Directives and Primacy:
Van Gend en Loos: Concerning the importation of chemicals between member states. Under Article 12 produced direct effect which "imposes obligations upon individuals and also confers rights upon them". This is clear and unconditional based upon the spirit, general scheme, wording and scope of the treaty and so must be taken up by member states (although it does not have to be further acted upon)

Defrenne: Female Belgian air hostesses were required to retire earlier than men for lower pay. Article 157 TFEU for equal pay was applied despite the fact this this was a broad principle as opposed to conferring individual rights. There seemed to be a relaxation of Van Gends narrow understanding of what is sufficiently precise and unconditional.

Costa v ENEL: there is a permanent limitation to sovereign rights

IHG: Conflict between EC regulations and German constitution meant hat EC law could not be judged against national law. The validity of the Community measure could not be affected by allegations that it conflicted with national law. EU law is only invalid if it has an adverse effect of uniformity and efficacy.

Winner Wetten: The ousting effect that a directly effective provision takes primacy over national law can be suspended under certain occasions.

Inter-Environment Wallonie: A directive on environmental protection had been implemented without the correct procedure of public consultation. As this was done in a way which "strengthened the directive it was allowed until a similar one was implemented through the correct procedure.

Becker: EU law imposed an obligation to exempt credit transactions from turn over tax. Held, whenever the provisions of a directive which is unconditional and sufficiently precise is not adopted within the implementation period, it may be relied upon against any national provision which is incompatible.

Ratti: Directives impose a duty on member states to adopt implementing measures by a certain date, it would be unfair to base judgement on their failure to carry out this obligation. Governments are 'estopped' from denying direct effect of the effectiveness of a directive they have failed to implement.

Marshall: A claim of early dismissal due to age was held to be a vertical claim as the state had acted through the Health Authority.
Note: If this were a horizontal claim, the directive cannot be invoked against a private party.

Faccini Dori: Directives are not capable of horizontal effect as they grant rights upon individuals and so a general vote from member states agreed that a directive may be vertically effective:

it must be possible to identify the content of these rights from the directive however

it must be possible to identify a causal link between the state's failure to implement the directive and the damage suffered by an individual.

However, in certain cases direct effect (conferring rights to individuals) may be overlooked in order to ascertain state liability and claim damages.

Foster & Others: Claimant attempted to bring a case against the state through the British Gas Corporation. The 'notion of state' includes tax, local/ regional policies, public order and safety maintenance and Health Service Authorities. If a claim falls under the notion of state it will amount to vertical direct effect, otherwise it will not succeed.

von Colson: Directives are to be used to help interpretate national law consistently with the aimed objectives.
Incidental effect

Marleasing: All national legislation is to be interpreted in light of EU law, irrespective of whether national provisions were adopted before or after the directive. This may allow horizontal cases to have directives applied "Indirectly".

Angelidaki: when national courts apply domestic law they are to interpretate it based upon the directive whether the law was adopted before or after the directive. This was held to be sensible despite pre-existing law. If consistent interpretation makes one criminally liable whom should not be liable or disproportionately portrays the liability as more serious as it should be, the court may rule as an exception to the duty. The duty of consistent interpretation is to be applied only where the period of transposition for the directive has passed.

Adeneler: Greece was due to have Directive implemented requiring good measures for a fixed contract. The Directive was to be implemented when the time limit of the directive has expired as national courts have an obligation to read law in conformity with a directive from the date of transposition.

CIA Security: breach of the Directive 83/189 procedure to notify the commission and member states of the draft renders the technical regulations inapplicable to individuals (horizontal cases).

Unilever: Olive oil was not labeled in compliance with technical regulations. Because the claim was bought by an individual who had no rights over the regulation the claim failed. National courts are required to refuse to apply technical regulations adopted in a way that goes against the procedure of proposed adoption. This created neither rights nor obligations upon individuals.

Océano Grupo Editorial: a directive may exclude (primacy) or substitute (direct effect) an incompatible national rule with the directive.

Werner Mangold: Lawyer discriminated against employee due to age. Directive 2078 is not a blanket prohibition upon Nation Law and so need not be applied.However, the principle of equal treatment existed separately from the directive. Thus, the discrimination on grounds of age constituted to a general principle of union law and could be applied to horizontal cases.

Kücükdeveci: the prohibition against discrimination against the grounds of age need not be applied where to situation had no relevance to the directive (e.g. if the directive has expired).

Römer: discrimination on the grounds of age reflects the general principle surrounding the general principle of sexual orientation. When a directive is found to enshrine a general principle of law, individuals can rely upon the principle in cases which apply to union law.

Dominguez: The right to pay annual leave cannot be applied directly in horizontal cases. The general principle and directive have vertical effect.

Reaction of the National Courts:
Solange II: The Federal Constitutional Court of Germany asserted a constitutional power of its own to police the application of fundamental rights itself
Brunner: Germany secured the right to ensure respect from EU constitutions in their power
Re Ratification of the Treaty of Lisbon: They also asserted the right to upon Germany's constitutional Identity.

Factortame: European Communities Act is protected against implied repeal- Union law takes precedence over an act of parliament.

Thoburn: If there was an English Measure which contained a rule of guaranteed fundamental/constitutional right over the EU, would it have primacy over an EU act?

There could be no appeal to the ECJ

Open for any individual to bring action.

EC Commission can bring infringement proceeds against resisting member states.

An attempt of reunion and resolution would be made through political proceedings.

If the member state still resists the member sate may be considered to withdraw depending upon their importance and significance in the EU.

The ECJ responds though securing rights by forming general principles of Union Law and took more responsibility for policing the Union's powers.

Treaty establishing the Constitution of Europe would replace all other treaties enforcing coded primacy over the member states. However, this was not passed as France and the Netherlands voted it down.

The Treaty of Lisbon diluted the doctrine of primacy by conditions laid down in case law.

Slovak Pensions: Czech Republic constitutional court declared the EU powers as ultra vires (beyond powers/ without authority) and consequently choose to disapply EU law and apply their own.

Francovich: Italy failed to implement a directive for the proptection of employees in the event of insolvency of their employer. Held, member states are obliged to make good damage on individuals caused by breaches of EU law for which the state can be held responsible (article 4(2) TEU). The advocate general suggested that temporal effect should be limited i.e. judgement does not take place to past, only to present and future. This was rejected as previous case law had already implied state liability.

Brassierie du Pécheur & Factortame:
Claims for damages of EU law are bought to national courts whom must make available certain remedies so long as:

Claimant must show infringed EU was meant to enforce rights on individuals,

Infringement must be sufficiently serious

Causal link must exist between the injury to the person and the infringement.

From Article 340 TEU, the principle of state liability cannot be deduced.

Hedley Lomas: Where to defendant state was not called upon to make any legislative choices and has limited discretion, the mere infringement of Union law may be sufficiently serious to constitute to a breach.

Brinkman: Failure to give give effect to directive within the time limit automatically constitutes to a sufficiently serious breach. Additionally, if damages are not lain down within the time limit this is a breach in itself

Köbler: Infringement by a national court of last resort. If a national court of last resort delivers a decision as a result of which a party is deprived a a right which union law intended them to enjoy and causes them to suffer loss, he can bring proceeding against the case concerned through the principle of state liability.
Res judicata prevents individuals from constantly re-litigating the same decision once it had reached the highest court. This does not apply if one is "re-opening" the new case with a completely separate/new claim.

Annulments:
ERTA: Dispute between Commission + Council as to whether the commission or member states had to right to negotiate a European Agreement with non-member states. When the community implements a common policy the member states no longer have an individual or collective right to undertake obligations with third party/ international countries as this would be incompatible with the uniform application of union law. Only the Community can exclusively negotiate and conclude external agreements, this suggests a limitation upon the member state's autonomous power. Implied powers doctrine; an implied international legal personality can be assumed which seems to conflict with this ruling. Held, all measures adopted by institutions which are intended to have legal force can be bought for an action of annulment.

IBM: A measure can be judicially reviewed with it is a formal legal act and when it is intended to produce legal effects. The measure must bring abut a distinct change in the applicant's legal standing. IBM challenged proceedings against them for breach of EU competition law. An act is open to review if it definitively lays down the position of the commission/council as a conclusion instead of a provisional measure (leading to the conclusion). In this case proceedings were merely preparatory as so did not compromise IBM's rights.

Reynolds Tobacco: There was no distinct change in the applicant's legal position. The applicants were a cigarette company whom were suspected of smuggling cigarettes into the EU. The Commission bought civil proceedings against them in the US. In the Us court the commission was seeking an injunction and damages for lost customs duties and VAT. This did not satisfy the IBM test as starting the legal proceedings did not determine the party's obligations.

Les Verts: french political group sought the annulment of measures adopted by the EU parliament. The court held that one could challenge the EU parliament under what is now Article 263. It would be inconsistent with the spirit of the Treaty for measures adopted by the parliament to produce legal effects vis-à-vis third parties to be excluded from the scope of the action for annulment.

Commission v European Parliament and Council: the European Parliament sought the annulment of Council Decision in regards the surveillance of the sea external borders.
Omega Air: The validity of a regulation restricting the use of aeroplanes at European Airports was questioned. Omega was an aircraft trader, they were developing a programme for engine replacement that would meet with the regulation's noise standards.

Plaumann: Clementine importation; a person is not individual concerned merely because it carries a particular commercial activity which could be practiced by anyone. The clementine importation would affect all importers in the past, present and future. There was nothing to make the claimant particularly concerned.

Inuit Tapitiit Kanatami: The Paumann Formula stated that in order for an act to be of individual concern, the act must affect them in the same way of an addressee of a decision due to attributes particular to them alone. Direct concern = an applicant must show that at the time the act was adopted, the effect it produced on him is substantially certain.

Alacan v Commission: Decision adopted by the Commission addressed to Belgium disallowed importation of aluminium at a discounted rate. Alcan was an aluminium business whom believed this decision affected them. However, because there was no certainty that he would be using imported aluminium, his claim was dismissed. There must be no doubt of the discretion and the direct effect.

Piraiki-Patraiki: Applicants sought annulment of decision authorising France to restrict import of cotton yarn. This was held to go against the free movement of goods. Originally the applicants were not directly concerned as they had no idea whether the French Government were to actually enforce the authorisation. However, because the French government had asked for the authorisation it was assumed that the decision would be applied and so the action was of direct concern. It was also of individual concern of some of the applicants whom had entered into contracts before the decision was adopted- they were a closed class of individuals (the commission should have taken into account the effect upon the parties of these contracts).

Buralux: Court dismissed the challenge to a council regulation on the removal of waste as inadmissible. Contracts existed for disposing of waste from Germany to France. The French authorities adopted an action prohibiting household waste importation.The court upheld that the applicants were not individually concerned as this was not a closed group, it affected everyone within France and Germany whom were in the commercial business of waste disposal despite the fact that they were already in contracts.

UPA: UPA was a Spanish trade association representing Spanish farmers whom wished to bring an action for annulment against the council's decision to introduce new regulations which abolished aid to olive farmers. When bringing action against regulatory acts which do not entail implementing measures, direct concern= a substantial adverse effect on the applicant's interests. It is the responsibility of the member states to establish legal remedies and for national courts to interpretate national law in such a way that allows claimants to bring the procedure forward (now Article 19(1) TEU).

Jégo-Quéré: Challenged a commission regulation which imposed a minimum mesh size for fishing nets. Held, the applicant was not individually concerned under the Plaumann test particularly because no restrictions or obligations were imposed, merely a regulation. However, a remedy must still be bought forward, this must be done by the Member state themselves as opposed to the Commission.

Inuit Tapitiit Kanatami: Measure adopted to restrict trade of seal products under legislative procedure. Regulatory Acts= All acts of general application except for legislative acts (those adopted under both ordinary and special legislative procedure- Article 188 TFEU). As this measure was therefore legislative the applicant must establish direct and individual concern. There was held to be no individual concern as it was expressed in general terms and applied equally to all whom were covered by it.

Microban: Commission decision prevented the use of an additive which the applicants manufactured. This was held to be a regulatory act under Article 263 and did not entail implementing measures. It was also of direct concern to the applicants because it was a restrictive prohibition.

Rutgers: Applicants sought annulment of decision which did not entail implementing measures. Held, under Article 263 this was of general application even through it had been enforced by an Agency as opposed to the Commission itself. However although the applicants had standing the regulatory act was held to not be unlawful. There was nothing wrong with the substance of the act.

	Created by cadhla_corrigan almost 10 years ago

LLB LFEU Note on Case List, created by cadhla_corrigan on 09/05/2014.

Case List