Conditions
Initial(Van Gend en Loos)
Clear
Negative
Unconditional
Not dependent in implementation by MS
Qualified
DE possible even where MS have discretion, b/c its exercise can be judicially controlled
The need for implementing measures isn’t a bar to DE if substance of provision requires its application
Current
Intended to confer rights on individuals
Sufficiently clear & precise (sets out obl. in unequivocal terms)
Unconditional
Leaves ECJ w/lots of room for manoeuvre
Applicability
Treaty Articles
Van Gend en Loos- MS argued EC is an int. treaty w/states as main actors & individuals shouldn’t be allowed to bypass them by directly enforcing EU law b/fnat.’l courts. ECJ: Treaty Art. have DE – 3 reasons
Textual - Art 177 + Preamble - suggest MS acknowledged in the Treaty the authority of Comm. law which can thus be invoked by individuals b/f national courts
Teleological - EC constitutes new legal order, creating obligations for & conferring rights on individuals + strengthened enforcement by way of dual vigilance
Consistency - w/out DE, reception of EC law into MS wouldn’t be uniform but depend on nat.constit. orders
Regulations(Art 288TFEU)
Decisions
Art 288 + can have HDE, if sufficiently clear, unconditional & precise
Directives
Art 288 – binding as to the result but MS have a choice as to method and form fails criteria but has DE
Justifications
Very common form of lawmaking – DE necessary
Easy for states to default – implementation, time limit etc.
Exclusion of DE for directives would be incompatible with Art 288 req. of binding nature
Hartley – unsound; possible to be binding on int. level w/out individual enforcement in national courts
Directives are more effective if enforceable by individuals relying on them + effectiveness to EU law
MS shouldn’t be able to rely on own failure to properly implement in refusing to recognising binding DE of directive when pleaded against them (Ratti)
very strong – like equity: shouldn’t profit from own wrong
tends towards limiting DE to vertical situations (state/individual, not individual/individual)
limits DE to post implementation
requires that where implementation is to individual’s detriment, DE shouldn’t apply
Vertical DE
Not precluded, even if application of Directive against MS will lead to adverse consequences for the individual
Horizontal DE
Initially = no HDE
DE to be pleaded only against the state, not individuals
Justifications
Individuals have other avenues for securing their rights (e.g. Francovich state liability)
effectiveness questionable – hard to show actual loss!
Art 288 provides binding nature of Dir. exists for each MS to which it’s addressed, so it can’t impose obl. on individuals or be relied upon against them
Art 288 says no such thing – merely, MS is bound where Dir. is addressed to it
Contrast this textual faithfulness w/ECJ’s attention to effectiveness in Van Gend
HDE of Dir. would erode distinction b/w Regs& Dir. giving legal impact to the latter even w/out implementation
This is happening anyway
Distinction b/w Regs& Dir. is premised on the choice which MS have re implementation – HDE wouldn’t take it away but merely emphasise consequences which flow from non implementation
HDE of Dir. would jeopardise legal certainty – many of Dir. details aren’t fleshed out
Unfinished nature of obl. is an argument against VDE & HDE alike
Corresponding increase in uniformity is a kind of certainty
Directives are now rather detailed anyway
Ways of circumventing “no HDE” rule
Broad definition of state
Distinction b/w VDE & HDE required ECJ to determine meaning of state broad view
Marshall – C relied on provisions of Dir. against Health Authority as part of state
Foster v British Gas– ‘state’ = central bodies of govt. + other bodies w/special powers & privileges over and above those possessed by ordinary citizens
Craig & DB: unusual inverse principle of state or vicarious responsibility
Problems:
Degree of control may vary significantly – threshold is unclear
Why should a private company w/minimal state control bear resp. for its failure
Connection b/w control & responsibility under Dir. is far from clear
ECJ’s justification: a price to be paid by an industry for powers given to it by MS is that it should be subject to duties which flow from Directive
Me: strength of justification depends on how broad ECJ is prepared to define the ‘state’ – the broader the definition, the less persuasive its justification.
Principle of harmonious interpretation (indirect effect) - nat. courts’ obligation to interpret within their jurisdictional remit both autonomous & implementing provisions of nat. law in light of wording & purpose of Dir. to ensure effectiveness of EU law
Von Colson – equal treatment Dir. relied on by Cs for unlawful sex discrimination wasn’t sufficiently precise to guarantee a specific remedy but nat. court had obl. to interpret it in light of Dir.’s aim. ECJ: MS’s obl. pursuant to Art 4 to take all appropriate measures to ensure fulfilment of Dir. objective is also binding on the courts. Obligation is strong: derived from Art 4(3) TFEU + inherent in Treaty
Positive obligation of harmonious interpretationapplies only after time limit for implementation of Dir. has expired
but nat. court in the mean is under a negative obligation to refrain from measures liable to compromise the objective
Obl. also applies in a horizontal case between private parties + where nat. law predates the Dir./has no specific connection with it
Marleasing – C company brought a claim against D company to have its Art. of Association declared void b/c company created solely for purpose of defrauding/evading creditors. Spanish Civ. Code provided for ‘lack of cause’ as a ground for nullity of company but Dir. didn’t. ECJ: D could rely on provisions of unimplemented Dir. to preclude declaration of nullity other than on...
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