Primacy and direct effect

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Direct effect and primacy intro

Direct effect of Treaty provisions- C26/62 Van Gend en Loos v Nederlandse 1963- 'the union constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights... Union law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.' 

A12 contained 'a clear and unconditional prohibition...'  It's implementation was not dependent on further action by the national legislatures. These features helped make it 'ideally adapted to produce direct effects in the legal relationship between MS and their subjects.' 

There are negative and positive provisions of the Treaty. There is vertical and horizontal effects. The fact an article was addressed to MS didnt mean that individuals couldnt rely on it. People subject to unfair measures need remedies. Directly applicable provisions apply over national law. 

Primacy- International law principle of pacta sunt servanda (agreements must be kept) between the states. 

C6/64 Costa v ENEL 1964- 'The transfer by the States from their domestic legal system to the Union legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible...

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with the concept of the Union cannot prevail.' 

C11/70 Internationale Handelsgesellschaft 1970- Differences between this case and Costa. In IHG the national provisions in this dispute were adopted before entry into force of the Treaty. They had constitutional status. The rules of union law at issue were contained, not in the Treaty itself, but in the acts of the Union institutions. The issue of high national law v low EU law. The lower EU law still took precedence. 

Judgement in IHG- 'recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Union would have an adverse effect on the uniformity and efficacy of Union law. The validity of such measures can only be judged in the light of union law... therefore the validity of a Union measure or its effect within a MS cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State, or the principles of a national constitutional structure respect for fundamental rights must be ensured within the framework of the structure and objective of the Union.' If you allow Germany to judge validity of EU law on its own law you would have to accept that all countries could then do this. 

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Accession to the union led to changes in constitution in many member states. 

C106/77 Simmenthal 1978- 'a national court which is called upon.. to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently.' Had to be possible for EU citizens to raise issues in European court. 

Joined cases C109/97 and C22/97 Ministero delle Finanze v INCOGE 1998- doesnt quash national law but declines to give effect in that case. If you want to say something invalidates your right in constitution, go to Constitutional courts. 

Scope of direct effect and primacy- National adminstrative bodies- local authorities etc. 


  • C43/75 Defrenne v SABENA 1976
  • C409/06 Winner Wetten 2010
  • C41/11 Inter Environnement Wallonie v Region Wallonne 2012
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Legitimacy of courts approach

Rasmussen- 'the Court probably pushed its gap filling activities beyond the proper scope of judicial involvement in society's law and policy making.' Court undermined own legitimacy due to its judicial activism in his view eg Costa v ENEL. 

Luxembourg compromise/practice of consensus- EEC Treaty- Luxembourg compromise- not to use majority voting where any state thought fundamental interest was threatened as caused delays in legislation. ECJ began to do direct effect. 

Establishing common market- 1974 several major rulings to drive forward free market. Dassonville. 

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Direct effect and union acts

Single market programme needed to be adopted by 1992, needed qualified majority in Council.

1970's was a crucial period. Had almost no case law as the institutions weren't interferring. Luxembourg Compromise broken down in 1980's. 

The main types of Union Act in A288 TFEU- regulations, decisions and directives. The institutions have a choice of which one to use. 

Directives- A288- 'a directive shall be binding as to the result to be achieved, upon each MS to which it is addressed, but shall leave to the national authorities the choice of form and methods.' Set out objectives to be achieved by deadlines. 

Direct effect/applicability- self executing quality of legislation, doesnt depend on anyone to implement. 

Vertical direct effect- Individual v State- C8/81 Becker 1982- The Germans hadnt implemented the necessary measures in the deadline. 'wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absense of implementing measures adopted within the prescribed period...

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Direct effect

, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the state.' 

C148/78 Pubblico Ministero v Ratti 1979- 'a MS which has not adopted the implementing measures required by the directive in the prescribed period may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.' If had implemented it, C wouldve been able to rely on it. Not a defence to say cant rely on the directive as hasnt been implemented. 

Rasmussen 'To many a European lawyer this is revolting judicial behaviour.' 

Decision of French Conseil d'Etat in the Cohn Bendit case- individual couldnt rely on directive for an administrative act. Incompatible. What is meant by MS? Capacity state is acting in is irrelevant. Body like an area health authority can be state. 

Horizontal direct effect- individual v individual- C152/84 Marshall v Southhampton Area Health Authority 1986- '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 MS to which it is addressed'. It follows that a directive may not of itself impose obligations on an individual...

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Direct effect

and that a provision of a directive may not be relied upon as such against such a person.' There is judicial resistance to it.' Court wont back track on vertical, but wont go any further. Negotiation between ECJ and national courts. 

Weatherill- 'in return for such clarification and such restraint the ECJ hoped to gain from the national courts an acceptance of that more restricted notion of direct effect- against the state alone. The tactic seems largely to have worked.' 

Defrenne- 'the fact that certain provisions of the Treaty are formally addressed to the MS does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down.' Conflicts with Marshall- some problems with Marshall- too much emphasis on A288, dont bind anyone but MS. C's right may depend exclusively on defendants rights. Assumed boundaries of state were static. 

C91/92 Faccini Dori v Recreb 1994- extending the case law on the vertical direct effect of directives- 'to the sphere of relations between individuals would be to recognise a power of the Union to enact obligations for individuals with immediate effect, whereas it has competence to do so only where it is empowered to adopt regulations.' Reference to immediate effect is wrong, only apply after deadline. Damages application, as postpones point it becomes directly... 

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Direct effect

applicable in each country. 

The Court attempts to mitigate its ruling that directives cannot produce horizontal direct effect- the notion of State- C188/89 Foster and Others 1990- 'a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included in any event among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.' Could C rely on a directive against British Gas- successor to C's former employer who was state owned British Gas Corp. Is this a state? 

C425/12 Portgas- State can use it.

The duty of consistent interpretation- Developed on A4(3) TEU. Now inherent in Treaties. 

C14/83 Von Colson 1984.

C106/89 Marleasing 1990. 

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Direct effect

Joined Cases C378/07- C380/07 Angelidaki 2009- When national courts apply domestic law, they are bound to interpret it, so far as possible, in the light of wording and the purpose of directive concerned. Obligation covers all provisions of national law, whether adopted before or after the directive. Does not require national law to be interpreted contra legem (against the law) inconsistent with the clear terms. Limited by general principles of law, particularly legal certainty and non retroactivity.

Duty of consistent interpretation- cant create criminal liability where it wouldnt have been and cant extend sentences. 

Does not apply in full until transposition has expired. Before then, national courts must not interpret national law in a way 'which might seriously compromise' the capacity of the directive to achieve its objective- C212/04 Adeneler 2006. Less strict than duty of consistent interpretation. 

Start with consistent interpretation then move onto direct effect in problem questions.

Advantages of consistent interpretation- less intrusive than direct effect and more flexible: national court enjoys some discretion. 

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Direct effect

Disadvantages- less effective in protecting EU rights and creates doubts about the effect of national law. (might do in different ways though). 

General principles of law and direct effect- (technical terms meaning fill in gaps of written law)- C144/04 Mangold.

Authority for the application of general principles- 

  • A6(3) TEU
  • A19(1) TEU
  • A263 TFEU, second paragraph- power to review legality of union acts
  • A340 TFEU- liability of union in tort for people who suffer loss because of what union did. 

Examples of general principles- legal certainty, legitimate expectations, proportionality, and respect for fundamental rights. 

Equality/ non discrimination (fundamental principle)- 'This principle requires that similar situations shall not be treated differently unless differentiation is objectively justified.'- C124/76 Moulins Pont a Mousson 1977. 

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Direct effect

May also be infringed by treating in the same way two situations which are essentially different without objective justification. Prohibits both overt or direct discrimination and covert and indirect discrimination which in practise lead to the same result: C61/77 Commission v Ireland 1978- Fishing laws- Commission said that Irish measures to conserve fish discriminated against fleets of other states. Based on objective standards but Irish boats all were under the rules. Indirect discrimination. 

Given specific expression in provisions expressly prohibiting certain forms of discrimination eg A18 TFEU (nationality.) See also A19 TFEU: authorises the Council, within the limits of the Unions powers to take 'appropriate action to combat discrimination based on sex, racial or ethnic origins, religion or belief, disability, age or sexual orientation.' A10 TEU: Union to 'aim to combat discrimination' based on those grounds in 'defining and implementing its policies and activities.' 

Sources of general principles-

  • National laws and constitutional traditions of the MS. 
  • International treaties signed by the MS eg ECHR.
  • Not lowest common denominator. Looks for inspiration for solution to problems. 
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Direct effect

Effect of general principles- 

  • Belong to primary law of Union and have constitutional status
  • May affect the way all provisions of Union law are interpreted and applied. 

Binding on institutions and MS when applying Union law. C144/04 Mangold. Council Directive 2000/78/EC of November 2000 establishing a general framework for equal treatment in employment and occupation. 

Mangold- (contraversial case. Defenders say principle is well established.) 'It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired.' 

Re Honeywell 2011.

C555/07 Kucukdeveci 2010- went back slightly, prohibition an age discrimination rules didnt have to apply where no link to union law, said there was as directive time had run out. 

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Direct effect

C147/08 Romer 2011.

C282/10 Dominguez v CICOA 2012

Council Direct 2003/88 concerning certain aspects of the organisation of working time. 

When directive enshrines general principle of union law individuals can rely on it. Non discrimination is not absolute can be qualified. 

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