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Who enforces EU law in member states (the institutions)?
Unless provided otherwise, EU law in member states is carried out by the existing national institutions. These institutions include the executive, courts and legislator and all act within the scope of EU law. The Union has no own decentralised agencies within the member states an instead relies on the current institutions of the member states to enforce EU laws.
How are EU laws enforced? (procedural)
Unless said otherwise, EU law is enforced via the current national rules of procedure.
This means that the national institutions must adhere both to the national states and the EU = this can create issues over which one takes priority in certain situations
When making decisions, unless the EU provides otherwise, the default national decision will be to follow the Union
Principles such as direct effect, primacy or indirect effect do not determine which institutions should apply EU law or the procedure of how it should be applied, instead they decide what happens in cases where there are collusions between national and EU law
How do the case say member states should decide whether to apply their national rules or EU rules?
The court states that
a) If the EU has its own procedural rules, they will take precedence over national rules
b) If there are no EU rules on the matter, then its the nations procedural responsibility to enforce the EU law through following the national rules and procedures
c) But, there are two qualifications to such full national procedural autonomy:
requirement of equivalence
requirement of effectiveness
What is legislative unification of national procedures?
This is where regulations provide a specific regime in specific areas of procedure and institutional set-up ie the General Data Protection Regulation No 2016/679
These regulations will cover specific matters and exclude the application of national laws in the same matters ie have to follow the EU law, not national
What is legislative harmonisation?
Legislative harmonisation in the area of national procedures for enforcement of EU law is normally proceeded by directives. These do not replace national procedure laws (but is the idea of creating common standards amongst member states, whilst allowing national variations).
What is the principle of national procedural autonomy?
This is the idea that unless the EU has stated otherwise, its the national procedures which will oversee the enforcement of EU law in its member states. This implied freedom for the member states but this is not the case.
What is the principle of conferral?
This is the idea that the Union can legislative in specified areas which have been allowed by the Treaties. But this limitation is not applied to the national application of EU law and the court can rule on any aspect of national procedure as long as its related to the national enforcement of EU law-based rights.
How are non-harmonised areas of national procedure dealt with? How has this been effected by the Treaty of Lisbon and Charter of Rights?
They are subjected to the requirements that they are of equivalence and/ or effectiveness.
Equivalence = this essentially removes discrimination, which means that national claims cannot be treated more favourably compared to EU law based claims
Effectiveness = this requires that the enforcement of EU law-based claims can’t be excessively difficult or impossible ie where a remedy just simply wouldn’t be available.
Treaty of Lisbon:
This inserted a new provision in Art 19(1) of the TFEU which states that states need to provide remedies which are sufficient so that there is effective legal protection in areas which Union law covers"
Article 47 of the Charter of Fundamental Rights of the EU:
This makes sure that there is a right to an effective remedy and fair trial
When will a national case fall under the scope of being within EU law?
1) When the national authority has decided to directly apply an EU legal source at a national level. This will be because the matter of the case would be covered by an EU law act
2) The national authority has decided to apply rules of national origin, which are however, the national implementation of an EU obligation ie this will usually be a case of directives. This occurs usually when the state is applying national law, but there are EU rules involved in this
3) When national rules begin to conflict an EU law legislative act ie such as one of the 4 fundamental freedoms
What is Art 19(1) of the TEU?
This is the obligation that all member states will have to make sure that effective legal protection is given in areas covered by EU law
What is the principle of direct effect?
This means than an “EU provision becomes the immediate source of law for the national court/ administrator” - Steve Peers and Catherine Barnard, ‘European Union Law’ (2023)
(This means that individuals are allowed to claim rights under EU law and enforce them in national courts)
Direct effect and the case of Van Gend en Loos (1963):
This case first brought about direct effect
The company Van Gend en Loos was based in the Netherlands and imported lots of ureaformaldehyde from Germany
The company disagreed with the duty that was charged by the Dutch Inland Revenue for the import
They believed that the Netherlands had increased the amount of duty that they would have to pay by changing the tariff classification for the ureaformaldehyde.
The company so claimed that this was contrary to the now repealed Art 12 of the EEC which states that “member states shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other”
The legal question was if the international agreement of the EEC Treaty had any legal effects in the states that signed it and can a private party invoke such provisions directly in the member states which signed the treaty?
The Court stated that they could as “Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage”
Its assumed that the member states who signed the treaty did not envisage the idea of direct effect.
What are the conditions of how direct effect can be used, and how has this changed overtime?
In Van Gend en Loos, the court stated that a Treaty provision may allow for direct effects in member states if its:
clear
unconditional so no reservations are allowed on part of the member states
not dependant on later further implementation measures which need to be adopted by the member states
However, this idea began to be altered ie due to the fact that Treaty articles which were reliant on further implementation were involved in direct effect and the idea of direct effect was expanded to other source of EU law ie decisions, directives, regulations
The new formula which courts utilise for direct effect include three conditions:
sufficiently clear and precise
unconditional
the member state failed to implement the directive by the end of the allowed time period or has not implemented it correctly - case of Ratti
The basic test for direct effect is does the relevant EU law provision include an understandable and justiciable rule of behaviour, which can be applied by national authorities?
What may be the outcome of the use of direct effect?
1) A directly effective EU provision may make a new rule which was not previously there in national law and so can be applied to the current case
2) Due to the principle of primacy of EU law, it may lead to the exclusion of the application of a current but contradictory national rule
What are the 3 different types of legal relationships?
1) Vertical = an individual suing the state
2) Reverse vertical = the state suing/ punishing the individual
3) Horizontal = involving just private individuals on both sides
How do treaty and charter provisions come under direct effect?
Treaty provisions:
The case of Van Gend en Loos and later cases established the direct effect of treaty provisions
Treaty provisions may include: free movement of goods, persons, capital, competition law, equal pay
These provisions can be used in any type of legal relationship ie vertical
Charter provisions:
The EU Charter of Fundamental Rights has become part of primary law since 2009
Article 6(1) of the TEU states that the Charter will have the same legal value as the treaties ie charter provisions can be utilised through direct effect against the Union institutions and member states when they implement EU law = can be used for vertical relationships.
Case law by the court has confirmed that direct effect can be utilised in cases concerning horizontal legal relationships
How do regulations come under direct effect?
Regulations are well suited for direct effect and the treaty states that they are directly applicable in member states.
Regulations can be used in any type of legal relationship.
What is the difference between direct effect and direct applicability?
Direct applicability = unless expressly requested by the regulation, there is not need for a national implementing act
Direct effect = whereas this focuses on the justiciability of a provision ie can it be applied by a national authority directly
How do decisions come under direct effect?
Decisions are found in Art 288 of the TFEU. There are two different kinds:
An addressed decision is an individual act and who it specifically applies to. A decision which is addressed to specific individuals other than a member state is binding on the individuals completely
A non-addressed decision does not name who it specifically applies to but does label some general rules.
A decision which is addressed to a member state or multiple may produce direct effect to the individuals in the member state as long as the provisions are sufficiently clear, precise and unconditional
Direct effect of a decision is only applicable to vertical situations ie where an individual is using a directly effective provision of a decision against a member state which was addressed
Case of Van Duyn (1974)
Here the court declared that directives can be vertically directly effective
There was a Dutch national who was refused leave to enter the UK to be employed as a secretary in the Church of Scientology. The UK stated they thought that the activities of the church were socially harmful
Mrs Van Duyn appealed and wanted to rely on the provisions of a directive
The court said that people could rely on a directive’s provisions to show their rights against a member state. But in order for them to do so, the provision of the directive must be sufficiently clear, precise and unconditional and the implementation for the member state transposing (transferring) the directive into the national legal order must have passed
The treaty itself stated that directives are contrasted to regulations as national authorities have the choice of they will implement them
The ECJ ruled that the restrictions on the free movement of workers must be based on genuine reasons related to public policy/ security
So the case affirmed that the EU does allow member states some discretion, the restrictions on free movement would need to meet the standards of necessity and proportionality
What is the estoppel argument?
This is the idea that the member state failed to implement a directive which means that they cannot rely on this failure for a defence against a person who is invoking this directive. If the state had invoked the directive when they were supposed to do they could have chosen how far it wanted it to go etc, but as it didn’t they lost this choice.
How has the estoppel rationale for direct effect been contested?
1) If a member state is unable to prevent an persons reliance on a clear and precise provision of a directive after their period for implementation of it is over, then the member state is prevented from enforcing the non-implemented directive against its own nationals. Therefore, this means that reverse direct effect of directives is excluded
2) The state-centred rationale in the estoppel argument fails to answer the question of whether or not a directive can be directly effective in horizontal relationships between private individuals. The court addressed this issue in Marshall (1986)
Case of Marshall (1986)
Mrs Marshall decided to challenge the compulsory retirement age for women within the UK which was 62, as she claimed this was discriminatory. She wanted to continue working and argued that it was unfair as the retirement age for men was 65.
The legal issue was whether she could rely on the provisions of a directive which prohibits sex discrimination as against her employer. The court stated that:
“The binding nature of a directive” ….. “exists only in relation to each Member State to which it is addressed”
“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 as such against such a person”
Key argument for direct effect of directives not being extended to horizontal situations is that the estoppel argument cannot be stretched to allow justification of direct effect of directives in horizontal situations
What situations can or cannot direct effect not be used in?
When a state is acting private capacity, the relationship will be deemed as vertical, not horizontal ie staff employed by a state run hospital, so they could rely on direct effect of provisions of directives
The court has allowed Member States failure to notify technical standards and regulations to spill over into private relationships, this so effects people who were not to blame and unaware of the failure of the member state
The court did confirm that general principles of law are applicable in horizontal relationships without limits. For example if there was an employment contract made between a person and private company and the person believed that a contract provision constitutes discrimination. As both parties in the contract as private people they would not be able to rely on direct effect. But they could use the general principle of discrimination and would achieve similar results
There’s more recent case law concerning the overall vision of what EU law might be endowed with direct effect. Ie in Poplawski 11 (Case C-573/17) the court confirmed that a provision of EU which isn’t under direct effect can’t be relied on in a dispute under EU law in order to disapply a provision of national law which acts conflicting to it
The court has promoted a vision of direct effect and how this is a way for directives to reach into horizontal relationships
What is indirect effect? (also known as conform interpretation, consistent interpretation, harmonious interpretation, EU consistent interpretation)
This means its “the duty of all national bodies to interpret, as far as is possible, all national law in light and in conformity of EU law” - Steve Peers and Catherine Barnard, European Union Law, (2023)
National law which was adopted before the EU legislation in question must be interpretated in conformity with the EU legislation
Indirect effect includes all of EU and national law
Even acts of the EU which are non-binding in nature ie recommendations may produce indirect effect
This offers an alternative approach to horizontal direct effect of directives
Where was the principle of indirect effect developed?
This idea was developed in Von Colson and Kamann (1984)
A more recent overview of the principles is in Pfeiffer (2004) -
There a duty under Art 10 EC to take all appropriate measurers to make sure the fulfilment of the obligation is binding on the authorities in the member states
What is the scope of direct effect? ie weak, medium and strong
1) Weak indirect effect: the EU law provision is being used as a confirming argument for a result which would be reached using national legal sources. So the EU provision simply gives another authority basis
2) Medium indirect effect: this is where an EU law provision may determine the choice between different interpretations, which are all acceptable
3) Strong indirect effect: this is where the meaning/ wording of national law provisions will be altered to achieve conformity with a EU law provision
This was seen in the decision of the Czech Constitutional Court in the case of European Arrest Warrant (2006)
Art 14(4) of the Czech constitution says that no citizen will be forced to leave their homeland. According to the constitutional court, this does not prevent Czech citizens from being surrendered on the basis of a European Arrest Warrant to other EU member states. But as this is likely to happen against the will of a Czech citizen, this would mean that he would be forced to leave his homeland ie to go to trial.
The Constitutional Court interpreted this Czech Constitution in conformity with EU law. However, when similar issues where faced in Germany and Poland, the court declared that the national constitutions were incompatible with the EU law. There is no clear borderline drawn between instances of strong consistent interpretation and direct effect
What are the limits of the use of indirect effect?
1) Interpretative methods recognised by national law - this means that when national law is interpreted, a national authority will naturally limit itself to the methods of interpretation recognised under their national law
2) General principles of law - this puts a brake on far-reaching interpretative adventures in individual cases. This means that when national courts are interpretating domestic law in line with EU, they aren’t allowed to deviate from fundamental legal principles in their own legal system, so they are unable to interpret national law in such a way that would violate core constitutional values
2) No interpretation contra legem - this means that decision making against the law/ statute is not allowed
What is primacy?
This means that where there is conflict between EU and national law, EU law prevails
This poses more political than legal difficulties
Case of Costa (1964)
Here there was a conflict between Treaty provisions and a Italian statute which nationalised the electricity company of which the defendant was a shareholder. This Italian law was made after the treaty provision. Costa argued that this was a breach of EU law and as the Italian act was made after they joined the treaty, the treaty should get precedent.
Legal issue - Do the treaty provisions produce direct effects and make individual rights that must be protected by the courts?
It was decided that a unilateral member state measure is not allowed to take precedent over EU law
Reasoning - this is because this treaty was not an ordinary international treaty as it creates its own legal system, in which member states become an integral part, so the courts have to apply it. So it would undermine the treaty if the legislative acts of a member state was able to call treaty provisions into question.
= all EU law has priority over all national law
What are the important aspects of the idea of primacy?
1) Primacy of EU law over national law means primacy in application in the specific case. This so does not effect the validity of the national law. The idea of primacy only requires that the conflicting national provision is set aside, but it continues to be a part of the legal system unless its repealed.
2) As seen in Costa, primacy in application is unreserved and absolute, especially to the internal acts of the member states. Its absolute in 2 dimensions: hierarchical and temporal. This includes all EU law ie Treaties, Charter, secondary law. Furthermore, EU law has precedent over subsequent national legislation
3) Primacy of EU law empowers national judges to set aside incompatible national laws. They can do this at any stage of the procedure and despite what the national law states. They do not have to ask the court before they do this. The court did extend this power to all bodies in member states ie this includes national administrators
What is the model response from national courts concerning the idea of primacy?
1) The basis of EU was via the treaties signed by member states. The last word in shaping the union rests with member states. The states simply decided to transfer some competences to the international organisation
2) In a member state, the reason for application of EU law in the territory (incl primacy and direct effect) is that the constitution-maker in the country showed their wish to join the EU
What is state liability?
Liability of the member state for breaches of EU law acts as a example of a more advanced judicial unification of a type of remedy before national courts
main test is Francovich and Bonifaci and requires that:
rule of law is infringed
the content of the rights must be identifiable from the directive
direct casual link between breach of obligation and damage on the injured party
Factortame is an addition which adds on the breach is to be sufficiently serious
Audiolux
Here Audiolux was a minority shareholder in RTL Group who challenged Bertelsmann’s actions after it took control of RTL and delisted its shares. They argued that this shares swap with Groupe Bruxelles Lambert, violated EU law but not offering minority shareholders the same terms as the majority. Key question was if EU law requires equal treatment of the shareholders
EU law requires equal treatment of shareholders in the same position. Audiolux tried to achieve remedies in Luxembourg courts, by arguing that Bertelsmann should have offered them the same terms as the majority shareholders. But as they are both private, they were not allowed to invoke EU directives against Bertelsmann
Audiolux explored indirect effect and the potential use of invoking the Charter of Fundamental Rights to argue discrimination. But the court said theres no general principle of equal treatment of shareholders in EU law that can apply horizontally between private entities
Audiolux tried to consider state liability for Luxembourg’s failure to properly implement the directive. If Luxembourg hadn’t correctly transposed Art 42 of the Directive, they might be able to claim damages for loss endured from the unequal treatment, but the court would need to assess if the breach was sufficiently serious - it was decided that it wasn’t sufficiently serious.
