Week 4 - EU law cases

which principle did Leonesio establish?

direct vertical effect of provisions of regulations

rules of Leonesio

• regulations have direct effect as a consequence of their direct applicability under art. 288(2) TFEU (para 5)

• regulations are capable to create individual rights which the national courts must protect (para 5)

• the individual rights created by a regulation arise when conditions set out in the regulation itself are complied with (para 6 + 22)

• member states may not make the exercise of these rights conditional to further implementing provisions (other than the ones required by the regulation itself) (para 6)

• if a monetary right descends from regulation member states may not withhold the payment by relying on arguments based on national legislative provisions (para 19 + 23)

Leonesio must be read in light of…

Van Gend and Loos

why should leonesio be read in light of Van Gend and Loss?

• some provisions of a regulation may be unclear or conditional

• case rules set in Leonesio may only apply for provisions of a regulation that are clear and unconditional

How to assess direct vertical effect of provisions of a regulation?

• application of Leonesio + Van Gend and Loos

• 1. Is the provision clear (Van Gend and loos)

• 2. Is the provision unconditional (Van gend and loos)

• if clear and unconditional = regulation has direct effect as a consequence of their direct applicability under art. 288(2) TFEU

regulation becomes precise and unconditional when…

read together with other provisions of the same regulation

most provisions of a regulation … direct effect

have

which principle does Marshall establish?

• direct vertical effect of directives

• directives may never have direct horizontal effect, only vertical

what are the requirements for a provision of a directive to have direct effect and be able to be invoked against the state (marshall)

1. The provision must be unconditional

2. The provision must be sufficiently precise

3. The state must have failed to implement the directive on time or must have failed to implement it correctly

where can the main rule of Marshall be found?

para 46

a directive may only have … direct effect

vertical

it may never create obligations on individuals, no direct horizontal effect

what was the first case which acknowledge the direct effect of some provisions of directives if the state failed to transposed the directive within the prescribed period or correctly

• Van Duyn

• not marshall

Simmenthal which principles did it establish

• direct horizontal effect of regulations

• direct applicability of rules of EU that meet all requirements for direct effect

Simmenthal II summary of new rules

• provisions of regulations can also create duties for individuals (regulations can have direct horizontal effect)

• if a provision of EU law has direct effect, the a conficting provision of national law is automatically inapplicable

• if a provision of EU law has direct effect, a national court mist disapplly any conflicting national provision without having to wait for any actions of the national legislator

Simmenthal must be read in light of…

Van gend and loos

Defrenne II

Leonesio

Marshall

what is the relationship between direct effect and direct applicability?

• they are different concepts but their practical consequences are the same

• the logical relationship between direct applicability and direct effect is not the same for all rules of EU law

relationship between direct effect and direct applicability in regulations

• regulations = direct effect is a consequence of their direct applicability under art. 288(2) TFEU

• Leonesio + Simmenthal

relationship between direct effect and direct applicability in treaty provisions

• treay provisions = meet all requirements for direct effect, the direct applicability is a consequence of their direct effect

• Van Gend and Loos + Defrenne II

relationship between direct effect and direct applicability in directives

• meets all marshall requirements for direct effect this provision (not whole directive) is directly applicable

• direct applicability is a consequence of its direct effect

a directive may only have direct effect against…

• the state,

• it may not create obligations on individuals (Marshall + art. 288(3) TFEU)

the unconditionality requirement in marshall…

must be applied differentlu than unconditionality requirement in Van Gend and Loos

because all provisions of directive need implementation in national law

when is a provision of a directive unconditional in marshall?

• if it sets an obligation which is identidiable / determined by the directive itself

• without needing further determination by national law

when does Simmenthal need to be applied

• in cases where an individual may have a right under a regulation against another individual

• in cases where a party argues that a national court has to wait for the intervention of the national constitutional coirt or the national legislator befor eit can disapply a national rule contrary to EU law

disapplication of national law contrary to EU law is only possible if …

all requirements for direct effect are met

which cases may simmenthal be applied to (does not need to)

• in cases where an individual may have a right under a regulation against a public body (direct vertical effect of regulations) (also mention leonesio)

• after having assess that all requirements for direct effect are met if the exam question is about disapplication of conflicting national law