Primacy and direct effect notes-


Craig/de Burca

Doctrine of direct effect applies in principle to all binding EU law. The most problematic issues for many years concerned directives and international agreements. Direct effect in a broad sense means the provisions of binding EU law which are sufficiently clear, precise and unconditional to be considered justicable can be invoked and relied on by individuals in national courts. Other legal mechanisms have been developed by the Courts to give effect to directives which have not been properly implemented or are not being properly applied. The court has interpreted the concept of state broadly for the purposes of vertical direct effect. Secondly there is an obligation on national courts to interpret domestic law as far as possible in conformity with directives after the time limit for implementation has expired. In the period for implementation, all organs of the state must refrain from adopting any measure or interpretation liable to seriously compromise the result prescribed in the Directive. 

The number of qualifications to the rule that directives do not have horizontal direct effect and the difficulties of each exception has made this area of law increasingly complex and difficult to understand. 

Direct effect broad definition (Van Gend) can be expressed as the capacity of a provision of EU law to be invoked before a national court. Confers a legal right on the one who invokes it. 

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Narrower definition can be seen as the capacity of a provision of EU law to confer rights on individuals which they may invoke against national courts. General principles of law can bind private parties. 

Direct effect allowed in Van Gend as ECJ pointed to the fact that citizens were envisaged as having a role to play under the Treaties through the European Parliament. Treaty wasnt just between the states and EU but the states citizens as well. The provision should essentially be self executing and not dependent on any national implementing measure. 

The idea direct effect could apply even where MS possess discretion because the exercise there of could be judicially controlled, represented a significant juridicial shift in thinking about direct effect. Defrenne relaxed Van Gend. Loosend since Van Gend so now is 'a treaty article will be accorded direct effect provided that it is sufficiently clear, precise and unconditional to be invoked by individuals.' Treaty articles can have horizontal effects for private parties.

General principles of law- A6(3) TEU claims that 'fundamental rights as guaranteed by the ECHR and as they result from the constitutional traditions common to MS, shall constitute general principles of the Unions law.' Vertical effect. Charter of Fundamental Human Rights became binding in 2009. Dont know if has horizontal effect as addressed to states. 

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Other types of non binding law are not said to have direct effect but have indirect effect through harmonious interpretation. A288 TFEU- Decisions shall be binding on who its addressed to. Regulations A288 TFEU- says shall be binding and directly applicable in MS. 

Directives and direct effect- directives are binding and will be more effectively enforced if individuals can rely on them. Where necessary conflicting national law should be disapplied. The facts states can choose the method for implementation does not preclude direct effect where the content of the individuals rights can be determined with sufficient precision from the Directive. The existence of discretion wouldnt preclude direct effect. General rule is that direct effect operates from the deadline specified for implementation of the directive. They may have impact before this time as MS are precluded from adopting any measures liable to compromise the result prescribed by the directive. Obligation is on all state entities. 

Enhancing directives legal effect- wide definition of body. Not entirely clear what kind of control the state must have over a body for it to be part of the state. 

Indirect effect- the principle of harmonious interpretation- obligation for national law to be interpreted in the light of directives. Van Colson is the leading authority. 

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Doesnt need to be clear, precise etc for indirect effect. Said to be inherent in the Treaty from A4(3) TFEU. Principle is that it applies when the time for implementation has run out- Adeneler. Marleasing confirmed that an unimplemented directive could be relied upon to influence the interpretation of national law in a case between individuals. Obligation of harmonious interpretation applies even where national law predates the directive and has no specific connection to it. Obligation applies to national legal system as a whole. Court normally leaves it to domestic courts. 

Results of interpretive obligation- cant result in criminal liability but can have negative effects against the individual. Hard to predict the outcomes of these cases. 

Incidental horizontal effects- permits the use of unimplemented directives in certain cases between private parties (Unilever). Crucial factor is that one party suffers a legal detriment and the other party gains a legal advantage from the terms of unimplemented directive. Common factor is that the directive does not itself impose an obligation on another individual and that the obligation is imposed by some other provision of national law. Exclusionary effect argument- that the directive can be invoked in cases between individuals in order to have national law disapplied. 

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Individuals can invoke the general principles of EU law to set aside conflicting provisions of national law even in cases between private parties. Creates problems of legal certainty. 

The basic precept is that while directives cannot have horizontal direct effect, they may do so when benefits under a regulation are made conditional on compliance with a directive. 

State liability- a final way for an individual to enforce a directive despite the prohibition on direct effect is to sue the MS in damages, pursuant to Francovich, for loss caused by the states failure to implement a directive. It is generally mentioned by court as a last resort. 

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Supremacy- had no formal basis in the treaty but was developed by the Court on the basis of its conception of the new legal order. Court rules the aim of creating a uniform common market would be undermined if EU law could be subordinate to national law. 

Validity of EU law can never be assessed by reference to national law. National courts are required to give immediate effect to EU law of whatever rank and to ignore or set aside EU law. Any norm of EU law takes precedent over any provision of national law, including constitutions. The requirement to set aside conflicting national law doesnt entail an obligation to nulify national law, which may continue to apply in any situation which is not covered by a conflicting provision of EU law. Most national courts do not accept the CJEU's view as regards to the supremacy of EU law. While they do accept the requirements of supremacy in practise, most regard this as flowing from their national constitutions, not from the authority of EU treaties, and they retain power of ultimate constitutional review over measures of EU law. 

Supremacy from ECJ's perspective- Declaration of Primacy in the Lisbon Treaty. Doctrine was in the forefront of the Costa decision. Emphasis on the aims and spirit of the EU rather than provisions. Contractarian argument that the MS agreed to this and so should be primary. Functional- that the aims of the treaties cant happen if not primary. Egalitarian- if MS

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law could take precedence over EU law it would lead to discrimination in the application of EU law. 

EU law is supreme to Constitional law. Simmenthal said that it applie even if the national law predated the EU. Prevents adoption of new national law that would conflict with the Union. Can only maintain the conflicting law during the time 'necessary in order to allow such illegality to be remedied.' All courts must give immediate effect to union law without awaiting prior ruling of the constitutional court. Extended in Factortame. Larsy said that the relevant administrative agencies shoudl disapply the rule as well. Simmenthal principle doesnt make national authorities annul the provision of conflicting law, but rather refuse to apply it. 

Declaration 17 on primacy- not in the actual Treaty of Lisbon. An ambiguous declaration, doesnt say if it means all national law or not constitutional or both. In terms of positive law it is clear that the primacy model best explains the case law on incidental horizontal effect. Supremacy has been used to exclude inconsistent national law even though the provision doesnt have horizontal direct effect between parties. 

The supremacy of EU law and the requirement that national courts must ensure its practical effectiveness are established in a consistent line in CJEU cases. 

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There are certain treaty provisions which some may view as a partial dilution of the supremacy principle, such as A351 TFEU which relieves the MS of the obligation to ensure the primacy of EU law in certain circumstances. However these provisions are of limited scope and the basic principle of supremacy articulated by CJEU is a broad and general one. 

Supremacy from the perspective of the pre 2004 member states. MS accept the supremacy of the EU. The CJEU regards the supremacy of EU law as operating against all types of national law, including constitutions, such that any norm of EU law trumps any form of state law. This is not generally accepted by MS. Who defines the allocation of competence between the EU and MS? The CJEU under A19 TEU regards this as its own task, whereas virtually all constitutions or supreme courts determine such questions ultimately by reference to their own constitutions. Germany accepts the supremacy of EU law based on its own constitution. Supremacy isnt unconditional, and cant cover a transfer of an inalienable feature of German constitutional structure. They will not conclude lightly that the EU has gone beyond its competence. Same in Italy, EU law will not be applied if it contravenes a fundamental principle of the Italian Constitution of Human Rights. Based on A11 of the Italian Constitution, not Costa. Do not accept that EU law has supremacy over constitution, and retain ultimate authority on whether EU infringes fundamental rights. 

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UK accepts the principle of supremacy even though there were doubts about its principle of sovereignty. Leading case is Factortame, and decided with the EU. There are limits to acceptance and the European Act 2011 imposes constraints before proprosed Treaty reform and other EU decisions can take effect in the UK. 

Supremacy from the perspective of post 2004 MS- most communist countries joined the EU to provide a secure foundation for democracy and human rights. Most have accepted primacy of EU law although this may be derived from their constitution. 

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