enforcement of EU law

Weaknesses of judicial origins of enforcement

• lack of clarity

• Internal contradictions

• Hidden reversals

• Issues with foreseeability

National Institution plane

Become EU institutions when acting within the scope of EU law

Procedural plane

EU law enforced through existing national procedural rules

C-268/06 Impact [2008] ECR I-2483, paras 44–46:

principle of equivalence prohibition of discrimination, procedural rules must be no less favourable than those governing similar domestic actions

principle of effectiveness procedural rules must not make the exercise of rights conferred by Community law practically impossible or excessively difficult

Principles plane

Such as (in)direct effect and primacy are the overall rules for engagement between EU and national law

^ examples of legislative harmonisation

Determine what happens when laws diverge or collude with each other

scope of EU law

• subject matter of case covered by EU law act

• rules of national origin implementing EU obligations (usually directives)

• national rules conflict with EU rules typically on 4 freedoms

Must be direct connection between EU obligation and national implementation/conflicting rules

Direct effect

EU provision becomes immediate source of law without translation

Provisions without it cannot be relied on

Van Gend en Loos: treaty provisions my produce direct effect if clear, unconditional, and independent of national measures (or if MSs failed to sufficiently implement it in the given period C-268/06 Impact [2008] ECR I-2483, para 57)

eg Art 34 TFEU prohibition on QRS

can create new rule or exclude application of existing national one

granting individual rights aren’t a condition of direct effect

vertical relationship

legal relation between individual and state

possible where State is acting in ‘private capacity’ 152/84 Marshall, EU:C:1986:84, para 49

if MSs fail to notify technical standards and regulations, they may spill into private relationships

horizontal relationship

legal relation between private individuals

general principle of law are applicable without limitations

candidates for direct effect

charter provisions → abstract/vagueness and need of further implementation

can have vertical DE Akerberg Fransson

but certain articles can be relied on horizontally, issues of predictability since fuelled by secondary legislation

regulations → suitable for either relationship Commission v Italy 34/73/Fratelli Variola

decisions → to member state may produce direct effect Carp, not horizontally directly applicable: ones addressed to individuals could be

directives → may be vertically directly effective if clear, precise, unconditional and implementation passed Marshall

V estoppel argument: if MS failed to implement a directive, cannot rely on failure as defence against individual invoking it

primacy

6/64, Costa v ENEL EU:C:1964:66: measures must be consistent so Treaty laws cannot be overriden by domestic provisions

All EU laws prevail over national, unreserved and absolute

doesn’t affect validity of national law, only sets it aside when conflicting

domestic and EU law influence each other and can only be invalidated by their respective institutions