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Flashcards in Direct Effect - Direct Effect of Directives Deck (78)
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1

What are Directives?

Directives are important instruments of European Law that 'direct' Member States to achieve a particular result without imposing a specific course of action.

2

Where are Directives commonly used?

Directives can be a popular choice in complicated and politically-charged areas of law, such as tax law or banking regulation.

3

What did Article 288 TFEU say about the Direct Effect of Directives?

It said, they 'shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and method'.

4

From the wording of Article 288, were Directives intended to have Direct Effect?

From the wording of Article 288 TFEU, it seemed that directives were not intended to have any direct effects in the national legal orders.

5

How does the wording of Article 288 TFEU suggest there was no intention to give Direct Effect to Directives?

By stating that Directives 'shall leave to the national authorities the choice of form and method' it seemed that Article 288 TFEU suggested that Member States first had to 'transpose' directives before they could be relied upon in national courts.

6

How do Directives grant a degree of freedom to Member States when implementing them?

Directives generally set a deadline for transposition, Member States who decide to implement a Directive were still free as to 'form and method'.

7

Given the degree of freedom granted to Member States by Directives, what can they be considered?

Directives can be considered to be a means for coordinating the adoption of national legislation dealing with European matters.

8

Based on the wording of Article 288 TFEU what impact do Directives have on Member States?

Directives only appear to bind and oblige Member States - they are not capable of being Directly Effective against them.

9

What problem did the ECJ observe with the position that Directives could not have Direct Effect?

The ECJ recognised an issue with this position as where Member States failed to fulfil their obligations under European Law (as provided for by Directives) the inability to rely directly on Directives through Direct Effect meant the only way to remedy the violation was to bring an action to the ECJ.

10

How did the ECJ subsequently address the perceived problem with the lack of Direct Effect of Directives?

Unhappy with the 'international' solution (bringing of actions to the ECJ), the ECJ went its own way. In a number of path-breaking judgments it has allowed individuals to rely on their European rights (provided for in Directives) in national court proceedings.

11

What was said regarding the potential Direct Effect of Directives in the case of Grad v Finanzamt Traunstein?

It was said that 'in cases, where, for example, the [Union] authorities by means of a decision have imposed an obligation on a Member State or all the Member States to act in a certain way, the effectiveness of such a measure would be weakened if the national of that State could not invoke it in the courts' (reference here to the aforementioned efficiency argument).

12

What was said regarding the potential Direct Effect of Directives in the case of Van Duyn v Home Office?

It was said that '[Article 267] which empowers national courts to refer to the Court questions concerning the validity and interpretation of all acts of the [Union] institutions ... implies furthermore that these acts may be invoked by individuals in the national courts'.

13

What were the three main arguments used by the courts to justify the possibility of directives having direct effect?

1. Their binding effect
2. Their useful effect
3. The existence of a preliminary reference procedure (Article 267)

14

What is a fourth argument that became apparent in later jurisprudence?

4. Estoppel Argument - here a member state is stopped from using its own failure as a defence.

15

What was said in the Ratti Case regarding the estoppel argument?

It was said that 'Member States which ha[ve] not adopted the implementing measures required by the directive in the prescribed period of time may not rely, as against individuals, on its own failure to perform the obligations which the directive entails'.

16

When will the ECJ find directives to be directly effective?

While the ECJ, through the above judgements, illustrated that Directives can have Direct Effect this is not always the case, there are a number of conditions to be met for a Directive to have Direct Effect;
1. The Implementation Period must have expired
2. The specific provision must be sufficiently clear and precise
3. The specific provision must be unconditional

17

What is meant by the implementation period for a Directive?

Member States are given a time limit for implementing the provisions of the directive (normally 2 years). If the time limit has not passed, it means that Member States can still transpose any rights derived from European law into national legislation.

18

At what point in the implementation period for a Directive will it be capable of having Direct Effect?

Direct effect can only be invoked once the time limit has passed and the Member State has either (1) failed to implement the directive, or (2) has implemented the directive incorrectly.

19

What is the authority for the Direct Effect of Directives following a failure to implement it or incorrect implementation?

Pfeiffer and Others, Joint Cases C-397-403/01, ECR I-8835, paragraph 103; Becker, paragraph 25

20

What must Member States refrain from doing before the expiry of the time limit for implementation of a Directive?

Even before the expiry of the time limit for implementation, Member States must refrain from taking any measures liable to seriously compromise the result prescribed by the directive - Inter-Environment Wallonie ASBL Case.

21

What is the requirement that the relevant provision be sufficiently clear and precise?

Any provision of EU law (not just directives) must be found to be sufficiently clear and precise in order to be directly effective. It does not have to be 100% clear, but when you read the provision you have to understand who has to do what. This flows from the case of Van Gend en Loos.

22

What is the potential impact of discretion in regards to the clear and precise requirement?

Discretion is key, if a provision gives a lot of discretion to a Member State or institution, the courts may be unable to determine the precise scope of the obligation and thus it may fail to satisfy the clear and precise requirement.

23

What is the requirement that the relevant provision be unconditional?

This means that it (the relevances provision) must not be conditional on any other provision, or any positive action taken by the Member States.

24

Where will a provision fail to meet the unconditional requirement?

A provision of EU law is not unconditional if a Member State has been given the freedom to make its own policy choice - Francovich Case.

25

What additional limitations apply to the direct effect of directives?

1. If a Member State fails to implement a directive, it cannot then invoke direct effect against an individual on the basis that the individual has violated the directive - Kolpinghuis Case.
2. Directives cannot be used by a Member State to aggravate the criminal liability of an individual - Berlusconi Case.
3. Directives cannot be invoked in horizontal situations.

26

What is vertical direct effect?

This is where an individual claims European Rights granted under a directive as against a Member State - the State is above the individual. Vertical Direct Effect is a straightforward (accepted) concept.

27

What is horizontal direct effect?

This is where an individual claims European Rights granted under a directive against another individual - the two individuals are on the same level. Horizontal Direct Effect is. a more controversial concept.

28

How may the four main arguments used by the ECJ to justify the Direct Effect of Directives apply to Horizontal Direct Effect?

In horizontal situations, the estoppel argument will not work, since it was the Member State that failed to implement the directive and not a private individual. However, the other three arguments might still provide strong reasons for accepting the 'horizontal' direct effect of directives.

29

What is the position of the courts on the direct effect of directives?

The Court has consistently declared that directives are not capable of having horizontal direct effect.

30

What was said regarding the horizontal direct effect of directives in Marshall v Southampton and South-West Hampshire Area Health Authority Case?

It was said that 'the binding nature of a directive ... exists only in relation to "each member state to which it is addressed"'.