EU Indirect and Direct Effect


State of the Union - Cooperative Federalism

Thu current state of the Union could be called a type of cooperative federalism (Schutze 2009), through both its progressive unification and harmonisation, the union has moved away from the public international, model (thus important principle of national application of EU law became unified, as did the procedures, remedies and international structures of member states) whilst also it still being quite far from a full federal structure. In which a complex federal institutional structure and procedure would be set up and more importantly, the ultimate question of supremacy and final word resolved. The notional escape route taken at this stage is to call the Union either an international organisation sui generis or a federation sui generis depending on the ideological outlook of the observer. At least there is an agreement that the union is a type of sui generis. 

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Van Gen den Loos [1963]

VGL imported a quantity of a chemical from Germany, and was charged a tariff on its import by the Dutch government. This was contrary to the now repealed Article 12 EEC. The question was can a private party invoke such provisions directly in the courts of a signatory party? Despite the objections of intervening member states (Netherlands, Germany and Belgium), as well as going against the AG opinion, the court said yes:

At 12 “the conclusion to be drawn from this is that 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 compromise not only member states but also their nationals. Community law therefore not only imposes obligations on their individuals but it is also conferring upon them rights which become part of their legal heritage”.

In the view of the court, a clear, unconditional prohibition which does not necessitate further implementation by the member states, is capable of producing direct effect in the Member States legal orders. Thus a treaty provision would be directly effective even if the member states did not intend such an idea when signing the treaty.

By opting for an objective test of direct effect, the court cut the cord with traditional public international law, were the intent of the signatories is relevant for the later interpretation of a treaty. By stipulating that EU law is directly effective in all MS legal systems, irrespective of what their individual national constitutions state in relation to the domestic status of international law, the court pre-empted the national choices in that regard. Combining these points, we see the court carved out a new legal order independent of both international law and MS constitutions.

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Direct Effect Operation

First the test for DE is carried out with respect to individual provisions of EU law. Secondly even EU provisions which do not grant any individual subjective rights may be directly effective. DE is concerned with the objective justifiability of an EU provision. Granting individual rights is thus not a condition for direct effect.

-          Subsequent case law of the court has expanded DE to other sources of EU law:

o   VGL and other case law established DE to treaty provisions, invokable in vertical, reverse vertical and horizontal relationships.

o   Regulations were considered DE from the start, Art 288 TFEU is the current legislation for this: shall be binding in its entirety and directly applicable to all member states. Directly applicable means that unless expressly requested by the regulation itself, no national implementing act is necessary (it is immediately applicable). The court has stated that the DE of regulations is presumed (Belgium [2010]). They are also DE in all relationships.

o   Decisions are of two kinds, addressed and non-addressed. An addressed decision is an individual act, stating its addressees (and is binding upon them in its entirety). A non-addressed decision amounts in practice to a legislative act in all but name. DE of a decision is limited to vertical situations.

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Direct Effect of Directives Rationale

The strongest argument for the court to override the text of the treaty was not-articulated in Van Duynbut later on in Ratti [1979], where they developed the estoppel argument: a MS that has failed to implement a directive cannot rely on that failure as a defence against an individual invoking the directive. The argument that no one should be allowed to benefit from their own wrong has universal moral appeal. 

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Indirect Effect

The principle of IE is also known as consistent interpretation, harmonious interpretation or EU-consistent interpretation. It means that there is a duty to interpret, as far as possible, all national laws in light of and in conformity with EU law. It is an important principle for the national application of EU law, and the majority of EU law application is done under this heading.The principle was first articulated in Von Coulson, and then restated in Pfeiffer at para 110-115. The scope of IE is ambitious, as it requires all national law to be interpreted in accordance with EU law by all national authorities. Even national laws adopted prior to the EU legislation.

There are said to be three types of IE:

1.       Weak IE: an EU provision is simply used as a confirming argument for a result which has been reached on the basis of national legal authorities.

2.       Medium IE: an EU provision determines the choice between several interpretive options which are all plausible

3.       Strong IE: national laws are twisted and bent in order to conform. 

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Mangold [2005] Case C-144/04

Because it recognised that equal treatment is a general principle of EU law, Mangold v Helm is significant for three critical reasons. First, it means that a claim for equal treatment is available for private citizens on a horizontal direct effect basis. It is unnecessary to wait for a Directive to have been implemented before making a claim to have caused discrimination. Second, it means that member state and EU legislation, like Directives, may be challenged on the ground that they fail to comply with the general principle of equal treatment. Third, because the court did not limit its remarks to the particular grounds of discrimination presently found in the equal treatment Directives (on sex, race, and disability, belief, sexual orientation and age) it follows that claims against unjustified discrimination on the basis of other characteristics may be possible

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