Nature of EU Law and Direct Effect

Van Gend En Loos [1963]

Established provisions of the Treaty establishing the European Community capable of creating enforceable legal rights. (Doctrine of Direct Effect)
'The Union constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights'
Van Gend En Loos objected to a tariff on import, submitting contrary to Article 12 Treaty of Rome.
ECJ held Article 12 capable of creating personal rights for Van Gend

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Established supremacy of EU law over the laws of its member states.
'The transfer by the Sates from their domestic legal system to the Union legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the union cannot prevail.'

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Located between national and international law
Two theories: monism and dualism
'Monism':International automatically part of national law. When conflict, international 'trumps' national.
'Dualism': international and nations belong to 2 separate legal worlds and international not automatically applied in national courts.Can only be applied by international courts.To be binging in national court, international law must be 'implemented.'
European took 'monist' approach, EU law directly effective in national courts.
Asserted in Van Gend en Loos: 'Article 30 must be interpreted as producing direct effects and creating individual rights which national courts must protect'

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Only provisions that fulfill certain criteria can be applied in a court.
Theoretically courts should only 'apply' law, not 'make' it.
Therefore EU provisions must be 'self-executing': must apply themselves to the facts of the case.
Must be: a) clear and precise, b) unconditional, c) prohibitions
BUT subsequent cases reduced these 3 to ONE criteria: Must be 'justiciable' (must be capable of being applied by judiciary to case).
In practise, ECJ declared wide range of provisions effective, even when ambiguosly worded like Art 49 and 50 TFEU.
But not all treaties directly effective - some only provide framework whilst leaving details to European legislator.

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These are the principle legislative instruments of the EU.
Art 288 (2) TFEU Regulations 'shall be binding in its entirity and directly applicable in all member states'
Directly applicable; broader than direct effect, do not have to be officially adopted by member states before being effective in national legal orders.
'It cannot be accepted that Member States should apply in an incomplete or selective manner provisions of a Regulation so as to render abortive certain aspects of European legislation which it has opposed or which it considers contrary to national interest.' (Commission v Italy)

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From Art 288 it seems Directive not intended to have direct effect in national legal orders
Member states must 'transpose' Directives before they become binding in a national court. There is normally a deadline set out for this transposition.
Once States choose to implement, they are still free as to 'form and manner'.
Directives still bind and oblige States, remedy for failure to fulfill such obligation done through the ECJ. Such action can be brought by Comission or a fellow Member State.
ECJ judgements have extended rights to individuals against member states.
Justification of allowing this direct effect for Directives: 1) their binding effect, 2) their useful effect and 3) existence of preliminary reference system under Art 267 TFEU.
A fourth argument arose in later jurisprudence: 4) estoppel argument (member states stopped from using own failure as a defense)

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Vertical DE's involve individuals asserting their EU rights against a Member State, whereas Horizontal DE's involve individuals asserting rights against other indivudals.
In Horizontal situations, the estoppel argument wont work since it was the Member State that failed to implement the Directive and not the private indivudal.
Marshall v Southampton and South-West Hampton Area Health Authority: '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 against such persons.'
The principle reason against direct effect was that Directives where addressed to the state. But what institutions make up the 'state'?: 'organisations or public bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals.'

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