Law and Policy of the European Union – Direct Effect 2/2 PDF

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Law and Policy of the European Union – Direct Effect 2/2...

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Lecture 8 – Direct effect of directives

A provision in an article will have direct effect – not the directive itself. Not capable of horizontal direct effect. I. -

What is direct effect? Where a measure of EC law confers rights on individuals which are enforceable in national courts.

It allows the individual to take the right from the European legal order and put it in front of their domestic courts. An example is article 30 of TFEU. Direct effect brings the individual into the European legal order. To use an EU law provision which confers you rights in front of a national court, the article: - Must grant you a right - Which is worded in a sufficiently clear manner? Treaty articles and Regulations are both vertical and horizontal. Directives are only vertical (against the State or an emanation of the State). I.e. directives can only be applied against states. II.

What is a directive?

Article 288 TFEU: ‘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’. Once a regulation is published, it has an immediate legal effect. Directives are different as they need to be implemented. MS will be granted a certain period of time (generally 2 years). How do we implement a directive? We adopt national legislation . If correctly implemented, the individual will simply rely on national law. The problem is where it is not implemented on time, wrongly. The individual suffers. III.

Regulations v Directives:

R = Binding on its entirety, and directly applicable in all Member States. D = They are binding as to the end to be achieved while leaving some choice as to form and method open to the Member States Example: directive 40 2004/38 (explains rights of EU nationals). Includes 40ish articles. Case: 41/74 Van Duyn v Home Office – main case for direct effect of directives Court of Justice discuss the direct effect of articles in directives. Issue: Dutch woman worked for the Church of Scientology. The UK, in 70’s, adopted a policy of discouraging this religion as they claimed it was harming mental health, but not illegal. She was denied entry into the UK. Rule: by that time, we had directive 64/221 where you could deny entry but only if the measure you were taking was based exclusively on the personal conduct of the personal concerned (public security or public policy reasons). Otherwise, you can’t be denied entry. Did article 3(1) of the directive have direct effect or not? Held: Yes, it can have direct vertical effect. It would be incompatible with the binding effect attributed to a Directive in Art. 288 TFEU to exclude in principle the possibility of direct effect. If I can’t access a right, then it’s the same as having no right. Remember that MS are continuously infringing EU law. This is why direct effect is so important. Case 148/78 – Ratti – in order to claim rights under a directive, the time for implementation must have passed. Issue: Italian national who was running a firm, selling solvents and varnishes. There were two Directives on the packaging and labelling of varnishes and solvents from 1973 and 1974. One had to be implemented by 1977 and the other one by 1979. There was also an Italian law covering the matter from 1963, but different law. Ratti decided that when packaging his products, he would follow the Directives, as he was uncertain; did he follow national rules or EU rules? However, when he put his products in the market he was prosecuted for failure to comply with Italian law. He argued that it was enough to comply with the Directive and hence the Court in Milan sent a reference for a preliminary ruling asking whether these Directives had direct effect. Case goes to European Court of Justice.

Directives are only capable of having direct effect once the deadline for implementation has passed. MS are granted a period of time to comply. Until that time has expired, you cannot claim the rights from that directive. Inter-Environment Wallonie Case C 129/96 What are the obligations on MS within the implementation period? They are not obliged to implement the directive immediately, but they cannot adopt measures which run against the objective of the directive. Marshall Case 152/84 – directives do not have horizontal effect When arguing against another natural person, individual – the directive will not have direct effect. Discrimination based on gender. Facts: Mrs M was an employee of Southampton Health Authority. She was dismissed at 60. Men could work until the age of 65. Could she rely on the Equal Treatment Directive in an action against her employer? There was a directive which stated that you could not do this. Domestic law did not grant her any rights, it said 60 and 65. Held: Could she rely on the directive? The COJ says that in her case she could do it, as the authority was considered to be part of the state. The important bit however is that when you are trying to use directive rights against another private individual, that is not possible. E.g. companies would not be doing anything wrong by following domestic law and not EU directives. So, if domestic law says 60 and 65 then that’s the rule which will apply between private persons. “48. According to Article [288 TFEU], the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to ‘each Member State to which it is addressed’. It follows that a directive may not of itself impose obligations on an individual and that a provision of directive may not be relied upon as such against such a person.” Same decision was reached in Faccini Dori Case C-91/92.  

So, directives need to be implemented, are not directly immediate. They have vertical direct effect if: o Sufficiently clear, precise and unconditional (Van Gen den Loos) o Date for implementation has passed (Ratti) o Only used against state or state emanation (Foster v British Gas)

IV.

What is an ‘Emanation’ of the state?

Case of Foster v British Gas Case C-188/90. Was BG part of the state? Not most up to date case. Court says that an emanation of the state is, a body whatever its legal form: - Made responsible by the state, for - Providing a public service under the control of the state and, - Has for that purpose special powers See case of Farrell, C -188/90 [2017 – 10-10] Court of Justice says that fulfilling one of those three conditions should be enough to consider a body as part of the state. Examples of emanations:  Tax authorities – Becker Case 8/81  Local authorities – Fratelli Constanzo case 103/88  The Police – Johnston Case 222/84  Public health authorities - Marshall These are authorities, you do not need to follow the Foster or Farrell test. These have already been decided. If a directive is wrongly implemented, or just not implemented at all (if a directive is implemented correctly, you don’t even look to EU law), look at: - Indirect effect - State liability...