Summary Probleem 7

Probleem 7 – Nitrogen pollution

Leerdoelen:

Leerdoel 1: What is the principle of primacy of EU law?

Leerdoel 2: What is direct effect? And do EU primary law and general principles of EU law have direct effect?

Leerdoel 3: How does secondary law have direct effect in the national legal order?

Boek 1: Amtenbrink & Vedder, hoofdstuk 2, paragraaf 3, 3.1 en 3.3 p. 51-56 en 62-95

Leerdoel 1: What is the principle of primacy of EU law?

 The principle of primacy: once the hurdle(=horde) of the application of EU law at national level has been
cleared, any substantive(=inhoudelijk) conflict between national law and EU law will be decided in favour
of EU law.
 Simmenthal par. 21.
 Lex posterior and monism and dualism don’t apply to EU law.
 The Court of Justice only discusses national law in general terms and doesn’t consider its internal
hierarchy.
 Exceptions:
 The possibility of provisionally maintaining a rule of national law that is incompatible with EU law.
 Case law concerning the consequences of a situation in which setting aside a rule of national law
on the grounds that it is incompatible with a provision of EU law would produce a conflict with a
different provision of EU law.
 Example: case Wallonie, point V-111.
 Sperrwirkung: EU law in a specific area precludes action by the member states in that area to the
extent that it is incompatible with EU law.
 The effect of EU law can be determined by looking at the substance of the relevant provision of EU law
and the process through which it applies at national level.

Leerdoel 2: What is direct effect? And do EU primary law and general principles of EU law have direct effect?

 Van Gend & Loos: direct effect is the application of EU law in the national legal order and this is a matter of
EU law and not for the member states to decide. Whatever the member states have decided for
themselves as regards a monist or dualist approach, is irrelevant for EU law. This is called the autonomy of
EU law.
 Autonomy of EU law: based on direct applicability and primacy.
 Direct applicability: only concerns the law that applies to a certain situation. It is one of the ways
in which EU law produces effects in the national legal orders.
 EU primary law: autonomous in nature, which is a function of its primacy and direct effect.
 Direct effect:
 Basic condition: a rule of EU law must be sufficiently clear and precise and unconditional.
 Clear: as long as the content of a provision can be identified on the basis of a purely legal
analysis.
 Unconditional:
 Not dependent on any national implementing measure (automatically applicable).
 No reservation on the part of the member states (absolutely applicable).
 A provision of EU law that complies with these criteria can be applied by a national court
without that court taking place of the European or national legislator or the European or
national executive.
 No direct effect where this would require the taking of further measures by the EU institutions or
the member states.
 Vertical relations: EU law is invoked by natural and legal persons against a government agency of
a member state.
 Horizontal relations: EU law is invoked by one private party against another.
 Reverse vertical direct effect: a government agency of a member state invokes EU law against an
individual.
 Van Gend & Loos II-83.