Supremacy and direct effect I
18 important questions on Supremacy and direct effect I
Direct effect; phase 1
- you can enforce law through a public arm or government, this has accorded power to bring infringers to court --> art. 258 TFEU
- you can enforce law through actions brought by private individuals
- you can enforce law by both at the same time
Direct effect; phase 2
The constitutional law of each state party to that treaty traditionally determined the domestic effect of an international treaty -> dualistic and monoistic
Direct effect; phase 4
- the conditions where subtly loosened
- direct effect modified as applied to regulations and decisions as well as treaty articles.
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Direct effect; phase 5
Directives don't meet the original conditions given by Van Gend en Loos, it was doubted if they could have direct effect.
But the CJEU held that they were capable in principle of direct effect, only vertical direct effect.
Direct effect; phase 6
Indirect effect -> even if directives don't have horizontal direct effect, national courts have an obligation to interpret national law to be in conformity with directives.
incidental horizontal effect -> a directive can preclude reliance on a provision of national law that is inconsistent with the provisions of the directive even in an action between private parties. This is premised on the primacy of EU law.
Conditions of direct effect
- Is there direct effect
- sufficiently clear and precise
- unconditional requirement
- something wrong with the implementation
- EHRM Dominguez
- implementation term has passed
- EHRM Dominguez
- What act is it?
- legislative, treaty, directive, regulation, etc.
- What legal relationship
- horizontal -> EHRM Faccini Dori and EHRM Marshall)
- vertical (EHRM Van Duyn)
- reversed vertical (EHRM Kolpinghuis)
Horizontal legal relationship
Horizontal legal relationships are not possible when the act is a directive. Why?
EHRM Marshall --> Directives cannot impose obligations on individuals, it can only impose rights. Because:
- legal uncertainty
- directives need to be transposed
- an individual will be victimized by the state not implementing or not correctly implementing directives -> EHRM Faccini Dori
Vertical legal relationship
Implementation can impose the obligation to a state to implement a directive into national law, but it can also mean that the state needs to take further measures.
Vertical legal relationship is possible with directives, because:
- directives are legally binding. If individuals can rely on them they can be enforced more effectively
- national courts can refer questions to the CJEU, about validity and the interpretation of directives (EHRM van Gend en Loos).
- a member state cannot rely on its own doing (esoppel argument)
Reversed vertical legal relationship
EHRM Kolpinghuis -> no obligations can be put on an individual on the sole ground of a directive
Direct effect; regulations
Regulations will become part of the domestic law of a member state, without needing transposition.
If they are:
- sufficiently clear and precise
- relevant to the situation of an individual litigant
Direct effect; decisions
decisions can have direct effect, despite the fact that art. 249 EC does not make a reference to their 'direct applicablility'
The decision needs to be:
- sufficiently certain, precise
- Unconditional
Criteria for being an organ of the State
- Body needs to provide a public service
- body needs to act under the control of the state
- body has to have special powers
if you are dealing with a definite state organ (ministers, public prosecutor, etc.) you don't have to check the criteria
Triangular direct effect
If a directive has horizontal effect, but it imposes obligations on the state and NOT on private parties, then it is allowed. The consequences that flow out of the obligation to the state, are not consequences/ obligations that flow directly out of the directive (= merely advisory repercussions)
Incidental horizontal effect
there is horizontal effect, but the directive influences the outcome of the case without putting obligations on individuals.
Scope of indirect effect
- obligation of harmonious interpretation even when the national law predates the directive and has no specific connection with it
- it applies to the national legal system as a whole
- the interpretative obligation is 'strong' but doesn't require an interpretation of national law that it can't bear.
- strong, medium and weak indirect effect
- strong: explaining a term in line with EU law
- medium: the options that suit EU law are being chosen
- weak: a national court uses EU law to conform their own reasoning.
Limitations to indirect effect
- There should be a national law
- it cannot be a interpretation contra legem
- against the will and purpose of the domestic legislator
- the interpretation should not be against the general principles of EU law
- criminal liability is never possible
- civil/ administrative liability is possible
Supremacy + three reasons precedence
EU-law has precedence over national law.
Three reasons for precedence
- EU law is special
- member states created a new legal order, this new legal order is separate from the international legal order
- prevents discrimination
- effectiveness
National bodies must apply supremacy doctrine
every national court must, in a case within the jurisdiction apply EU law in its entirety and protect rights that the latter confers on individuals. It must set aside any provision of national law which may conflict with EU law, whether it is primary or secondary law.
It does not require the annulment or invalidation of the national provision, but a refusal to apply it
It does not matter if the national law predates EU law. EU law always prevails.
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