EU LAWS
OUTCOMES
• Gain brief understanding of the
institutions of EU
• Outline the various sources of EU law
KEY TERMS
• Supremacy - EU and Member States
• Direct effect - EU and Citizens of states
• Direct applicability - Laws are automatically
applicable
• Indirect effect
• Horizontal
• Vertical
WHY HAVE DIRECT
EFFECT?
• Observe Treaty
• Federalism
• Rule of Law
• Norms
2 CATEGORIES OF
SOURCES
1 Primary – Treaties which are agreements
between heads of all member states and are
passed with unanimity. They set out
principles and goals.
A member state can take another to court for
breaching a treaty. Cases are brought to the
ECJ.
2 Secondary- Regulations, directives,
decisions.
These set out the principles in the treaty
into practice. These don’t require the
signature of heads of state. They are
proposed by Commission – approved by
Council and Parliament.
TREATIES
These are the most powerful source.
Treaties: These are high level agreements between EU
member states. They are signed by all heads of state and
become law automatically.
Have direct applicability. May have direct effect if law not too
vague. But treaties tend to be broad.
EX The Treaty of Rome (1957), Treaty of Maastricht
(1991),Treaty of Nice (2000), Treaty of Lisbon (2006)
Case- Cowan v Trésor Public [1991] 1 CMLR 328, ECJ
ONLY IF THE RIGHTS
ARE:
Van Gen En Loos (Case 26/62) [1963] ECR 1 of Art
30 TEU (as barrier to EU trade and is a restriction
to trade and ECJ has to protect rights). The ECJ
took a purposive approach
Clear, precise and unconditional
Defrenne v SABENA (43/75 [1976] ECR 455
The right must also be identifiable
KEY CASE – DIRECT
EFFECT AND TREATIES
(ART 45)
Van Duyn v Home Office (Case 41/74 [1974] ECR
1337 – Dutch Scientologist given job of secretary
to UK branch was refused entry to UK.
McCarthy’s case (1980) a female employee was
getting paid less than male. UK court said not
breach of domestic law. But the claimant went to
ECJ and it was a breach of Art 141
REGULATIONS
Regulations made by the Council (with the consent of the
Parliament) or the Commission (within its delegated powers).
They are general and binding, so must be observed in full.
Automatically become law across EU no new laws need to be
made
Direct effect (as detailed) and direct applicability
The Tachographs case – safety on lorries
Council Regulation 1612/68 – free movment of workers
MACMAHON V DES [1983]
CH 227, DILLON J
An Irishman P accepted for a teacher training course in the
United Kingdom sought a declaration that he was entitled to
a maintenance grant and low fees on the same basis as a
British student.
DIRECTIVES
Apply to all member states but have to be transposed into
national law, thus leaving the precise details to each member
state.
Time limits are often set.
Direct effect - They are only binding as to the result to be
achieved.
The usual way of introducing it in UK is via a statutory
instrument.
EU working time directive
DIRECTIVE – CONT
The directive, if sufficiently clear, is directly enforceable
against the state (vertical) an individual only has rights
against the state.
Vertical – Marshall (1986) retire at 62 men 65. Seen as Sex
Discrimination she succeeded on unfair dismissal equal
treatment directive 76/207. Also see Foster v British Gas
(1990) arm of state.
VERTICAL IF:
• Creates obligation
• State fails to honour obligation
• Individual takes action against state
• Covers emanations of state
DIRECTIVES - CONT
They can’t be used by individuals
to sue other individuals.
Individuals also can’t sue private
companies
UNFAIR?
Duke v GEC (1988) employee could not rely on it to sue a
private company
DIRECTIVE – EXAMPLE
1
The Bathing Water Directive 76/160 was implemented before
privatisation; ss.82-84 of the Water Resources Act 1991 and
the Bathing Waters (Classification) Regulations 1991 (SI
1991/1597).
DIRECTIVE – EXAMPLE
2
R v Secretary of State for Transport Ex p Factortame (No.2)
[1991] HL
DECISIONS
These are made and have to be obeyed by particular member
states, individuals or organisations rather than the all
member states.
C-180/96 United Kingdom v Commission [1998] 2 CMLR 1125,
ECJ
The UK brought an action to annul Commission Decision
96/239/EC, addressed to the UK, and banning the export of
any beef products from the United Kingdom. Dismissing the
action. Ban continued
PROBLEM WITH DIRECT
EFFECT AND DIRECTIVES
• Binding as to “result”
• Clear obligations within time limits on state
• Pass all of Van Gen den Loos
• Wide and purposive approach
• Too much choice on form and method
• Only if time limit expired
• What is emanation of state?
• Why can Marshall rely on it but not Duke? unfair
NEW DEVELOPMENTS
Indirect effect
Van Colson (Case 14/83 [1984] ECR 1891 and Harz v
Deutsche Tradax (case 79/83 [1984] ECR 1921
ECJ was creative by interpreting Art 10 (which gives ECJ
duty to fulfil obligations that are binding on national courts in
light of the wording and purpose of a Directive).
Marleasing SA (Case 106/89 [1990] ECR 1-4135 - binding as
to result
STATE LIABILITY
Francovich (case 6 and 9/90 [1991] ECR the government
failed to provide a compensation scheme for workers who
faced insolvency. Thus breach of Directive 80/987. But the 3
conditions must be met:
a) Directive must confer rights to ind
b) rights must be identifiable in the wording (now sufficiently
serious to justify state liability)
c) a causal link between damage and failure to implement