1. EU Secondary Legislation

2. Secondary legislation Law made by the EU institutions –conferred powers binding and not binding BINDING: regulations, directives, decisions Not Binding: opinions, recommendations

3. Article 288: To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force

4. Regulations, directives and can be issued in three different levels of Union acts: Legislative- delegated- implementing acts Legislative acts are the outcome of the ordinary legislative procedure: joint adoption by the European Parliament and the Council on a proposal from the Commission. Essential element of the discipline

5. Delegated: non-legislative acts (different procedure) of general application to supplement or amend certain non-essential elements of the legislative act (art. 290) Implementing (Art. 291) where uniform conditions for implementing legally binding Union acts are needed

6. NO formal hierarchy between regulations directives and decisions – but hierarchy between legislative and delegated acts Acts enacted to develop EU policies Often used in conjunction Procedural conditions – reasons – publication – access to documents Limited powers - conferral - legal basis

7. Regulation It shall have general application. - Abstract not individual application. It shall be binding in its entirety. – not incomplete application by MS directly applicable in all Member States - no transposition in national legal order

8. Direct applicability: It refers to the way in which international legal rules enter the national legal system International law and national legal order are often considered two separate legal orders –– thus incorporation of international law in national law is required The EU Treaty establishes that this process of incorporation is not necessary not even allowed for regulations. WHY?

9. High Number of regulations enacted: What if all have to be incorporated in national legal system? Direct application means that regulations are integral part of the national legal system automatically without the need for further legislative enactment within that Member State.

10. Effects of a regulation are independent of any measure of reception into national law - Even the mere reproduction of the contents of the regulation in an internal measure cannot be accepted. WHY ?

11. Otherwise the simultaneous and uniform application of the regulations throughout the EU would be compromised. A national measure of incorporation could conceal the nature and effects of a regulation. Particular qualities of EU law - supremacy – different methods of interpretation – competence of the ECJ – These cannot be ignored

12. Variola Variola. Reference for a preliminary ruling: Tribunale civile e penale di Trieste – Italy. Case 34/73, 10.1. 1974 Italy enacted legislation (legge ordinaria) reproducing the content of regulations. A national Court asked the ECJ whether this practice was correct

13. Variola the court is, in effect, asked to determine whether the disputed provisions of the regulations can be introduced into the legal order of member states by internal measures reproducing the contents of community provisions in such a way that the subject - matter is brought under national law, and the jurisdiction of the court is thereby affected. 10 the direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.

14. Variola by virtue of the obligations arising from the treaty and assumed on ratification, member states are under a duty not to obstruct the direct applicability inherent in regulations and other rules of community law. strict compliance with this obligation is an indispensable condition of simultaneous and uniform application of community regulations throughout the community.

15. Variola.. more particularly, member states are under an obligation not to introduce any measure which might affect the jurisdiction of the court to pronounce on any question involving the interpretation of community law or the validity of an act of the institutions of the community, which means that no procedure is permissible whereby the community nature of a legal rule is concealed from those subject to it. under article 177 of the treaty in particular, the jurisdiction of the court is unaffected by any provisions of national legislation which purport to convert a rule of community law into national law.

16. Direct effect of regulation Does a regulation have direct effect? (Variola) owing to its very nature and its place in the system of sources of community law, a regulation has immediate effect and, consequently, operates to confer rights on private parties which the national courts have a duty to protect. Since a regulation is immediately part of of the domestic law of member States Regulations have therefore direct effect unless so long as they are clear precise unconditional If they require integration the rule might not be complete and cannot be applied

17. Direct Effect - Regulations However: what if a regulation requires implementing measures? Is it compatible with the direct applicability of a regulation that its provisions have not direct effect? That is they do not confer rights on individuals that they can rely on before a national court (or administrative authority)

18. Monte Arcosu Monte Arcosu: Private legal person applies to be entered in the Register of Farmers Practising Farming as their Main Occupation. That application was rejected by decision of 11 September 1991 on the ground that the regional rules did not provide for commercial companies to be entered in that register.

19. Monte Arcosu Regulation lays down criteria in the case of a natural person, ( include at least the condition that the proportion of income derived from the agricultural holding must be 50% or more of the farmer's total income and that the working time devoted to work unconnected with the holding must be less than half of the farmer's total working time.) For persons other than natural person the regulation provides that: On the basis of the criteria referred to in the foregoing subparagraph, the Member States shall define what is meant by this same expression in the case of persons other than natural persons.

20. Monte Arcosu Member States were required, within six months of 1 April 1985, to bring into force the measures necessary to comply with that regulation. Despite the silence of the Italian legislature, is it in any event possible to apply the Community provisions in question to persons other than natural persons, and in particular to companies having legal personality?

21. Monte Arcosu whether, and under what conditions, a national court may apply to limited companies the last subparagraph of Article 2(5) of Regulation No 797/85 and the last subparagraph of Article 5(5) of Regulation No 2328/91 where the legislature of a Member State has not adopted the provisions necessary for their implementation in the national legal system.

22. Monte Arcosu In this respect, although, by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, some of their provisions may none the less necessitate, for their implementation, the adoption of measures of application by the Member States. 27 That is true of the last subparagraph of Article 2(5) of Regulation No 797/85 and the last subparagraph of Article 5(5) of Regulation No 2328/91 which provide that, on the basis of the criteria used in respect of natural persons, the Member States are to define what is meant by farmer practising farming as his main occupation in the case of persons other than natural persons.

23. Monte Arcosu In the light of the discretion enjoyed by the Member States in respect of the implementation of those provisions, it cannot be held that individuals may derive rights from those provisions in the absence of measures of application adopted by the Member States. It follows from the foregoing that the last subparagraph of Article 2(5) of Regulation No 797/85 and the last subparagraph of Article 5(5) of Regulation No 2328/91 may not be relied on before a national court by limited companies seeking to obtain the status of farmers practising farming as their main occupation where the legislature of a Member State has not adopted the provisions necessary for their implementation in the national legal system

24. Difference: direct applicability – direct effect Direct applicability: international treaty provisions are part of the national legal order without any further implementation Direct effect is individuals could invoke the provision in question before the national court

25. Sources of EU Law - directives Two stages of directives: a) Enactment by EU institutions b) Transpositions by member states. -The directive establishes a date for transposition (deadline) -It acquires legal effect only after this date has expired; -Discretion for choice of means restricted: no administrative practice or national case law) -Detailed directives no scope for action by MS

26. Directives directive National legislation of transposition Effects in national legal orders

27. Example: Council Directive 92/85/EEC Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) THE COUNCIL OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Economic Community, and in particular Article 118a thereof, Having regard to the proposal from the Commission, drawn up after consultation with the Advisory Committee on Safety, Hygiene and Health Protection at work (1), In cooperation with the European Parliament (2), Having regard to the opinion of the Economic and Social Committee (3),

28. Council Directive 92/85/EEC Article 1 Purpose 1. The purpose of this Directive, which is the tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC, is to implement measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or who are breastfeeding. 2. The provisions of Directive 89/391/EEC, except for Article 2 (2) thereof, shall apply in full to the whole area covered by paragraph 1, without prejudice to any more stringent and/or specific provisions contained in this Directive. 3. This Directive may not have the effect of reducing the level of protection afforded to pregnant workers, workers who have recently given birth or who are breastfeeding as compared with the situation which exists in each Member State on the date on which this Directive is adopted. Art

29. Council Directive 92/85/EEC Guidelines 1. In consultation with the Member States and assisted by the Advisory Committee on Safety, Hygiene and Health Protection at Work, the Commission shall draw up guidelines on the assessment of the chemical, physical and biological agents and industrial processes considered hazardous for the safety or health of workers within the meaning of Article 2.

30. Council Directive 92/85/EEC Article 9 Time off for ante-natal examinations Member States shall take the necessary measures to ensure that pregnant workers within the meaning of Article 2 (a) are entitled to, in accordance with national legislation and/or practice, time off, without loss of pay, in order to attend ante-natal examinations, if such examinations have to take place during working hours.

31. ..And the Decreto legislativo (Italian act of transposition) Art. 7. Esami prenatali 1. Le lavoratrici gestanti di cui all'articolo 1 hanno diritto a permessi retribuiti per l'effettuazione di esami prenatali, accertamenti clinici ovvero visite mediche specialistiche, nel caso in cui questi debbono essere eseguiti durante l'orario di lavoro. 2. Per la fruizione dei permessi di cui al comma 1 le lavoratrici presentano al datore di lavoro apposita istanza e successivamente presentano la relativa documentazione giustificativa attestante la data e l'orario di effettuazione degli esami.

32. Direct effect directives – Van Duyn Can a directive have direct effect? See definition in article 288. The question was first discussed in the Van Duyn case. Ms. Van Duyn not allowed to take a job as secretary for scientology. Violation of free circulation of workers? UK justified its refusal on the ground of public policy. ARTICLE 3 OF DIRECTIVE NO 64/221 (not implemented by the UK) measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned Could the proviso of the directive be invoked by Ms. VD?

33. Van Duyn United Kingdom observes that, since article 189 of the treaty distinguishes between the effects ascribed to regulations, directives and decisions, it must therefore be presumed that the council, in issuing a directive rather than making a regulation, must have intended that the directive should have an effect other than that of a regulation and accordingly that the former should not be directly applicable.

34. Van Duyn if, however, by virtue of the provisions of article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of acts mentioned in that article can never have similar effects.

35. Van Duyn it would be incompatible with the binding effect attributed to a directive by article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned. in particular, where the community authorities have, by directive, imposed on member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of community law.

36. Van Duyn article 177, which empowers national courts to refer to the court questions concerning the validity and interpretation of all acts of the community institutions, without distinction, implies furthermore that these acts may be invoked by individuals in the national courts. it is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between member states and individuals.

37. Van Duyn by providing that measures taken on grounds of public policy shall be based exclusively on the personal conduct of the individual concerned, article 3 ( 1 ) of directive no 64/221 is intended to limit the discretionary power which national laws generally confer on the authorities responsible for the entry and expulsion of foreign nationals.

38. Van Duyn first, the provision lays down an obligation which is not subject to any exception or condition and which, by its very nature, does not require the intervention of any act on the part either of the institutions of the community or of member states. secondly, because member states are thereby obliged, in implementing a clause which derogates from one of the fundamental principles of the treaty in favour of individuals, not to take account of factors extraneous to personal conduct, legal certainty for the persons concerned requires that they should be able to rely on this obligation even though it has been laid down in a legislative act which has no automatic direct effect in its entirety.

39. Van Duyn This for the principle – although in this case the Court acknowledge that : a State is entitled to take into account, as a matter of personal conduct of the individual concerned, the fact that the individual is associated with some body or organization the activities of which the member state considers socially harmful but which are not unlawful in that state,..

40. Ratti – the importance of the deadline of a directive criminal proceeding agains t mr. Ratti who was charged of having infringed italian law concerning the labelling od certain chemical products. two council directives: -the first of 4 june 1973 on the classification, packaging and labelling of dangerous preparations ( solvents) - the second, of 7 november 1977 on the classification, packaging and labelling of paints, varnishes, printing inks, adhesives and similar products

41. Ratti that directive proved necessary because dangerous substances and preparations were subject to rules in the member states which displayed considerable differences, particularly as regards labelling, packaging and classification according to the degree of risk presented by the said products. 11those differences constituted a barrier to trade and to the free movement of goods and directly affected the establishment and functioning of the market in dangerous preparations such as solvents used regularly in industrial, farming and craft activities, as well as for domestic purposes. 12in order to eliminate those differences the directive made a number of express provisions concerning the classification, packaging and labelling of the products in question ( article 2 ( 1 ), ( 2 ) and ( 3 ) and articles 4, 5 and 6 ).

42. Ratti member states may not prohibit, restrict or impede on the grounds of classification, packaging or labelling the placing on the market of dangerous preparations which satisfy the requirements of the directive,

43. Ratti as far as solvents are concerned, that legislation ought, at the material time, to have been amended in order to comply with directive no 73/173 of 4 june 1973, the provisions of which member states were supposed to incorporate into their internal legal orders by 8 december 1974 at the latest, an obligation which the italian government has not fulfilled. that amendment would have resulted in the repeal of the provision of the italian law which the accused is charged with contravening and would consequently have altered the conditions for applying the criminal sanctions contained in the law in question.

44. Ratti as regards the packaging and labelling of varnishes member states have until 9 november 1979 to comply with directive no 77/728 of 7 november 1977

45. Ratti as regards the packaging and labelling of both the solvents and the varnishes produced by his undertaking, the accused complied, in the one case, with the provisions of directive no 73/173 ( solvents ), which the italian government had failed to incorporate into its internal legal order, and, in the other case, with the provisions of directive no 77/728 ( varnishes ), which member states must implement by 9 november 1979.

46. Ratti the national court, finding that ' ' there was a manifest contradiction between the community rules and internal italian law ' ', wondered which of the two sets of rules should take precedence in the case before the court ' ' and referred to the court the first question, asking as follows : ' ' does council directive 73/173/eec of 4 june 1973, in particular article 8 thereof, constitute directly applicable legislation conferring upon individuals personal rights which the national courts must protect? ' '

47. Ratti 21. particularly in cases in which the community authorities have, by means of directive, placed member states under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of community law. 22. consequently 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.

48. Ratti whilst under article 189 regulations are directly applicable and, consequently, by their nature capable of producing direct effects, that does not mean that other categories of acts covered by that article can never produce similar effects. it would be incompatible with the binding effect which article 189 ascribes to directives to exclude on principle the possibility of the obligations imposed by them being relied on by persons concerned.

49. Ratti it follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting member state, must uphold that request if the obligation in question is unconditional and sufficiently precise. therefore the answer to the first question must be that after the expiration of the period fixed for the implementation of a directive a member state may not apply its internal law - even if it is provided with penal sanctions - which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.

50. Ratti What about the second directive ? IT IS ONLY AT THE END OF THE PRESCRIBED PERIOD AND IN THE EVENT OF THE MEMBER STATE ' S DEFAULT THAT THE DIRECTIVE … WILL BE ABLE TO HAVE THE EFFECTS DESCRIBED IN THE ANSWER TO THE FIRST QUESTION. UNTIL THAT DATE IS REACHED THE MEMBER STATES REMAIN FREE IN THAT FIELD.

51. IT IS NOT POSSIBLE FOR AN INDIVIDUAL TO PLEAD THE PRINCIPLE OF ' ' LEGITIMATE EXPECTATION ' ' BEFORE THE EXPIRY OF THE PERIOD PRESCRIBED FOR ITS IMPLEMENTATION.

52. Direct effect of directives Two conditions: -the date the directive has established for translation into legal order of the MS has expired -The provision of the directive must be clear, precise and unconditional (Van Gend en Loos criteria)

53. Direct effect of directives Direct effect is conceived as a sanction for the state for not having transposed the directive within the deadline That is: a state cannot take advantage from the violation of its legal obligation

54. Horizontal and vertical effect of directives Direct effect - rules produced in Europe have effect in Member States without the need for the States themselves to pass individual law -horizontal: the EU provision having direct effect can be relied upon by individuals in cases against other individuals (treaty provisions, regulation provisions) -Vertical: the EU provision can be relied upon by individual in cases brought against the state (not by the state against individual)

55. Horizontal and vertical effect directives Directives have only vertical direct effect but they can be relied upon: against a State This is a limitation of the effect of directives. What is a “State”? organ of a State? Against a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon (Court of Justice) ex.: Tax authorities, local or regional authorities, constitutionally independent authorities responsible for the maintenance of public order and safety, public authorities providing public health services

56. Indirect Effect What happens if a directive cannot be relied upon before a national jurisdiction in an horizontal dispute? principle of conform interpretation: the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 288 of the Treaty.

57. Marleasing case Marleasing SA versus la Commercial before a Spanish court According to M. the contract establishing "La Comercial" was void and that the formation of La Comercial should be nullified on the grounds that establishment "lacked cause” Spanish Civil code provided for this ground of annulment of contracts

58. Marleasing La Comercial argued that the action should be dismissed EC: Directive 68/151/EEC of 9 March 1968 – not implemented by Spain - provides an exhaustive list of the cases under which the nullity of a company may be ordered The "lack of cause" was not a ground listed therein.

59. Marleasing Question referred by the Spanish Court to the ECJ: Is Article 11 of [the] Council Directive 68/151/EEC of 9 March 1968, which has not been implemented in national law, directly applicable so as to preclude a declaration of nullity of a public limited liability company on a ground other than those set out in the said article ?

60. Marleasing Member States' obligation arising from a directive to achieve the result envisaged by the directive …. is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty

61. Marleasing It follows that the requirement that national law must be interpreted in conformity with Article 11 of Directive 68/151 precludes the interpretation of provisions of national law relating to public limited companies in such a manner that the nullity of a public limited company may be ordered on grounds other than those exhaustively listed in Article 11 of the directive in question

62. Marleasing Thus what is the judge allowed to do in this case? It could find a ground for nullity in those grounds listed in the Civil code and also provided for in the directives (ex: objects of the company are unlawful or contrary to public policy).

63. Francovich case - Member States liability Directive 80/987 required the establishment of a scheme for workers protection in the case of insolvency of employer.. Since Italy had failed to implement the directive, the individual workers - who were unable to recover the wages due to them - brought a claim before their national courts for compensation for the damage they had suffered due to this failure.

64. Conditions for responsibility The directive does not have direct effect but there is state liability on the basis of the failure the implement a directive the claimant must prove that: -The directive conferred specific rights on him, -Those rights were identifiable in its wording, -There is a causal link between the state's failure to implement the directive and the loss suffered The responsibility rises only in case of a serious breach of eu law (for example: no transposition of directive within the prescribed time limit)

65. Faccini Dori case Consumer protection directive - contract negotiated away from business premises – right to renounce. Ms Faccini Dori bought an English course at the Florence Train station - renounce not possible because Italy had not implemented the directive. Recreb sued FD Can FD ask the court to apply the directive?

66. Faccini Dori Directive not transposed Directive provision clear and unconditional BUT Horizontal direct effect Recreb c. Faccini Dori – private parties) Conform interpretation? Responsibility of Italy? Are conditions for responsibility fulfilled in this case?

67. Faccini Dori 24 The effect of extending that case-law to the sphere of relations between individuals would be to recognize a power in the Community to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations. 25 It follows that, in the absence of measures transposing the directive within the prescribed time- limit, consumers cannot derive from the directive itself a right of cancellation as against traders with whom they have concluded a contract or enforce such a right in a national court.

68. Faccini Dori The judgments of the Court in Case C-106/89 Marleasing v La Comercial Internacional de Alimentación [1990] ECR I-4135, paragraph 8, and Case C-334/92 Wagner Miret v Fondo de Garantía Salarial [1993] ECR I-6911, paragraph 20, make it clear that, when applying national law, whether adopted before or after the directive, the national court that has to interpret that law must do so, as far as possible, in the light of the wording and the purpose of the directive so as to achieve the result it has in view and thereby comply with the third paragraph of Article 189 of the Treaty.

69. Faccini Dori 27 If the result prescribed by the directive cannot be achieved by way of interpretation, it should also be borne in mind that, in terms of the judgment in Joined Cases C- 6/90 and C-9/90 Francovich and Others v Italy [1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through failure to transpose a directive, provided that three conditions are fulfilled. First, the purpose of the directive must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there must be a causal link between the breach of the State' s obligation and the damage suffered.

70. Faccini Dori 28 The directive on contracts negotiated away from business premises is undeniably intended to confer rights on individuals and it is equally certain that the minimum content of those rights can be identified by reference to the provisions of the directive alone

71. Faccini Dori Principle of responsibility If the result prescribed by the directive cannot be achieved by way of interpretation, it should also be borne in mind that, in terms of the judgment in Joined Cases C-6/90 and C- 9/90 Francovich and Others v Italy [1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through failure to transpose a directive, provided that three conditions are fulfilled. First, the purpose of the directive must be to grant rights to individuals. Second, it must be possible to identify the content of those rights on the basis of the provisions of the directive. Finally, there must be a causal link between the breach of the State' s obligation and the damage suffered

72. Sources of EU Law - decisions Decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them (Article 288) Double nature of decisions: individual act – general act A decision was originally conceived as an individual act ( addressed to a specified person or persons (including States). Act for administrative competence of the EU. Ex.: the granting or refusal of State aid, the annulment of agreements or arrangements contrary to fair competition and the imposition of fines or corrective measures.

73. Decisions General act: For ex.: institutional questions statue of the European ombudsman, general aspects of system organization (decision on Comitology), in this case no horizontal direct effect

74. Sources of EU Law – other acts Opinions and Recommendations (article 288) Not binding Recommendations enacted by institutions and addressed to other institutions or MS can be useful for the interpretation of binding acts Opinions: can be compulsory but not binding Acts not provided for in article 288: inter- institutional agreements, general programmes..