EU Law Lecture 2 Notes: Direct Effect:

Q) What is DE and how does it link to supremacy? You cannot talk about supremacy without
mentioning DE.

- One of the ways that the EU becomes effective- Supremacy.

- How does it become effective in each member state?
- EU v the nation member state- Domestic
- They had there own domestic systems before EU law.
- Economics v Political/ social
- EU v domestic member states
- EU law would be ineffective without these aspects e.g. if not in the EU state they
don’t have to follow it America example. The 28 states need to as they have signed a
treaty that being the treaty of Lisbon.
- Constitutional traditions and how do we incorporate them
- Secondary instruments of the EU law (regulations, decisions and directives)
- Lisbon treaty- TEU and TFEU

+ Direct effect is the doctrine of the DR allows EU law to confer rights on individuals that can
be relied upon (concerning the EU citizens) giving them rights and enjoying them (also have
rights through domestic law) and obligations on member states that must be enforced.
- (If you are getting more rights the member states must look after them). The
member states are appeared to be burdened as it is having to give up part of its
governance to look after the right. The individual is a passive receiver and the
member states are an active giver.
- Makes EU effective
- Supremacy- the principle of supremacy states that EU law is supreme over domestic
law. If ever a conflict, then EU law wins. If you did not have it then the member
states would ignore the EU law and say though we signed it, we prefer domestic law.
This is done to make it more effective.
- Brexit- Britain’s exit from the EU via article 50 TEU, withdrawal from the EU as a MS.
- TEU- more establish and procedure stuff
- TFEU- more substantial

+ Constitutional traditions:

Monist state: Dualistic state:

- National law (EU laws are directly - UK example

incorporated) Example- Holland
- For a piece of international - National law passed allowing
legislation to apply they must implementation of EU law (act of
accept it and when they sign it parliament)
the treaties are incorporated
becoming nation law.
- If you are not a EU it has be
 passed by parliament
- European community Act 1972
makes this step
- Parliament must say they allow
the EU laws to be incorporated
- National law (EU law enforceable
because nation law allows for it)

- DE not found in EU treaties

- The COJ of the EU (CJEU) developed this doctrine
- Van Gend En Loos is one of the most important cases in EU law for this reason
without it there would be no enforcement of the EU law and no ability to reply on
the rights under the EU law.
- DE does also effect members and MS.

Case 1: Van Gend En Loos 1963

- The claimant had been charged an import duty. This violated article 12 TEU (not
article 38 TFEU)- the free movement of goods.
- The Dutch court questioned whether that article had direct application within its
own national legal system.
- The court decided that it did have DE.
- ‘new legal order of international law- limited their sovereign rights’.
- Domestic situation in this case
- The EU does not get involved
- DE has effective in the national legal systems.

+ Enforcement of the EU law:

- Make EU effective
- To enforce it
- Enforcement is at the investigation of private parties who are seeking to invoke
provisions of the EU law in their litigation.
- It is not just to courts which perform a judicial role but also national courts.
- The Van Gend case was considered by the CJEU by the national court referring a
question of interpretation of the treaties to the CJEU under article 267 TFEU.
- ‘a clear and unconditional prohibition not qualified by any reservation’.

+ Condition for DE:

- The test came from Van Gend and was strict (test of justiciability):
1) Clear and unconditional
2) Prohibition (not allowed to do something)
3) Not qualified by a reservation
- DE may exist to make provisions enforceable
+ Modern test of justiciability:
 - Soon it became obvious that Van Gend criteria for DE was too strict.
- Dropped the requirement that it had to be a prohibition (negative obligation).
1. Is the provision sufficiently clear, precise and unambiguous? (yes answer)
2. Is the provision unconditional? (yes) Is it dependant on further implementing
measures? (a condition) (no) from the Van Gend criteria.

+ The scope of applicability of DE?

- Main source of EU are the EU treaties. Treaty of the EU and TFEU under the Lisbon
treaty.
- Other sources of the EU law (secondary legislation) determined by article 288 TFEU
- Article 288 TFEU- to exercise the unions competences, the institutions shall adopt
regulations, directives , decisions, recommendation and opinion.

+ Treaties, regulations and decisions:

- Treaties are indeed there to be directly effective (defrenne)

- Does regulation have DE (Leonesio)
- Does a decision have a DE (Grad)
- What is regulation? EU directives, binding and binding in its entirety and directly
applicable in all MS under article 288 TFEU so also directly effective (Leonesio).
- Decisions intend to bind specific parties (individuals companies or the state) and
therefore are directly effective on those specified parties (grad) is binding but direct
towards a particular party.

+ DE of directives:

- Directives are a popular choice of legislative instruments because it affords MS some

freedom.
- Directives have a deadline for the implementation and only after this date, the
directive is directly effective (Ratti).
- Directives are directly effective from Van Duyn.
- Article 288 TFEU- a directive shall be binding as to the result to be achieved (an
outcome of a directive and is binding) upon MS which it is addressed but shall leave
to the national authorities.
- The choice to form and methods have deadline of implementation this is 2 years
from the day it was created.

C-41/74 Van Duyn 1974

- The claimant sought a work permit with the church of scientology to work in the UK
under a directive.
- CJEU held that if the directive did not have DE then it would lose its relevance.
- Directives had to have DE
- ‘The useful effect of such an act would be weakened’.
+ Problems with DE of directives:

- The MOS may simply fail to take any action to implement the directives.
- The MOS may transpose the directive incorrectly so when attempting
implementation, they must not comparison late correct implementation (Wallonie).
- The CJEU may clarify the meaning and interpretation of a directive which makes it
clear that the domestic legal provision cannot be considered to be a correct
transposition of the directives.

+ Vertical and Horizontal DE:

- Vertical:

STATE

(Claim under EU law)

INDIVIDUAL

- Horizontal:

(Claim under EU law)

INDIVIDUAL INDIVIDUAL

(No state body)

+ Treaties:

- Some treaty provisions can only be vertically directly effective but the treaty is both
vertical and horizontal DE.
- Examples include:
1) Sex discrimination in relation to pay (defrenne)
2) Discrimination on the grounds of nationality for workers (Bosman)
3) Trade unions collective action impending establishment/ services (Viking; Laval)

+ Directives:

- The CJEU has allowed vertical DE or directives but it has categorically refused to
allow horizontal effect or directives.
- No horizontal DE of directives from Marshall, Faccini Dori.
- Because individuals have no influence over the member states implementation of a
directive it would not be fair to impose obligations on them.
- However, this excludes protection of rights under directives for some individuals.