European Law -2020 -2021

CHRISTINE SARAH KALIBBALA

Attorney of the High Court of South Africa
B:Com Law, LLB, Hons ( B:Com), Fellow
(SAIIPL), Cert Transnational Law, LLM
International Law and Globalisation
Lecture 2 – Overview
• Effects of EU law in the national legal systems
• Fundamental rights in the EU

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 Institutions, Procedures and Principles
1. Institutions – existing national institutions – courts, executive and
legislative institutions

2. Procedures – existing national rules of procedure – unique to each

member state in manner of executing legislation and core systems
structures in place

3. Principles – provide for the overall status of EU law in the Member

States – example principle of direct effect – we look at this in next
slide

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Direct Effect
• Principle of direct applicability (direct effect) :
• Means that it applies to all member states without implementation
with the same effect and in the terms in which it is made.
: It is directly binding for everyone in the entire EU!
Art. 288 TFEU

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Direct Effect
• Distinguish between :

• 1)Vertical direct effect and

• 2) Horizontal direct effect

• Vertical Direct Effect – Individual exert the rights example of TEU

on State – shows relationship between EU Law and National Law

• Horizontal Direct Effect – Individual can exert the rights against

another individual and or a company

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Types of Legal Acts
1) Treaty provisions - Van Gend & Loos is the landmark decision of the
ECJ on direct effect of EU law. It makes clear that citizens can rely on
rights given by the TFEU, if certain conditions are met.

2) Regulations – binding and directly applicable

3) Decisions – addressed and non-addressed (i.e. a set of abstract rules)

– binding on those addressed specifically to.

4) Directives – binding as to the result to be achieved but leaving the

choice of form and methods to the national authorities.

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Primacy
In the case of conflict, EU law prevails over national law.

The Court’s view: legislation incompatible with the EU legislation may NOT
derogate unilaterally from EU obligations (Costa case);

Scope and Effect :

▫ primacy in application in the individual case – it does not affect the

validity of the national law;

▫ in application it is unreserved and absolute;

▫ empowers all national judges (and administrators) to set aside

incompatible national laws
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National Procedures for enforcing EU Law
rights in member states
• Up to the domestic legal systems to designate the courts and
tribunals, and to lay down the procedural rules.

• The procedural rules of the EU take precedence over national

rules.

• If there are no EU rules, it is the national responsibility to enforce

EU law.

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National Procedures for enforcing EU Law
rights in member states
• Two qualifications to national autonomy :

• 1) Principle of Effectiveness -Means that domestic procedural law

must not make it impossible or excessively difficult to enforce rights
derived from EU law.

• 2) Principle of Equivalence - means that domestic procedural law

must operate in the same way for rights derived from domestic law
and their EU law equivalents. For example, EU law does not permit
domestic law to have different limitation periods for domestic law
rights and similar EU law rights

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National Procedures for enforcing EU Law
rights in member states
• State liability for breaches of EU law – a right to reparation:
▫ the rule of law infringed must be intended to confer rights on
individuals;
▫ the breach must be sufficiently serious;
▫ there must be a direct casual link between the breach of the
obligation resting on the State and the damage sustained by the
injured parties

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Fundamental rights in the European Union
- Charter of Fundamental Rights

• Full legal effect Lisbon treaty in 2009

• Article 51(1) of the Charter addresses the Charter to the EU's
institutions, bodies established under EU law, when implementing
EU laws, as well as the EU's member states. 

• Individuals will not be able to take a member state to court for

failing to uphold the rights in the Charter unless the member state
in question was implementing EU law

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Fundamental rights in the European Union

• One significant characteristic of the Charter is its innovative

grouping of rights, whereby it abandons the traditional distinction
between, on the one hand, civil and political rights and, on the other,
economic and social rights.

• At the same time, the Charter makes a clear distinction between

rights and principles

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Fundamental rights in the European Union
• Distinction between rights and principles:

• Principles are judicially cognizable only in the interpretation of

legislative and executive acts and the assessment of their validity,
e.g. a high level of environmental protection which must be
integrated into Union policies does not grant a free-standing right

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Fundamental rights in the European Union

• Fundamental rights are approached as an indivisible whole – all

rights are theoretically equal.

• Divided into six fundamental values:

• dignity,

• freedom,

• equality,

• solidarity, citizens’ rights and

• justice
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Fundamental rights in the European Union
• Dignity :
• The right to human dignity,
• to life,
• to integrity of the person;
• the prohibition of torture and inhuman and degrading treatment,
the prohibition of slavery and forced labor

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Fundamental rights in the European Union
• Freedoms :

• upholds the rights to liberty and respect for private and family life,
• the right to marry and to found a family, and
• the rights to freedom of thought,

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Fundamental rights in the European Union
Equality :

• Non-discrimination on grounds of sex,

• race,

• sexual orientation,

• religion, belief, on grounds of nationality, etc.

• Rights of more vulnerable members of society.

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Fundamental rights in the European Union
• Solidarity :
• ensures protection for the rights of workers, including the rights to
collective bargaining and action and to fair and just working
conditions.
• recognises additional rights and principles, such as the entitlement
to social security,
• the right of access to health care
• the principles of environmental and
• consumer protection.

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Fundamental rights in the European Union
• Citizen’s rights :

• lists the rights of the citizens of the Union,

• the right to vote and to stand as a candidate in elections to the European

Parliament and in municipal elections,

• the right to good administration,

• the rights to petition,

• to have access to documents, to diplomatic protection and to freedom of

movement and of residence

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Fundamental rights in the European Union
• Justice :

• reaffirms the rights to an effective remedy and a fair trial,

• the right of defence,
• the principles of legality and proportionality of criminal offences

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Fundamental rights in the European Union
• Pertinent questions to ask to see if Charter applies :

• Does the legislation intend to implement a provision of EU law?

• What is the nature of the legislation and what are its objectives?

• Are there specific rules of EU law on the matter or affecting it?

.

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