Decentralised enforcement of EU law

decentralised enforcement

• Individuals invoke EU rights before national courts

• National courts apply EU law within domestic legal systems

Dual Purpose of Decentralised Enforcement

Judicial protection of individuals

• Individuals gain remedies not available under national law

Effectiveness of EU law

• Ensures EU law is applied uniformly and not ignored by Member States

Direct Effect

• Van Gend en Loos

• Provision must be Clear + Precise + Unconditional

 Van Gend en Loos

--> Principle: Direct Effect. (Vertical)
--> Ruling: The Community constitutes a "new legal order of international law" for the benefit of which States have limited their sovereign rights. EU law confers rights on individuals that they can invoke directly before national courts.

Facts: Challenge to a duty on imported chemicals which went against the then EEC Article 12

Vertical direct effect

• Individual vs State

• Invoked when State fails to comply with EU law

Horizontal direct effect

• Individual vs Individual

• Common in employment disputes (e.g. worker vs employer)

• Defrenne

Defrenne

• Treaties can also have horizontal direct effect

• Case on equal pay

• Must satisfy direct effect test (clear, precise, unconditional)

Direct effect of CFR

Vertical Direct Effect

• Yes, if clear, precise, unconditional

Horizontal Direct Effect

• Yes

: Cases 569-570/16, Bauer

• Condition created in Bauer: Provision must be mandatory and unconditional

• Because Charter has constitutional status

 

Bauer

Confirmed that the Charter (eg non discrimination) can also have direct horizontal effect once the provisions are mandatory and unconditional.

Confirmed that the right to paid annual leave is a fundamental social right with horizontal direct effect, even against private employers.

Direct effect of general principles of EU law

Vertical Direct Effect

• Yes, if test satisfied

Horizontal Direct Effect

• Possible in some cases (not always clear)

• Often requires the case to fall within scope of EU law

• Example: Non-discrimination principle

  • Mangold → age discrimination enforceable between private parties

: Case 144/04. Mangold

: Case 555/07. Kucukdeveci

direct effect of regulations

• Secondary law

• Capacity for both vertical and horizontal direct effect

• Because:

  • Directly applicable

  • No implementation required

BUT:

• Must still satisfy test (clear, precise, unconditional)

 

direct effect of decisions

• Secondary law

• Capacity for vertical and horizontal direct effect

• Depends on:

  • Addressee (state or individual)

  • Satisfaction of direct effect test

 

direct effect of directives

• Secondary law

• Vertical direct effect only

• No horizontal direct effect

Because

• Directives addressed to Member States, not individuals

• Cannot impose obligations on private individuals and can therefore not be used in court against another private party

• Preserves distinction between directives and regulations

Conditions for vertical direct effect of directives

Directive must be:

• Clear and precise

• Time limit for implementation must have expired

• Basically can have direct effect if satisfy test + time limit for implementation has expired

Rationale:

• Before deadline → directive still conditional

• After deadline → obligation becomes unconditional

: 148/78. Ratti

: 41/74, van Duyn

Ratti

Established that directives can have Vertical direct effect

Van Duyn

Confirmed that directives can have vertical direct effect, if they are clear, precise, unconditional, and the implementation deadline has passed.

Additional Rule of vertical direct effect of directives

Even before deadline:

• States must not take measures that seriously compromise directive’s objective

: Case 129/96, Wallonie

Broad definition of State

• Alternative mechanism to horizontal direct effect on directives

• For vertical direct effect, “state” includes:

  • Public bodies

  • Local authorities

  • State-controlled organisations

  • Nationalised industries

  • Universities

  Purpose: Expand vertical effect to compensate for lack of horizontal effect.

Indirect effect

• Definition in: Von Colson

• National courts must interpret national law in line with directives, in a uniform and consistent manner

• Derived from principle of sincere cooperation (Art 4 TEU)

Scope of indirect effect

• Marleasing

• Cannot create criminal liability retroactively

• Cannot interpret contra legem

  • Cannot distort clear meaning of national law

Marleasing

• Direct effect applies even when national law existed before directive

• Applies to entire national legal system

• Ensures consistent interpretation

• Must ensure the objectives of the treaties are achieved

Incidental horizontal effect

Even though directives lack horizontal direct effect:

• Directive with vertical direct effect may disapply conflicting national law

• This may indirectly disadvantage another private party

• No obligation imposed → still lawful

→ Called …

Principles of state liability

• Individuals may claim damages from the State for breach of EU law.

• Developed in 1990s → general principle of EU law.

 

Conditions for state liability

• EU rule intended to confer rights

• Breach is sufficiently serious

• Direct causal link between breach and damage

Prinicple of national remedies

• Principle of Equivalence

• Principle of Effectiveness

Principle of Equivalence

EU rights must receive same procedural protection as national rights

Principle of Effectiveness

National rules must not make exercising EU rights impossible or excessively difficult