases C-201/02, Wells; C-152- 154/07, Arcor; and C-226/97, Lemmens, e.g. Criteria for VDE of a Directive • the relevant provisions of the Directive must be unconditional, sufficiently clear and precise and, of course, capable of creating rights for individuals; • the time-limit for implementing the Directive must have expired without the Directive, or the relevant part of it, having been correctly and completely implemented into the law of the Member State in question; and • the action must be against the State - or at least an organ or an emanation of the State. The State and its Manifestations • Case 152/84, Marshall – a health authority; • Case 222/84, Johnston v RUC – a Chief Constable; • Case C-188/89, Foster v British Gas: – A body responsible for providing a public service; – Under the control of the State; and having – ‘special powers’. Indirect Effect • Developed because of the limitations on the direct effect of Directives and the desire to provide individuals with effective judicial protection – i.e., ‘do justice’. • Cf. Case 14/83, von Colson with Case 80/86, Kolpinghuis v Nijmegen; • Cases C-106/89, Marleasing (5*) and C- 334/92, Wagner Miret. State Liability • Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy: – the directive involves the conferring of rights on individuals. – The breach must be ‘sufficiently serious’ (as modified by Factortame (No.3)); and – There must be a causal link between the failure by the member state to fulfil its obligations and the damage suffered by individuals.