1. THE EFFECT OF COMMUNITY LAW IN THE NATIONAL COURTS

2. Lecture Aims The examine the doctrine of direct effect of EC law
To understand why the ECJ developed the doctrine of direct effect
To understand the difference between vertical and horizontal direct effect
To understand the particular position regarding directives

3. International treaties
Usually agreements between governments
Do not usually confer any rights on individuals
Community legal order however constitutes a “ new legal order of international law” in which the EC Treaty imposes legal obligations and confers legal rights on individuals and these obligations/rights are enforceable in the national courts

4. Van Gend en Loos Case 26/62 Customs duty imposed by Dutch government
Duty imposed contrary to Article 25 (then Art 12) of EC Treaty
Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States

5. Van Gend en Loos Case 26/62
Preliminary ruling from Dutch Court (under Art 234 (ex 177))
Does article 25 (ex 12) have direct application in national law in the sense that nationals of Member states may, on the basis of this Article, lay claim to rights which the national court must protect?

6. Van Gend en Loos Case 26/62
Necessary to consider the “spirit, the general scheme and the wording” of these provisions
Objective of the Treaty is to create a common market-of direct concerned to interested parties
This implies the Treaty is more than just an agreement between states
This is confirmed by:
Preamble of EC Treaty
The fact that the Treaty established institutions with sovereign rights in particular the European Parliament
The existence of the preliminary rulings procedure (Art 234 EC Treaty (ex Art 177))

7. Van Gend en Loos Case 26/62 Community constitutes a new legal order
for the benefit of which States have limited their sovereign rights...
the subjects of which comprise the Member States and their nationals
Independently of national legislation, Community law therefore imposes obligations on individuals and also confers rights which become part of the national heritage

8. Van Gend en Loos Case 26/62 How did Art 25 confer any rights?
“These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon Member states and upon the institutions of the Community”

9. DIRECT EFFECT
Directly effective provisions create individual rights which must be protected by the national courts
Article 25 ideally suited to producing direct effects

10. Van Gend en Loos Case 26/62
Dutch government argued that only way to deal with an infringement of Community law by a Member state was for Commission to bring infringement action under art 226 (ex 169)
ECJ- the vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted to the Commission
Dual vigilance

11. Conditions for direct effect
Case 2/74 Reyners v Belgium
The provision of Community law must be
clear, precise and unambiguous
unconditional
the operation of the provision must not be dependent on any further action being taken by the Community or the national authorities

12. Direct effect Vertical direct effect obligation on the state
individual enforcing rights against the the state
Van Gend en Loos

13. HORIZONTAL DIRECT EFFECT
Defrenne v SABENA Case 43/75
sex discrimination claims against employer
Art 119 (now 141) Member States “shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied”

14. Defrenne v SABENA Was Article 119 capable of producing direct effect?
Was Article 119 capable of imposing an obligation on an individual?
In short was the article capable of horizontal direct effect?

15. Defrenne v SABENA
Article 119 (now 141) confers individual rights which must be protected
The fact that Art 119(now 141) is addressed to Member States does not prevent such rights being conferred on individuals
Art 119 (now 141), being mandatory, extends to all agreements intended to regulate paid labour collectively

16. Treaty Articles Capable of direct effect
Capable of both vertical and horizontal direct effect
Vertical direct effect- as against the state
horizontal direct effect-as against another individual

17. Direct effect cases Case 124/73 Sabam -Articles 81 and 82
Case 36/74 Walrave v Koch -Article 12
“prohibition of such discrimination doe not only apply to the acts of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services”

18. TREATY ARTICLES Can bind the State ( vertical direct effect)
Can bind individuals ( horizontal direct effect)
Article 28 (ex 30)
Article 39 (ex 48)
Article 43 (ex 52)

19. Direct effect of EC Secondary legislation
Regulations
Directives
Decisions

20. A Note of caution Direct effect and direct applicability
Directly applicable- self executing-no need for any implementing legislation
Different to direct effect-direct effect concerned with enforceable rights

21. REGULATIONS Article 249 (ex 189) “directly applicable”
May also be directly effective if they satisfy tests laid down in Van Gend en Loos

22. Decisions Case 9/70 Franz Grad v Finanzamt Traunstein
“ It would be incompatible with the binding effect attributed to decisions by virtue of Art 249 to exclude in principle the possibility that persons affected may invoke the obligation imposed by the decision”

23. DIRECTIVES
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 and form of methods”-
Article249 (ex 189)

24. DIRECTIVES Directives are not (cf..regulations) directly applicable
Need to be transposed into domestic law (thus conditional on Member State action)
in a legally certain manner
by the date prescribed
must achieve the aims
Member States have discretion as to how to achieve the aims

25. Direct effect of directives?
Van Duyn v Home Office Case 41/74
Directive 64/221/EEC
It would be incompatible with the binding effect of directives to exclude the possibility that individuals might seek to rely on the obligations contained in them

26. Reasons Pubblico Ministero v Ratti Case 148/78
incompatible with binding nature of directives to stop individuals relying on directives
To make directives more effective
if directives were not capable of direct effect then the useful effect (effet utile) would be weakened
to ‘estop’ a Member State from relying on its won wrongdoing (failure to implement the directive)

27. Direct effect of directives
Pubblico Ministero v Ratti Case 148/78
directives cannot have direct effect before the time limit for implementation has expired

28. Limits to the direct effect of directives
Marshall v Southampton Area Health Authority Case 152/84
Directive 76/207/EEC

29. Marshall v Southampton Area Health Authority
M works for SAHA
Dismissed because she had passed normal retirement age of women
NO claim under Sex Discrimination act
M argues treatment contrary to Directive 76/207/EEC
Preliminary ruling from English court

30. Marshall v Southampton Area Health Authority
Directive prohibited this form of discrimination
The directive was capable of conferring enforceable rights
UK argued that directive could not impose obligations on individuals (the SAHA)
“It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against a person”
Directives NOT capable of horizontal direct effect

31. Reasons Art 249 -Directives are addressed to Member States
Therefore directives are only capable of imposing obligations on Member States
(At the time there was no requirement that directives be published)

32. The Marshall case
Directive can not directly impose obligations on individuals
Question-had SAHA acted as an individual or as part of the state (even in its capacity as an employer)?
ECH held that where a person is seeking to rely on a directive as against the state he may do so irregardless of the capacity in which the state acts
Why? Because ”it is necessary to prevent the State from taking advantage of its own failure to comply with Community law”

33. The creation of an anomaly
UK argued that this (limitation) would give rise to an arbitrary and unfair distinction between the rights of state employees and those in private sector
ECJ-” Such a distinction can easily be avoided if the Member State concerned has correctly implemented the directive into national law”

34. The creation of an anomaly
Problems:
the effectiveness of directives within the national legal system is restricted
this threatens the uniform application of Community law
discrimination between individuals litigants as it depends upon whether they are seeking to enforce provisions in directive against the state or another individual

35. ECJ responses ECJ has not overruled Marshall
ECJ has given a very broad interpretation to the definition of the state and emanations of the state
ECJ has developed the principle of indirect effect and state liability

36. The State Case 103/88 Fratelli Constanzo v Commune di Milano
“ all organs of the administration including decentralised authorities such as municipalities”

37. The State or an emanation of the state
Foster v British Gas (Case C-188/89)
Legal form of the body is not relevant
Made responsible by the state for providing a public service
The public service is under the control of the state AND
The body has special powers

38. The State or an emanation of the state
Johnston v Chief Constable Royal Ulster Constabulary Case 222/84
Doughty v Rolls Royce plc [1992]
Griffin v South West Water Services (1995)-the issue is whether the ‘services’ are under the control of the state

39. The State or an emanation of the state?
The test…
a body whatever its legal form
made responsible by state for providing public service
under the control of the state
has for that purpose ‘special powers’

40. Horizontal Direct Effect revisited
Case C-91/92 Dori (Paola Faccini) v Recreb Srl
Advocate General Lenz

41. Dori (Paola Faccini) v Recreb Srl
“The effect of extending the case law to the sphere of relations between individuals would be to recognise 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”

42. Other options Indirect effect State Liability
The development of ‘incidental horizontal direct effects’

43. Conclusion Direct effect
Treat articles- vertical and horizontal direct effect
Directives ONLY capable of horizontal direct effect