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EU LAW NOTES: 13th October Direct Effect: Mainly judge based change in European legal order. Van Gend en Loos (ECJ): Dutch company. Company was importers and exporters, trading with mostly Germany. Dutch gov asked company to pay a customs duty when importing a specific chemical. A customs duty is mo...

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EU LAW NOTES: 13th October

Direct Effect: Mainly judge based - change in European legal order.

Van Gend en Loos (ECJ): - Dutch company. - Company was importers and exporters, trading with mostly Germany. - Dutch gov asked company to pay a customs duty when importing a specific chemical. - A customs duty is money that has to be paid to move product from one country to another. - Company not happy to pay - 1957 Netherlands signed and ratified Treaty of Rome. - Art 12 of EEC Treaty (old version) 'member states shall abolish customs duties.' - Trying to win case using an international agreement. - Can an individual rely on an international agreement?

Arguments against: - You cannot rely before a court on an agreement which contracts only the member states. - Text of the treaty ('member states'). - It would be up to the commission to decide whether the member state were in the wrong.

Decision of ECJ: - "The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights that become part of their legal heritage." - Van Gend en Loos can rely on Article 12 -Individuals can directly benefit from the treaty. Agreement has direct effect on individuals.

Why? - The treaty's aim is to establish a common market, therefore creating individual rights.

- Links the work of ECJ with national courts for interpretation of the treaty meaning individual rights should be protected. - Article 12 EEC Treaty - provides clear and unconditional prohibition. - Elected Assembly - In preamble of treaty says 'this is going to be good for the people.'

The Real Reasoning from Court: - "The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted to the diligence of the Commission and of the member states." - Company acts as a private enforcer of EU law. - Effective application of EU law - using individuals to ensure the effective application of the treaty.

Conditions: - Not implying all articles of the treaty can be used by individuals before a court. - Article of the treaty must be clear, sufficiently precise and unconditional. - Unconditional means no exception and does not depend on any further action. - ECJ decides whether articles fulfil the criteria. - Court able to establish that key provisions at the disposal of individuals.

Direct Effect of Treaty Provision: - Rationale of direct effect is so national courts do not forget about EU law. - Vertical direct effect: individual v. member state.

How far do these obligations stretch? - All public authorities. - Individuals (horizontal effect).

18th October

Horizontal Direct Effect:

Defrenne v Sabena [1976] - Equal pay - Flight attendant who retired, realised she was getting a smaller pension than a male retiree. - Argued that Article 119 of the treaty gave her a right to be treated the same. - Men and women have to be paid the same when they perform the same job. - 'Equal pay for equal work for men and women' - clear, precise and unconditional (Van Gend en Loos). - MS argued against the statement and what it meant. - Court decided article C,P,U and so individual could use it. - Individual v. a company, not the state - horizontal situation. - "The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals."

Viking [2005]: - Finnish company ferries from Finland to Estonia. - Estonia becomes EU MS. - Viking wanted to move HQ to Estonia and re-flag all boats with Estonia flag. - Business decision to move, now EU member more opportunities. - Finnish trade union refused and strikes took place. - "free movement would be compromised if the abolition of State Barriers could be neutralised by obstacles resulting from the exercise, by associations or organisations."- court decision. - Cannot stop their right to find business in another state - strike potential barrier to free movement. - Company v. trade union - between individuals horizontal direct effect.

Supremacy: Costa v Enel [1964]: - EEC Treaty 1957 - Monopolies (state/ private company has control of a product) on goods prohibited. - Italian law 1962 - Created a monopoly on electricity called 'Enel'.

- Costa refused to pay bill for new company. - Italian Supreme Court gave judgment that later law should prevail.

ECJ: - "By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the MS and which their courts are bound to apply." - By creating a Community of unlimited duration, having its own institutions, its own personality, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.

1. Permanent limitation of sovereignty. 2. EU law 'superior' to domestic law. 3. Role of National Courts - need to make sure that they oblige the member state to comply.

Simmenthal: - National court asked ECJ what to do when Supremacy to be applied. - ECJ replied to disapply national law (don't have to abolish).

20th October

Direct Effect: National judge has a duty to set aside conflicting national legislation and follow European law, having to repeal the conflicting legislation. Kreil: - Expert on radio signal transmissions, sees ad from German Army advertising for radio operator. She applies and her application rejected on ground that she is not a man. - Case where non-discrimination due to gender is enforced in all EU states. Arguing treaty article for sex equality to enforce her right on a national court, case of direct effect. - Need to show entitled to rely on the Treaty. - Then that the provision of the article is sufficiently clear, precise and unconditional. - Despite fact that treaty talks about equal pay also about employment rights for female (doesn't even get chance of interview). - Problem of conflict between German Law and EU Law so have to use idea of direct effect to disapply German law in favour of European law. - Idea of supremacy. - German gov have to change law to entitle women to jobs. - Held that breaching fundamental principle of European Law.

Alternative Scenario: - Not just normal employment relationship - about composition of armed forces. - Decisions on defence policy Germany's choice - constitutional case. - Supremacy finds a limit when determining core values of a country. - Defence and security policy even under treaty not related to EU policy, classic national competence. - View from ECJ - supremacy is not subject to any limits - non-negotiable. - Supremacy and Direct Effect can touch on very sensitive issues.

Thoburn: -

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Need to display products in kilos AND pounds (lbs). Thoburn refused to use kilos and said he would not pay the fine so brought to English court. Defence: Constitutional matter, represent cultural value of the British people, symbols of our identity. Therefore, supremacy must give way. Thoburn lost the case on basis that EU law overrides and supremacy.

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Supremacy always applies. View from national court that one day clear clash between EU law and constitutional value of EU state then may no longer be supreme.

Grogan: -

Advertising abortion clinics in UK outside Irish university At that time illegal for abortion and incitement Taken to court. Advertising medical service that is lawful in UK. By stopping advertising, violating free movement (economic case). Argued that against Irish constitutional value Court said Grogan was not linked with the clinics or provisional of the economic services so therefore the case was inadmissible because he had no standing - no causal link. Can be difficult to reconcile EU law with national constitutional issues.

25th October

Direct Effect of Directives: -

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Regulations have direct effect as linked directly into domestic law. "A directive shall be binding as 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." Article 228 TFEU Directives are a two stage process, first member state told to implement and secondly made to be implemented. Always conditional on the implementation by member state, by definition should not have direct effect.

Vertical direct effect of Directives: -

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Case 41/74 Van Duyn [1974] - wanted to come to UK to work for Scientology church, UK told not to come due to not identifying church. EU law (free movement of workers) allowed for her to be entitled to work in the UK, Contrary to what the directive of free movement of work says. Argument by UK that directives can never rely on direct effect unless UK implement. Courts said that if directive have to be binding they must be effectively applied (principle of effective implementation of EU Law). "Useful Effect would be weakened". A MS cannot benefit from its own wrong-doings. Bound to comply with the aim of the directive.

Requirements for directive: clear, sufficiently precise, unconditional PLUS: - direct effect only after deadline for implementation (individuals cannot immediately rely on the directives). -C-129/96 Inter-Environment Wallonie [1997] - Individual can rely on a directive when incorrect implementation is put in place and ECJ can alter this.

Horizontal direct effect? -

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Case C-91/92 Faccini Dori [1994] Italian law student approached by a gentleman offering an English language course and she signed up. After a week, received course at home, contested that thought signing meant she would just get info. Company said valid contract so she had to pay. Under Italian Law, contract so she has to pay. Directive exists - right to send everything back within seven days. Clear, unconditional, precise and deadline expired.

Entitled to rely on the directive? -

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Problem is that it is horizontal because case between two private individuals. Without national implementing law she could not rely on the directive itself in an action against another private party: this followed TEEC article 189 (now TFEU article 288) saying that Directives are 'binding only in relation to "each Member State to which it is addressed".' However, the court would be under a duty to interpret national law, as far as possible in line with the Directive's purpose. Moreover, the state would have to 'make good the damage' caused for failure to implement the law. Stark difference between article of court on horizontal effect with directives. No direct effect in horizontal situations with directives. Lack of protection for the individual.

Possible Alternatives: Lack of protection for the individual.

Wide concept of the state (Foster v British Gas [1990]): -

The court said that any kind of authority that exercises a public function or power should considered part of the state e.g. individual working for the NHS.

Consistent interpretation (indirect effect principle): -

Every time piece of EU law, if there is a dispute before national court, the court is under an obligation to as full as possible apply EU law. The "duty of loyal cooperation" in Article 4(3) TEU binds national courts. National legislation be interpreted in the light of the wording and of the purpose of the directives. In practice (Von Colson [1984]) - discussing implementation of legislation for sex equality, decided not fully complying with the directive. Directive said must apply "adequate and effective" sanctions for sex discrimination. ECJ says German court must interpret German law (and all MS in genera must do tool) in the light of the directive.

27th October

Vertical Direct effect of Directives:

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Rationale for the court to declare that directives can have direct effect is the same for foundational cases (Van Gend etc). 'Effective application of EU law' Direct effect for directives finds limits for horizontal direct effect between individuals.

Von Colson [1984] -

you have as a national judge a duty to interpret national law in the light of the wording purpose of a directive. National judge has to try rephrase and reinterpret national law to fit in with the wording of the directive.

Marleasing [1990] -

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A litigation between two Spanish companies, one accused other of creating a sham company. According to Spanish law, if the reason for creation of a company is a sham, this is a reason to make the company void. Other company stated there was a directive stating that the reasons for making a company void do not include making a sham company. Spanish court argued that it was a valid reason, failed to implement an EU directive. One company cannot rely on directive because individual v. individual - lack of horizontal direct effect. Spanish court says still a duty to interpret national law in the light of a directive.

Von Colson v. Marleasing difference: - The court in Marleasing expanded the principle of consistent interpretation whether or not the legislation had been passed prior to the directive. - Von Colson already German legislation implementing the directive. - Marleasing: Spanish judge had to interpret the Spanish Civil court in the light of the directive. - Applies regardless whether national implementation of directive or any national law. - Implication for national judge in practice is that in applying the directive and therefore conferring to the directive horizontal effect. Although trough filter of consistent interpretation, horizontal direct effect.

'A principle inherent in the treaty' - Pfeiffer and Others [2004]

Limits of Consistent Interpretation: AMS case C 176/12 [2014]: - Directive 2002/14/EC - every time company takes a fundamental decision for the existence of the company itself (merger, bankruptcy etc) have to consult the workers. - French Law: no information and consultation for establishments with fewer than fifty employees. - Clash between directive and French law. - Litigation between the trade union and small company who did not consult the workers - horizontal case (cannot rely directly on directive). - Consistent interpretation required.

Court: "Thus the obligation on a national court to refer to the content of a directive when interpreting and applying the relevant rules of domestic law is limited by general principles of law and it cannot serve as the basis for an interpretation of national law contra legem" - aka cannot turn French law upside down

Member State Liability: Case C-6 and 9/90 - Francovich [1991] - if directive cannot be used but MS state behaving badly, are individuals being denied remedies? - Held member states to provide reparation in damages for loss resulting from their failure to comply with EU law. - Rationale that need to provide further remedy in order to ensure MS complying with EU law obligations (same as Van Gend en Loos and Costa).

8th November

Free Movement of Goods: - A single market should create the same kind of economic and market conditions which are applicable in all countries. - Domestic market built on unity of member states. - British idea from the 1990s - Thatcher appointed Copperfield who created idea of single market. - Same rules applicable across all participating states. - Treaty of Rome - selected four factors of regulation: goods, services, workers and capital. - Abolition of internal borders between member states.

Treaty indicates two ways of doing so: 1. Positive harmonisation, adoption of legislation, regulations and directives. 2. Negative harmonisation, impose prohibition on member states to create barriers and obstacles.

- Treaty of Rome is mixture of two ideas. - ECJ relies of treaty articles to enforce these rules.

Free Movement of Goods: - Notion of 'product': tangible item made in member states. - Once items from abroad enter circulation in the EU they become EU products (aka imported beer). - Anything that can be sold or bought is a product. - Member states should not impose any fiscal barriers. Step 1: Customs Union - internal and external, cannot stop people at border and demand payment (customs duties). Step 2: Non-fiscal obstacles, member states are entitled to decide whether or not to tax the product (Article 110). Art 34: May have rules that will prevent products from coming into certain countries. "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States." - Tangible measure which is prohibited that imposes on imports of products a numerical threshold or total ban. "All measures having equivalent effect shall be prohibited between member states."

Dassonville: - Para. 5 prohibits MEQRs, "All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-community trade." Importance: - About the effects of the measure, not about the aims of it. - No need to establish a protectionist intent. - Any kind of national regulatory measures.

1. C-67/97 Ditlev Bluhme: - Danish beekeeper living in tiny island on the coast. Perfect habitat for the brown bee. - Wanted to import golden bees. - Was told not allowed, but made claim on free movement of goods. - Case about application of article 34. - Need to establish whether measure had impact on free movement of bees. - In order to apply Dassonville need to be able to show a threshold that there is going to be a problem for the internal market – no such threshold in this case.

10th November

Free Movement of Goods Continued

Definition of measures having equivalent effect: -

Dassonville – any rules that can affect free trade of products. Don’t have to enquire about reasoning of the measure, it’s the effect of the measure on free movement (actual, potential, small, big etc). Don’t have to question intent of measure. All about ensuring free movement. Any kind of form of measure. Impact of Dassonville – massive impact on idea of deregulation (legal and economic).

Commission v. Ireland (‘Buy Ireland’ case) -

Ireland decides to launch advertising campaign saying people should purchase Irish products because they are great etc. Trying to say that Irish domestic products were better than those of other countries. Advertising campaign. Some money came from Irish Government – enough for the court to stop the campaign (attributed to the member state). Any measure attributed to the member state falls into Dassonville formula. When Irish gov before European Court of Justice, measure that comes from the state. The campaign was useless, Irish products did not go up in sales – it failed. Argued, therefore no effect of the measure - Dassonville does not apply because no effects. Court said there was still potential effect so Dassonville applies.

Commission v. France -

French consumers started to consume more Spanish fruit and veg after Spain joining EU. French farmers very unhappy with situation and some retaliation took place (destroying Spanish produce). Commission brings action against France as has not fulfilled duties under the treaty by failing t...