DIRECT EFFECT AND SUPREMACY
PROCEDURE
Article 258 TFEU - Allows the Commission to bring proceedings before the CJEU against a MS
for not fulfilling its Treaty obligations.
Article 259 TFEU - Allows a MS to bring proceedings against another MS
Article 294 TFEU - The ‘ordinary’ procedure by which EU institutions decide on particular
secondary legislation to adopt. This gives the European Parliament a veto.
Article 289 TFEU - The ‘special’ legislative procedure by which secondary legislation can be
adopted by the Council with only a limited requirement to consult the European Parliament.
Note that failing to follow the correct procedure under articles 294 or 289 can be reviewed by
the CJEU.
Principle of Subsidiarity - Actions done on an EU level act on items that cannot be sufficiently
enacted on a member state basis
Principle of Proportionality - the EU shall not act beyond its powers drafted in the treaties.
If the Union makes legislation in an area in which it does not have power, it can be annulled by
the courts.
DIRECT EFFECT AND SUPREMACY
Direct Effect (DA)
- This refers to the ‘capacity of a provision of EU law to be invoked before a national
court’. (van Gend en Loos)
Direct Applicability
- Direct applicability is the doctrine by which a Treaty Article or Regulation is
automatically a part of the member state’s legal system - it does not need to be
implemented, and no additional measures are required.
- Directives are not directly applicable, as they must be implemented in national
legislation. They are only binding on MS “as to the result to be achieved” (art. 288
TFEU), not the means. Directives only have direct effect in giving rise to rights where
they are implemented into national legislation, or where certain conditions are satisfied.
, - NOTE: in the UK the Treaties are actually not directly applicable, as they need
Parliamentary ratification (European Communities Act 1972).
Van Gend en Loos (VGL) established that Treaty Articles are directly effective. The Dutch govt.
Could be sued in their national court for implementing a law that was in contravention of an
Article. It was stated that the EC Treaty constituted “a new legal order of international law” that
imposes both rights and obligations on individuals and the state and confers upon individuals
right which become part of their legal heritage.
Costa v ENEL established that EU law is supreme over national laws - the state cannot choose
not to follow an Article. This was confirmed in Simmenthal: individuals gain rights at the cost of
the member state’s sovereignty.
Conditions for DE of Treaty Articles and Regulations: VGL. The provision must be:
- Clear and Precise: the provision gives rise to identifiable rights, and the obligation must
be set out in unequivocal terms (Coop Agricola Zootecnica); and
- Unconditional: the provision does not depend on other measures and the state has no
discretion in implementation (Coop Agricola Zootecnica).
Treaty Articles: can also have both horizontal (Defrenne v Sabena) AND vertical direct effect
(VGL). This means the obligation can be enforced both against another individual, or against
the state.
- Fundamental Freedom’s laid down in a provision of the Treaty may have direct effect
(Viking Line)
Moreover, treaty articles can have direct effect not only when they impose a negative obligation
(VGL), but also when they impose a positive one (Lutticke (Alfons) v Hauptzollamt).
Recommendations and opinions: cannot have direct effect (Art. 288), as they are not binding
(Grimaldi).
Decisions: can be directly effective and could in suitable cases be invoked by individuals before
national courts (Grad).
- A decision addressed to member states did not impose obligations on private parties
(Carp), but a decision addressed to a private party will bind the addressee (Art 288
TFEU) and, in such cases, the decision may create horizontal direct effect between
private parties.
General Principles: are implicitly treated as having at least vertical direct effect, and that
national courts must set aside conflicting national law (Mangold)
, - The principle of non-discrimination was deemed to be direclty effective (Reyners)
- The principle of equal pay for equal work was capable of direct effect (Art 141)
(Defrenne)
Fundamental Rights: can be invoked vertically (Digital Rights Ireland) but cannot be invoked
horizontally (Association de Mediation Sociale)
- Charter Rights are directly effective (Max Plank)
Regulations: have direct applicability and shall be binding in their entirety (Art 288). They also
have direct effect (Slaughtered Cow) if they satisfy the VGL criteria (sufficiently clear, precise
and unconditional), both vertically and horizontally.
- ‘Regulations operate to confer rights on individuals which the national courts have duty
to protect’ (Munoz)
- Only if a national measure alters, obstructs, or obscures the direct effect or nature of the
regulation that it will constitute a breach of EU law (Amsterdam Bulb)
Directives are different because their implementation is left to MSs. They can occasionally
have direct effect, however they can only have vertical direct effect (van Duyn), not horizontal
(Dori (Faccini); Marshall v Southampton AHA).
- A directive ‘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 and form and
methods’ (Art 288 TFEU)
- A direct effect of a directive could be pleaded on a state, but not against an individual
(Marshall v Southampton)
Conditions for DE of Directives (Art. 288):
1. Sufficiently clear, precise and unconditional (van Duyn);
2. There must have been no discretion in its implementation
3. It must have been incorrectly implemented (Ratti), and this may happen in three
possible scenarios. The directive:
i) has not been implemented at all (Ratti); or
ii) has been implemented partially, or incorrectly (VNO v Inspecteur); or
PROCEDURE
Article 258 TFEU - Allows the Commission to bring proceedings before the CJEU against a MS
for not fulfilling its Treaty obligations.
Article 259 TFEU - Allows a MS to bring proceedings against another MS
Article 294 TFEU - The ‘ordinary’ procedure by which EU institutions decide on particular
secondary legislation to adopt. This gives the European Parliament a veto.
Article 289 TFEU - The ‘special’ legislative procedure by which secondary legislation can be
adopted by the Council with only a limited requirement to consult the European Parliament.
Note that failing to follow the correct procedure under articles 294 or 289 can be reviewed by
the CJEU.
Principle of Subsidiarity - Actions done on an EU level act on items that cannot be sufficiently
enacted on a member state basis
Principle of Proportionality - the EU shall not act beyond its powers drafted in the treaties.
If the Union makes legislation in an area in which it does not have power, it can be annulled by
the courts.
DIRECT EFFECT AND SUPREMACY
Direct Effect (DA)
- This refers to the ‘capacity of a provision of EU law to be invoked before a national
court’. (van Gend en Loos)
Direct Applicability
- Direct applicability is the doctrine by which a Treaty Article or Regulation is
automatically a part of the member state’s legal system - it does not need to be
implemented, and no additional measures are required.
- Directives are not directly applicable, as they must be implemented in national
legislation. They are only binding on MS “as to the result to be achieved” (art. 288
TFEU), not the means. Directives only have direct effect in giving rise to rights where
they are implemented into national legislation, or where certain conditions are satisfied.
, - NOTE: in the UK the Treaties are actually not directly applicable, as they need
Parliamentary ratification (European Communities Act 1972).
Van Gend en Loos (VGL) established that Treaty Articles are directly effective. The Dutch govt.
Could be sued in their national court for implementing a law that was in contravention of an
Article. It was stated that the EC Treaty constituted “a new legal order of international law” that
imposes both rights and obligations on individuals and the state and confers upon individuals
right which become part of their legal heritage.
Costa v ENEL established that EU law is supreme over national laws - the state cannot choose
not to follow an Article. This was confirmed in Simmenthal: individuals gain rights at the cost of
the member state’s sovereignty.
Conditions for DE of Treaty Articles and Regulations: VGL. The provision must be:
- Clear and Precise: the provision gives rise to identifiable rights, and the obligation must
be set out in unequivocal terms (Coop Agricola Zootecnica); and
- Unconditional: the provision does not depend on other measures and the state has no
discretion in implementation (Coop Agricola Zootecnica).
Treaty Articles: can also have both horizontal (Defrenne v Sabena) AND vertical direct effect
(VGL). This means the obligation can be enforced both against another individual, or against
the state.
- Fundamental Freedom’s laid down in a provision of the Treaty may have direct effect
(Viking Line)
Moreover, treaty articles can have direct effect not only when they impose a negative obligation
(VGL), but also when they impose a positive one (Lutticke (Alfons) v Hauptzollamt).
Recommendations and opinions: cannot have direct effect (Art. 288), as they are not binding
(Grimaldi).
Decisions: can be directly effective and could in suitable cases be invoked by individuals before
national courts (Grad).
- A decision addressed to member states did not impose obligations on private parties
(Carp), but a decision addressed to a private party will bind the addressee (Art 288
TFEU) and, in such cases, the decision may create horizontal direct effect between
private parties.
General Principles: are implicitly treated as having at least vertical direct effect, and that
national courts must set aside conflicting national law (Mangold)
, - The principle of non-discrimination was deemed to be direclty effective (Reyners)
- The principle of equal pay for equal work was capable of direct effect (Art 141)
(Defrenne)
Fundamental Rights: can be invoked vertically (Digital Rights Ireland) but cannot be invoked
horizontally (Association de Mediation Sociale)
- Charter Rights are directly effective (Max Plank)
Regulations: have direct applicability and shall be binding in their entirety (Art 288). They also
have direct effect (Slaughtered Cow) if they satisfy the VGL criteria (sufficiently clear, precise
and unconditional), both vertically and horizontally.
- ‘Regulations operate to confer rights on individuals which the national courts have duty
to protect’ (Munoz)
- Only if a national measure alters, obstructs, or obscures the direct effect or nature of the
regulation that it will constitute a breach of EU law (Amsterdam Bulb)
Directives are different because their implementation is left to MSs. They can occasionally
have direct effect, however they can only have vertical direct effect (van Duyn), not horizontal
(Dori (Faccini); Marshall v Southampton AHA).
- A directive ‘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 and form and
methods’ (Art 288 TFEU)
- A direct effect of a directive could be pleaded on a state, but not against an individual
(Marshall v Southampton)
Conditions for DE of Directives (Art. 288):
1. Sufficiently clear, precise and unconditional (van Duyn);
2. There must have been no discretion in its implementation
3. It must have been incorrectly implemented (Ratti), and this may happen in three
possible scenarios. The directive:
i) has not been implemented at all (Ratti); or
ii) has been implemented partially, or incorrectly (VNO v Inspecteur); or
