Direct Effect EU Law PDF

Direct Effect The ability of a piece of EU legislation to be enforced by an individual in a court of a member state. A provision may be capable of direct effect if it is - Clear and unambiguous - Sufficiently precise (the obligation it poses is set out in clear terms) - Uncond...

Direct Effect The ability of a piece of EU legislation to be enforced by an individual in a court of a member state. A provision may be capable of direct effect if it is - Clear and unambiguous - Sufficiently precise (the obligation it poses is set out in clear terms) - Unconditional (its action is not dependent upon further action/direction by national/EU authorities) - Does not give member states clear discretion in application Van Gend en Loos- EU law applies in and of itself. Does not necessarily need to have been transposed into domestic law. Can be either vertical or horizontal Vertical- Between a private party (a natural/legal person) and a member state or public authority/state entity Horizontal- Between two private parties. Defrenne v Sabena (No 2) 1976- Air hostess worked for a company whose policy made female employees retire at 40. She sued on the basis of Article 119 (equal pay for equal work). However, the words work and pay were not defined in the article. Still, the court ruled the claim was sufficiently percise and the airline was in breach of obligations. Confirms employers are obligated to comply with requirements of a treaty article, and others can enforce rights from these directly against the obligated party who has failed to do so. Typically EU treaty provisions, regulations and decisions- capable of both vertical and horizontal Directives- Only vertical Directives also have the additional requirement of the time limit for implementation by member states to have expired. Preliminary References Process 1. When a member state court encounters a question about the interpretation/validity of EU law necessary to resolve a case, it can refer the question to the Court of Justice of the European Union (CJEU) for a preliminary ruling 2. The national court formulates the questions and submits them to the CJEU. Questions must be clear and relevant to case at hand 3. CJEU examines the questions and may request additional information/clarififcations from the national court. The process involves written submissions and/or oral hearings 4. CJEU issues a ruling on the interpretation or validity of the EU law in question. This is binding on the referring court and it must be applied to the case 5. National court then applies the ruling to resolve the case :  5. National court then applies the ruling to resolve the case Matter of EU Law? Yes its a matter of EU law under Article 267 of the TFEU. It ensures consistent application of EU law across all member states Who can make a referral? Any court or tribunal of an EU member state. The body making the referral must meet the following criteria in order to make a referral - Must be established by law - Be permanent - Have compulsory jurisdiction (force of law) - Procedure is inter partes (involves all parties) - Applies rule of law - Is independent Where is there an obligation to refer? Court of Last Instance- If the case involves a question of EU law and the national court is the highest court (meaning no further appeals are possible), it must ask the CJEU for guidance Validity questions- Any court, no matter the level, must ask the CJEU if it has doubts about whether an EU law is valid. This cannot be decided by national courts Primacy/Supremacy Primacy EU law prevails over conflicting member state law. Member state courts must dis-apply domestic law and apply EU law. In combination with direct effect this makes EU legal order suparnational legal order Van Gend en Loos established a new legal order due to conflict between national law (customs duty) and EU law (prohibiting the introduction of new customs duties). Was a case of direct effect but established that EU law can be relied on in national courts Costa v ENEL established the supremacy of EU law over conflicting member state law. Costa, an Italian citizen, challenged the nationalisation of the Italian electricity sector, arguing it conflicted with the Treaty of Rome. The ECJ ruled that EU law takes precedence over conflicting member state law. Based on effet utile (practical effectiveness of EU law) and a contextual reading of the Treaties. EU law v domestic constitutional law Internationale Handelgesellschaft, a German company involved in exporting maize meal, challenged the validity of EU regulation on export licenses, arguing it violated fundamental rights in the German constitution and thus two EU regulations were not valid in Germany. ECJ ruled that the validity of EU measures can’t be judged based on national law, rather, solely based on EU law. Also established that respect for fundamental rights forms an important part of general principles of EU law and laid groundwork for their recognition and protection with EU legal framework. : legal framework. Which courts have the power to disapply national law? Simmenthal case (an Italian company challenged a public health inspection fee imposed by Italy on imported beef, on the basis that it violated EU law on the free movement of goods). In Italy, only the constitutional court has the power to disapply domestic laws. ECJ ruled that national courts must apply EU law in full and set aside any conflicting national law, even if it came after the EU law. Established that national courts do not need to wait for a national law to be repealed/declared unconstitutional by national authorities before disapplying it. Primacy in treaties? Has not been established in any treaties and thus not codified. Instead a non binding declaration concerning primacy sets out the basics. Have national courts accepted primacy? It may not make sense from the perspective of a domestic judge. The ECJ only has one reference point: EU treaties, which can be construed to require primacy. But for domestic courts, their primary reference point is primarily domestic (constitutional) law. And depending on the rules in the member state, EU law may be inferior to domestic law. Germany Germany’s highest court has stated EU law will only be accepted as long as fundamental rights are protected as well as the German Constitution. Germany has insisted core principals of its constitution such as fundamental rights cannot be overridden by EU law. Two limits to the German court’s willingness to accept EU law, based on Federal Constitutional Court case law. Ultra Vires limit- What if EU adopted legislation outside its competences? Such legislation would not be applicable in Germany due to their view on the EU’s authority (from Germany’s perspective, the EU only has the power to adopt legislation because the German legislator to confer the power to EU). Hence if they act outside of their powers, that is not covered by German authorisation and hence not legally binding in Germany. Constitutional Identity Limit- Introduced in the decision on the Lisbon Treaty (2009), if the fundamental rights guaranteed by German Basic law (democracy, the rule of law, federalism, German statehood, human dignity) are not respected by EU law In the 2020 PSPP judgement, Germany’s top court ruled that the ECJ had acted ultra vires in upholding the PSPP and the program violated the German constitution unless justified by proportionality. Other member states such as Italy have seen similarly argued rulings- generally accepting primacy so long as it doesn’t violate core fundamental values and principles of the Constitution. Another example is Poland, who launched a broadside against EU law, arguing against 1. The requirement that the courts of a Member State comply with rule of law requirements 2. The power of domestic courts to disapply the Polish constitution and 3. The power of domestic courts to review the legality of the appointment of judges in Poland. Its worth noting the Polish Constitutional Tribunal is not lawfully constituted. Their case differs : Its worth noting the Polish Constitutional Tribunal is not lawfully constituted. Their case differs from the German approach since Germany generally accepts primacy of EU law. EU can respond with infringement proceedings, Article 7 TEU, and financial sanctions. Judicial Reviews The power of courts of law to review the actions of the executive and legislative branches, i.e to annul an act that was adopted by legislative or executive branches Article 263 Action for Annulment EU institution is alleged to have enacted an illegal act, such as a regulation that violates a fundamental right EU acts may be directly applicable in member states. Thus, the purpose of the annulment is to get the act annulled by the CJEU. A reviewable act is any act intended to produce legal effects. Legal standing/locus standi The ability of an individual or entity to bring an action before the CJEU to challenge the legality of an EU act. There are three categories of applicants Privileged applicants- Includes member states, the European Parliament, the Council, and the Commission. Can always bring an action for judicial review Semi-privileged applicants- Inclues the Court of Auditors, the European Cental Bank (ECB) and the Committee of the Regions. Can bring actions only to protect their rights Non-privileged applicants- Includes individuals and legal persons (e.g busienssses). They face stricter conditions and must prove that the act is of direct and individual concern to them. There is a time limit of 2 months to bring forth an action. Grounds for a judicial review are 1. Lack of competence (when the EU body acts outside of its powers (aka ultra vires), based on the principle of conferral, the EU can exercise powers conferred to it by treaties, but acting outside of these is voidable) 2. Infringement of an essential procedural requirement (when an EU body fails to follow necessary procedures laid out in treaties/other relevant rules such as failing to consult requires bodies, not following voting rules, or not giving adequate reasons for the measure) 3. Infringement of the Treaty or of any rule related to its application (when an EU act violates the provisions of the EU treaties or any other applicable EU law) 4. Misuse of powers (when an EU body uses its powers for purposes other than those for which they were conferred) Thus, a checklist forms for annulment action :  - Is it an action against an EU institution? (can be brought against all EU institutions, agencies, offices, bodies) - Is it a reviewable act? - Does the applicant have standing? - Is the time limit complied with? A legally binding act is needed; regulation, directive or decision. Can be legislative or non- legislative. The substance of the act needs to be looked at. If it would in substance affect the rights/legal position of the applicant, it may be amenable to judicial review. The form the law takes is immaterial so long as it produces a legal effect on a third party. Non privileged applicants have three scenarios for bringing forth action Michaela's 1. If the EU act C Tier at best is addressed EU… directly to the applicant 2. If they can demonstrate the act is of direct and individual concern to them 3. If it has a direct impact on them without needing implementation measures. Individual concern- Plaumann test Based on the Plaumann case against the Commission The applicant must prove the act affects them due to attributes or circumstances that set them apart from all other persons. Specifically, the person must be distinguished in a way that is similar to the addressee of the act. Two situations - Decision addressed to a third party (not the challenger)- challenger needs to prove the decision is of direct and individual concern to them - EU regulation (addressed to the population at large)- challenger can bring an action if its of direct concern to them and does not require any further implementation measures Is Plaumann too restrictive? Especially where no further implementing measures are needed AG Jacobs redefined individual concern- Where the measure has a substantial adverse effect on applicant’s interests. Otherwise; violation of right to effective judicial protection The court refused to follow AG Jacobs and re-affirmed Plaumann because the Treaty has established a complete system of legal remedies Either indirect challenge under Article 277 TEU but will hardly ever be possible Or challenge via national courts and national courts make a preliminary reference. There is a problem; when no implementing national measure, what should the individual challenge? Has the Lisbon Treaty closed the gap? Lisbon Treaty worded it as a ‘’regulatory act’’ but the gap remains for legislative acts, regulatory act is much more narrow and the general scope of the article is unaffected by the Treaty : :