eu topic 1 - Supremacy and Direct Effect

  • Created by: zizigdl
  • Created on: 15-11-18 00:23

Van Gend en Loos

They were a transport company from Germany and refusing to pay custom duties that had been increased by Netherlands. Its objection as the duties had increased by 5%.

It was to rely on article 12 of the EEC treaty. This prohibited increase of custom duties.

Problem arose from public international law, which saw treaties as an agreement between states. The treaty couldn’t be enforced in national court unless the treaty said so.

The Dutch court made a reference to court of justice on this matter. A preliminary reference.

The court of justice said yes an individual can rely on EU law in a national court.

Article 12 put an obligation on member states to not increase custom duties and a corresponding custom duty that individuals have a right to not pay increase.

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Rationale provided by the Court of Justice

They reasoned that the wording of article 12 had a clear and unconditional prohibition on member states to refrain from introducing new custom duties. This meant that the member states had an obligation. This obligation was not conditional on them enacting legislature in their national law. It would produce direct effects between member states and their subjects. 

Answer: EU doesn’t just impose obligations but allows you to have rights too. It became a 2 way process. The court of justice said yes an individual can rely on EU law in a national court.

Article 12 put an obligation on member states to not increase custom duties and a corresponding custom duty that individuals have a right to not pay increase.

This means the EU law could have a DIRECT EFFECT. They could lay down rights on national courts. The case laid down the foundation for supremacy of EU law. It was established as a principle in Costa v ENEL

EU law takes precedence as the member states agree to a new legal order in which they forgo their sovereign rights. It emphasises the danger of individual states changing the rights which they agree with in EU law.

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Requirements for direct effect

- Clear

- Precise

- Unconditional

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Regulations/Decisions

  • Regulations:

A regulation is a piece of law that is of binding in its entirety and directly applicable to member states. (secondary)

The court has decided that they can also have direct effect. 

They must be clear and precise, unconditional

May be relied upon against the state (vertical direct effect)

And a private party (horizontal direct effect)

  • Decisions:

Yes decisions can have direct effect. The Vans Gen de loos provisions must be fulfilled

But they can only be relied upon against the party to whom the decision was addressed

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Directives

  • Directives:

Directives are not directly applicable and are binding as the result to be achieved but leave the form and method to the member states. They have to be clear and precise but are conditional as legislation has to be implemented and there is an implementation deadline. You have to check the implementation level – how they implemented it. Correctly? They only have vertical direct effect also.

The difficulty is that directives are inherently conditional thereby failing the Van Gend en Loos test. The court of justice held in the Van Duyn v Home office case that they could have direct effect if they satisfy the Van Gend en Loos criteria (once they are implemented). They justified this saying that it would be incompatible with the binding effect of directives to exclude direct effect. Grati case – the state cannot rely on individuals…

They created indirect effect and state liability, 2 new principles.

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Concept of an ‘emanation of the State’ for direct

An emanation of the state is a certain authoritorial body which acts as an organ of the state and this concept allows directives to be relied up against them and hence direct effect.

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Bipartite Test, Tripartite Test

The bipartite test: have to satisfy just one ‘or’

-Subject to the authority or control of the state

-Has special powers beyond those which result form the normal rules applicable to relations between individuals.

The tripartite test: you have to satisfy all ‘and’

-Responsible for a public service (pursuant to a measure adopted by the state)

-Under control of the state

-Has special powers beyond those which result form the normal rules applicable to relations between individuals.

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The now used Farrell Test

Farrell case (2017) he was injured in a traffic accident and the driver did not have insurance etc. – this led to a change to the bipartite test. And it was decided you only needed to satisfy one. ‘or’

-Legal persons governed by public law that are part of the state in a broad sense such as local or regional authorities

-Subject to the authority or control of a public body

-Required by body to perform a task in public interest and for that purpose have been given special powers.

So now the EU relies upon the Farrell test but the UK still uses tripartite.

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Difference between direct effect and direct applic

Direct effect is when a provision of EU law is applicable to a member state even without it being transposed into national law. It gives rise to immediate rights which can be enforced by individuals with the legal system of member states. (EU law takes precedence over national law)

This differs from direct applicability which means that a provision of EU law can be applicable to a member state without measures being taken to implement it into law.

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