EU LAW NOTES

 WEEK 3

PRELIMINARY RULING

-important because it facilitated the creation of fundamental concept of EU law – principles of

application + key principles of substantive law

-CJEU has the role of assisting the national courts in the interpretation of the EU law

* is not an appeal from judgements of national courts; in fact, you have a case in a national
court, an issue of interpretation of EU law arises, then the national court SUSPENDS the case
and sends a reference to CJEU asking for clarification as per a fair final judgement

* only CJEU has the jurisdiction to deal with references

What references may CJEU deal with? – art. 267 TFEU

- Interpretation of the Treaties (includes all sources of primary law)

- Interpretation AND validity of secondary legislation (regulations and directives)
- May also deal with interpretation on soft law, international agreements, judgements of CJEU
*IT IS NOT the job of CJEU to interpret national (domestic) law matters

Who can refer?

-any ‘court or tribunal’ – C-54/96 Dorsch Consult test:

- Established by law
- Permanent
- Compulsory jurisdiction
- Procedure inter partes (party exist – claimants and defendants)
- Applies the rule of law
- Independent
 For example, competition authority did not fall into these criteria

RIGHT / OBLIGATION to refer – pursuant to art. 267:

 The courts from which there is no further remedy (last instance courts eg Supreme Court) –
OBLIGATION to refer; other courts – RIGHT to refer
 Courts of last instance are released from obligation ONLY WHEN doctrine of acte claire
(interpretation raises no doubts) applies – case 283/81 CILFIT

Judgements are binding; however, they only give national courts the TOOLS to handle the case
further, but not an explicit answer (that’s the nat. courts’ job)

One must not overestimate CJEU’s role. For ex, if someone raises an issue that a domestic
enforcement is contrary to the EU law, it will only deemed that way if it’s disproportionate (we will
see proportionality test when we’ll reach free movement of goods and persons)
  WEEK 4

LECTURE 3 – DIRECT AND INDIRECT EFFECT

Piece of revision: action to enforce EU rights – Lecture 2

ENFORCEMENT DOCTRINES:
1. Primacy
2. Direct effect – provision is legally binding and clear about application of specific right
3. Indirect effect
4. State liability

It’s fine if feeling lost at this moment, next week we shall (incropi) a checklist

EU Legal Order

CJ ruled several times that it is a unique, new legal order (first time in 1963)

*ALL THESE PRINCIPLES ARE DRIVEN BY JURISPRUDENCE*

PRIMACY
-case law of CJ
-declaration annexed to TEU and TFEU (not legally binding)
-almost all MS have constitutions governing relations between EU and national law
-primacy initially accepted, but only over acts of parliament rather over national constitutions

Declaration No 17:
“The Conference recalls that, in accordance with the well settled case law of the Court of Justice of
the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have
primacy over the law of the Member States, under the conditions laid down by the said case law”.

*case 6/64 Flaminio Costa v ENEL

-nationalization of energy sector in Italy
-shareholder refused to pay bills as the company he had shares in was nationalized and, on the basis
that he lost money, he decided to make his own vendetta and not pay the bills
-> it was held that …treaty is an independent source of law… having a special and original nature.
And that cannot be overridden by domestic legal provisions HOWEVER FRAMES (that includes the
constitution too).
-> dif approaches between common and civil: UK had to enact domestic law as to apply the EU law
(eg Human Rights Act 1995).. while a civil law state applies EU law implicitly (the constitution
explains how international law applies)

*case 106/77 Simmenthal II Court of Justice

-company argued that the tax that they had to pay is in breach of EU law (national law breaches EU
law) – what national courts must do in such a situation?? The judge must put aside the national law
and apply the EU law.
*C-573/17 Poplawski Court of Justice clarified that this applies only to provisions of EU law which
have direct effect
-> a lot of disputes between businesses and tax authorities

All binding EU law benefit of primacy and extends to all provisions of national law.
*C-399/11 Melloni
The doctrine applies not only to domestic legislative measures but also to ADMINISTRATIVE
decisions.

Supremacy of EU Law

UK wasn’t so reluctant as for European Communities Act

But we can see explamples of conservatism and surprising liberalism, like Germany or Poland –
exactly opposed to Estonian government’s attitude, who happily complied with everything
Poland case.. collision for the sake of audience.. after which Commission suspended a lot of funds for
them
Still friction between national CONSTITUTIONS and EU Law

DIRECT EFFECT

Direct Applicability to be distinguished from Direct Effect!!!

Direct Applicability is a provision that is automatically received into domestic law

Treaty and Regulations are DIRECTLY applicable
Directives are NOT DIRRECTLY applicable, as they have to be transposed

Direct Effects = national court can enforce EU law and give rights to individuals

DIRECT EFFECT OF TREATIES

A. Conditions for direct effect of Treaty provisions

*Case 26/62 Van Gen den Loos
-company transporting chemicals from Netherlands to Germany
-tax authority wants tariff for custom duties
-vertical dispute

1)the provision is clear and precise

2)the provision is unconditional -> MS is given no discretion as to right/obligation in question
3) the provision is not dependent on further action by MS

B. Vertical and horizontal direct effect

Vertical: between individual and the state
Horizontal: *case 43/75 Defrenne v Sabena – case brought in Belgium by a air hostess against a
Belgian airline company for breach of Article 157 TFEU (principle of equal pay between men and
women)
 Treaty provisions confer rights to individuals to exercise them both against a MS and against
another individual

DIRECT EFFECT OF REGULATIONS

A. Direct effect conditions for REGULATIONS:

Van Gen den Loos 3 stage test
B. Vertical and horizontal direct effect
-can produce vertical direct effect
-can produce horizontal (*)

Summary: regulations can produce vertical direct effect and horizontal direct effect: right to
individuals exercisable against the State or another individual

DIRECT EFFECT OF DIRECTIVES

-problem with directives: need to be transposed first

EU adopts a directive  MS have a deadline to turn DIRECTIVE into NATIONAL LAW  Then,
individuals can rely on NATIONAL LAW

-What happens if the deadline expires and MS have not enforced the EU law yet? How can
individuals enforce their rights in the directives?

A. Conditions for direct effect of directives:

*case 41/74 Van Duyn v. Home Office
1) the relevant provision is clear and precise
2) unconditional
3) the time for implementation has expired (case 148/78 Criminal Proceeding against Tullio Ratti)

B. Directives can produce vertical direct effect

-individual and the State

C. Directives cannot produce horizontal direct effect

between two individuals, rights in directives cannot be enforced (you cannot penalize an individual
because the State hasn’t transposed the directive into national law) -> this is detrimental to the
claimant who is left with no remedy under the principle of direct effect

D. Thus it is crucial to determine if dispute concerning a directive is against the State or another
individual (IF IT HAS VERTICAL OR HORIZONTAL d.e.)
*188/89 Foster v British Gas – is it the ‘State or an emanation of the State’ – if the company reflects
a public service; test:
1) provides a public service pursuant to a statutory duty
2) is under state control
3) has special powers
Relevant steps

Check the conditions for direct effect of directives (Van Duyn):

1. Is the provision clear & precise?

2. Is it unconditional?

3 Has the time for implementing the Directive expired (Ratti)?

Then, check the type of dispute – vertical or horizontal

4. If the dispute is against the State (vertical): directives can be enforced because they are capable of
vertical direct effect

5. If the dispute is against a private body, check if such a body may be the ‘State or an emanation of
the State’ under the Foster test. If the requirements in Foster are met, the dispute will be vertical the
rights in the directive will be enforceable (as in 4)

6. If the dispute is against a private body (horizontal), directives are not capable of horizontal direct
effect (=> here, the claimant will be left with no remedy under direct effect)

INDIRECT EFFECT

-principle in *Case 14/83 Von Colson Kamann v. Land Nordrhein – Westalen:

‘National courts are required to interpret their national law in the light of the wording and the
purpose of a directive’

The principle of indirect effect applies:

-to vertical disputes

-to horizontal scenarios – Case C-106/89 Marleasing

What: a comparison between the wording of a directive and the wording of the relevant domestic
law provisions (Von Colson)
Who: to be effected by national courts where litigation is happening

When: arises from the date by which the directive SHOULD HAVE BEEN transposed (Case C212/04
Adeneler v ELOG)
Limits: national law must be interpreted as far as possible in the light of the directive (*Case C-
334/92 Wagner Miret):
1) if the relevant provisions of domestic law are clear and unambiguous in departing from what a
directive states, the principle of indirect effect does not allow the courts to MODIFY THE MEANING
OF DOMESTIC LAW
2) if the relevant provisions of domestic law are NOT clear, the principle of indirect effect ALLOWS
the court to interpret in the light of directives without smashing the constitutional principles of the
state
 THE INDIVIDUALLY MADE NOTES FOR THIS WEEK

Supremacy of EU law. Direct and Indirect Effect

1) Primacy

Unique legal order – evolved from a branch of Public International Law to its autonomous form it has
today

Key principles of:

 Resolution between national law of MSs and EU law

 Enforcement of EU laW
 Were developed by judgements of CJEU
 Origins: judgements of CJEU
 Codification: declaration annexed to TEU & TFEU = a MS, upon adherence, agrees to yield
part of its power especially governing the international law sector to the EU
*creation of a constitution containing this principle was discussed in the early 2000s but it
was shut down through referendum in France, then in Netherlands. Moreover, it is nowhere
to be found in the main bodies of the treaties; it was annexed as a declaration with the
Treaty of Lisbon
 Domestic law: almost all MS have provisions within their Constitutions to determine
relations between EU and national law
 Reaction: primacy accepted but mostly through acts or parliament AND NOT through
constitutional codes

 Costa v ENEL – nationalization of energy company was in breach of EU law

On the principle, the court ruled:
- National law cannot override eu law; it has a special and original nature that would
otherwise be deprived of
 Internationale Handelsgesellschaft: EU law prevails even against constitution (started judicial
dialogue, although there are still tensiouns)
 Simmenthal II: national court has the obligation to set aside national law and give rights to
the parties concerned applying EU law
 Constanzo v. Comune di Milano: same aspect but specifically applying for administrative/tax
authorities
 ALSO Erich Ciola v. Land Vararlberg: primacy applied to ‘normal’ law AND to administrative
decisions
2) Direct effect

It all started with Van Gend en Loos: eu law is

DIRECTLY EFFECTIVE – capable of being invoked
by an individual against another party before a
domestic court

-
A Treaty can produce direct effect
-
Art. 12 EEC Treaty: ‘according to
the spirit, the general scheme and
the wording of the Treaty, Article
12 must be interpreted as
producing direct effects and
creating individual rights which
national courts must protect’
 Defrenne v Sabena: discrimination
between men and women within the
labour market (female paid less than
men colleagues) treaties can impose
obligations on contracts made by INDIVIDUALS WITH EACH OTHER => HORIZONTAL direct
effect
The provision must meet certain criteria => VAN GEND EN LOOS TEST:

- Clear
- Precise
- Unambiguous
2.1)D.E. of regulations
- They are directly APPLICABLE => they can have both VERTICAL and HORIZONTAL d.e.
 Antonio Munoz case
2.2)D.E. of directives
- A bit more complicated – they are NOT directly APPLICABLE – they need first to be
transposed into national legislation

 Van Duyn v Home Office: directive can produce direct effect

 Criminal Proceedings against Tullio Ratti: BUT transposition period must have passed!!

 Paola Faccini Dori v. Recreb Srl: no HORIZONTAL d.e. for directives

- That is because it only concerns MSs to hold up to their responsibility for their citizens to
transpose this type of EU provision which contains their rights
 ‘emanation of state’ – Marshall v. Southampton and South-West Hampshire Area Health
Authority – Foster v. British Gas

3) Indirect effect

= national courts to interpret domestic legislation in the light of EU legislation

 Especially in cases involving directives – Marleasing

- Fills the gap between national and EU law
 Von Colson – national law must be interpreted in the light of the wording and purpose of the
directive => national courts must contribute to proper implementation
 Comm v. The Netherlands – interpretation (good use of the doctrine of indirect effect) may
not replace efforts of implementation on the part of the MS
- Doctrine must also apply for soft law:
 Grimaldi – recommendations
 Maria Pupino – framework decisions (between T. of Amsterdam and T. of Lisbon – 1992 and
2009 – key instruments in EU criminal law – they could not produce direct effect AT ALL –
example of such decision, the one relating to EU arrest warrants, found in the case of Julian
Assange)

SOME NOTES FROM TEXTBOOK – COSTA

 Monist/dualist distinction: ‘Primarily it will depend on the terms on which international law
has been incorporated into domestic law, which in turn will depend on whether the state is
monist or dualist in its approach to international law. If monist, international law will be
received automatically into national law from the moment of its ratification, without the
need for further measures of incorporation. If dualist, international law will not become
binding internally, as part of domestic law, until it is incorporated by a domestic statute. But
whether received automatically, by process of ‘adoption’, or incorporated by statute, by way
of ‘transformation’, the incorporation of international law does not itself settle the question
of priorities.’
 Factortame – Union law requires national courts not only to ‘disapply’ the offending national
law but also to supply a remedy which is not available under national law
 If a national law is ‘inapplicable’ because of its incompatibility with Union law does not,
however, result in its annulment, or even prevent its application in situations falling outside
the scope of Union law – IN.CO.GE.‘90
~
 The Three Pillars
The pillars consist of the European Communities, Common Foreign and Security Policy and
Cooperation in Justice and Home affairs. These pillars are seen as the three policy areas.
~

Indirect effect

- Principle of consistent interpretation

- Established shorty after Marshall, in Von Colson + Harz v Deutsche Tradax GmbH
- CJEU – ingenious solution: Art. 4(3)TEU – requires states to ‘take appropriate measures’
to ensure fulfilment of their Union obligations
 Marleasing explored first the doctrine in depth – reiterated Von Colson +
- Established that i.e. applies whether national legislation was adopted prior of after the
directive (for the purpose of it or not)
- Also added that there could be no legislation passed to transpose the directive -> nat
court should interpret the closest national leg. to the given case in the light of EU law
 Limits:
-natural language (contra legum principle)
-non-imposition of criminal sanctions
-non-retroactivity
 WEEK 5

LECTURE 5

*READ CASE!!! MAKES THE DISTINCTION BETWEEN GRADES

These lectures set the foundation of EU Law. NEXT lectures will be for goods and free movement

*THERE IS NO HORIZONTAL DIRECT EFFECT

 Direct effect – claim based on EU Law to be enforced in a national court to give rise to
citizens’ rights
 Indirect effect – claim is based on national law – interpret it IN THE LIGHT OF the EU L aw
 If the latter is not acceptable either, then you sue the state for damages  STATE LIABILITY

First case for state liability, the Italian case, arose because EU Law was too vague and there was no
national law to interpret -> then what?

Explosion of directive on employment law in the time when Francovich was ruled – issue with
protection of workers in case of insolvency

Who should pay employees in such a case? -> discretion for states -3 options: 1. State should pay 2.
Combined system 3. Business should pay

Claimants could not receive money from business as it was bankrupt -> let’s sue Italy for not
transposing the directive – claimed for monetary damages

Test in Francovich was modified in Brasserie du Pêcheur and in Factortame and followed since

State liability test:

 EU legal act confers rights

 Breach is sufficiently serious – manifest and grave; more discretion state has, more likely
that breach will not succeed
 Causal link between the breach and damage

Kobler – what if a last instance court misapplies EU Law? And then doesn’t want to send a reference

The Austrian court sent reference -> CJ sent them back a shitload of jurisprudence for them to apply
the EU Law by themselves -> they have done it in breach with EU Law

*probably, when the CJ itself is wrong, another judge could be requested – RESEARCH ON THAT

Direct effect of:

 Treaties – Van Gend en Loos test required; Defrenne

 Regulations – Van Gend en Loos test required; can produce both horizontal and vertical
effect
  Directives – Van Duyn test; VERTICAL – directives can be enforced in individual v
state/emanation of the state – Foster v British Gas test; directives DO NOT HAVE
HORIZONTAL DIRECT EFFECT – Marshall case

Indirect effect – national law interpreted in the light of EU Law – rely on in only AFTER the date by
which a directive should have been transposed

*NEED A LOSS FOR STATE LIABILITY

 WEEK 7

INTROD. ON INTERNAL MAKET

 Move from protectionism to globalisation

- 1918 – 1939: era of heavy protectionism in trade
- Trade in goods – high export and import tariffs
- 1945 onwards: global (World Trade Organization) and regional liberalisation of
international trade
- Reduction or abolition of tariff and other obstacles on trade
*what was opted for was a principle called COMPARATIVE ADVANTAGE

*it’s easier to reduce tariffs on industrial products than on agricultural (meat, crops)
products, which are still subject to taxes

- The four liberties of common market, what was Europe initially – five actually because
rights of workers and right of establishment are treated separatelly now
- We will only be assessed on FREE MOV. OF GOOD AND FREE MOV. OF PERSONS
(WORKERS)
White Paper on Internal Market 1985
 - 1985: Eu. Commission published a White Paper on Internal Market (which did not
happen overnight); abolishion on trade customs was rather a long process, which
finalized around 1960s
- Proposed 300 new directives on the 4 freedoms + flanking policies (environmental
protection, employment, consumer protection, public procurement)
- UK – a strong supporter of the program of that time – Lord Cockfield (UK representant
member of the Eu. Commission) was one of the masterminds; the gov. of Margaret
Tatcher was pushing hard on greater trade union

INTROD. ON FREE MOVEMENT OF GOODS

 Sources of EU law:
- Art. 28, 30, 34, 35, 36 TFEU
- Secondary legislation harmonising technical standards
- Case law of the CJEU

 Definition of goods:
- No statuatory def.
- Def. developed in CJEU’s case 7/68 Commission v Italy (questioned products like
paintings, works of art) -> straightforward test:
o May be valued money
o May be subject to commercial transactions
- Covers all products, particularly industrial and agricultural products

Any other levies,

like unloading
charge etc are
also strily
prohibited

VAT stays the

same between
member states

Limits on how
many products
one can
import/exports
are also
prohibited

All trading rules that hinder trade, like technical barriers on trade also banned

 External dimensions of free movement of goods

 - To the outside worls, EU is one unity – a customs union (common customs procedures
customs tariff)
- Rules on free mov. of goods apply the same for products originating from MSs and to
products coming from third countries that are in circulation in MSs (Art. 28 TFEU)
- Products from third countries are subject to customs formalities (and potentially
customs duties) at the entry point to the EU

Article 30 TFEU: ‘Customs duties on imports and exports and charges having equivalent effect shall
be prohibited between Member States. This prohibitions shall also apply to customs duties of a fiscal
nature.’

Article 34 TFEU: ‘Quantitative restrictions on IMports and all measures having equivalent effect shall
be prohibited between Member States’ – for instance, quotas or balance on imput?

Article 35 TFEU: ‘Quantitative restrictions on EXports and all measures having equivalent effect shall
be prohibited between Member States’ – under some circumstanes, MSs may have a reason for
imposing these

Article 36 TFEU: ‘The provisions of Art. 34 and 35 shall not preclude prohibitions or restrictions on
imports, exports or goods in transit justified on grounds of public morality, public policy or public
security; the protection of health of life of humans, animals and plants; the protection of national
treasures possessing artistic, historic or archaeological value; or the protection of industrial and
commercial property. Such prohibitions or restrictions shall not, however, constitute a means of
arbitrary discrimination or a disguised restriction on trade between Member States’

 WEEK 8

NOTES ON LECTURE 8

Dassonville – just a few years after customs duties were abolishes

- All trading rules enacted by Member States which are capable of hindering, directly or
indirectly, actually or potentially, intra-Community trade are to be considered as measures
having an effect equivalent to quantitative restrictions
- In the absence of a Community system guaranteeing for consumers the authenticity of a
product’s designation of origin, if a Member State takes measures to prevent unfair
practices, it is however subject to the condition that these measures should be reasonable
and that the means of proof required should not act as a hindrance to trade between
Member States and should, in consequences, be accessible to all Community nationals

Cassin de Dijon – during the 90s, just when the eu was busy implementing internal market
provisions

- Reference from a court in western Germany – whether art. 34 applied to dual burden rules
- Under the German law liqueurs had to have at least 25 % of alcohol, however the French
liqueur Cassis de Dijon ‘only’ had 15-20 % of alcohol
- They needed either to stop exporting, or to make a specific niche just for trade with
Germany – not economically viable (imagine complying with 10 countries’ rules :/)
- No trace of discrimination bcs the german law applied equally domestically and externally
- But it was ruled that: Obstacles to movement within the Community resulting from
disparities between the national laws relating to the marketing of the products in question
must be accepted in so far as those provisions may be recognized as being necessary in
order to satisfy mandatory requirements relating in particular to the effectiveness of fiscal
supervision, the protection of public health, the fairness of commercial transactions and
the defense of the consumer.
- No other way to find balance than making internal rules proportionate
- Commission encouraging individuals: go sue, cause burden of proof will fall on national
courts – court’s major contribution to free movement of goods
- There is no valid reason why, provided that they have been lawfully produced and
marketed in one of the Member States, alcoholic beverages should not be introduced into
any other Member State; the sale of such products may not be subject to a legal
prohibition on the marketing of beverages with an alcohol content lower than the limit set
by the national rules
- CJEU ruled that: art. 34 applied both to distinctly and indistinctly applicable measures

*ANSWER TO THE TEST: B

*Previously, the burden of proof was on

the MSs, but then it fell on traders to
trigger art. 34 – unfair?

PHYSICAL OBSTACLES TO TRADE

-what happens if it falls in the grey zone

in between obstacle reated by individuals
(rioting for example) and simply
competition

 WEEK 9

FREE MOVEMENT OF PERSONS

Three elements:
1) Right to move to another MS and to live there (includes right to remain)
2) Right to access the job market
3) Ancillary rights
The citizenship rights are broad, underpinning the system – they diminish the economic
nexus initially stated in the treaties
The FMP rights are set out in the art. 45 (workers), 49 (establishment) and 56 (services)
TFEU + Union legislation

 Questions about the appropriate scope of the rights are dealt with testing the level of
integration of an immigrant into society in the host MS
 Citizens & citizens AND legal persons; CITIZENSHIP -> ART. 21 TFEU – ‘every
person holding the nationality of a MS’

First question – who benefits? – two main themes running through the jurisprudence:
- Nationality
- Migration v internal situation
+ economic nexus, which is rephrased differently in each article
*distinction of treatment between economically self-sufficient individuals and those who
are not remains questionable

 MSs cannot challenge another MS’s decision about refusing or restricting OR

conferring citizenship/nationality
*ancillary = providing necessary support to the primary activities or operation of an
organization, system, etc.