1. DIRECT EFFECT OF EU LAW IN PRACTICE - free movement of persons example -
Nika Bačić Selanec, LL.M. (UMich)
Department of European Public Law
University of Zagreb - Faculty of Law

2. DIRECT EFFECT of provisions of EU law
ability of individuals to invoke a provision of EU law in front of national courts in order to protect their individual rights
VERTICAL situations
individuals invoke an EU law provision against a state that violates their individual rights
REVERSE VERTICAL situations
a state invokes an EU law provision against individuals
HORIZONTAL situations
individuals invoke an EU law provision against other individuals that violate their individual rights

3. Types of EU law provisions
Primary Law
Founding Treaties – TEU, TFEU
Charter of Fundamental Rights
General Principles of Law
Secondary Law
Acts of EU Institutions
Legally Binding: Regulations, Directives & Decisions
Non-binding: Recommendations & Opinions
International Agreements
+ Case Law of CJEU

4. CASE LAW on direct effect
PRIMARY LAW
SECONDARY LAW - REGULATIONS
Van Gend
Variola
Walrave and Koch
Leonesio
Defrenne
Commission v. Italy
Angonese
SECONDARY LAW - DIRECTIVES
PRIMARY LAW + DIRECTIVES
Van Duyn
Kucukdeveci
Ratti
CHARTER
Marshall
Foster (what is a state?)
AMS
Faccini Dori

5. primary law - 26/62 Van Gend
Article 12 EEC must be interpreted as producing direct effects and creating individual rights which national courts must protect.
FIRST ESTABLISHED DIRECT EFFECT of Treaties (primary law)
The wording of Article 12 EEC contains a clear and unconditional prohibition which is not a positive but a negative obligation.
CONDITIONS FOR DIRECT EFFECT: CLEAR + PRECISE + UNCONDITIONAL OBLIGATION
The very nature of this prohibition (negative obligation) makes it ideally adapted to produce direct effects in the legal relationship between member states and their subjects (individuals).
VERTICAL DIRECT EFFECT of Treaties as primary law (individuals → state)

6. primary law - C-36/74 Walrave & Koch
ARTICLE 45 TFEU – FREE MOVEMENT OF WORKERS
(1) “Freedom of movement for workers shall be secured within the Union.”
(2) “Such freedom shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.”
“Article 45 TFEU relating to the abolition of any discrimination based on nationality as regards gainful employment extends likewise to agreements and rules which do not emanate from public authorities .”
“Prohibition of such discrimination does not only apply to the action of public authorities but extends likewise to rules of any other nature aimed at regulating in a collective manner gainful employment and the provision of services.”
“The abolition as between Member States of obstacles to freedom of movement for persons would be compromised if the abolition of barriers of national origin could be neutralized by obstacles resulting from the exercise of their legal autonomy by associations or organizations which do not come under public law .”
paras. 21, 17, 18
VERTICAL DIRECT EFFECT of Treaties as primary law individuals → state
(semi-)HORIZONTAL DIRECT EFFECT of Treaties as primary law individuals → individuals who regulate employment in a collective manner

7. primary law - C-43/75 Defrenne II.
Article 157 TFEU (ex Article 119 EEC) Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. Article 18 (ex Article 12 TEC) Any discrimination on grounds of nationality shall be prohibited (ordinary legislative procedure). Article 19 (ex Article 13 TEC) The Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. Article 20 Charter - Equality before the law Everyone is equal before the law. Article 21 Charter - Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.

8. primary law - C-43/75 Defrenne II.
8. Article 119 EEC (now Article 157 TFEU) pursues a double aim. 9. First, in the light of the different stages of the development of social legislation in the various member states, the aim of article 119 is to avoid a situation in which undertakings established in states which have actually implemented the principle of equal pay suffer a competitive disadvantage in intra-community competition as compared with undertakings established in states which have not yet eliminated discrimination against women workers as regards pay. 10. Secondly, this provision forms part of the social objectives of the community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and working conditions of their peoples, as is emphasized by the Preamble to the Treaty. 12. This double aim, which is at once economic and social, shows that the principle of equal pay forms part of the foundations of the Community. 31. As the Court has already found in other contexts , the fact that certain provisions of the Treaty are formally addressed to the member states does not prevent rights from being conferred at the same time on any individual who has an interest in the performance of the duties thus laid down The very wording of Article 119 shows that it imposes on states a duty to bring about a specific result to be mandatorily achieved within a fixed period. 33. The effectiveness of this provision cannot be affected by the fact that the duty imposed by the Treaty has not been discharged by certain member states and that the joint institutions have not reacted sufficiently energetically against this failure to act .

9. primary law - C-43/75 Defrenne II.
39. The prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals.
(full) HORIZONTAL DIRECT EFFECT of Treaties as primary law prohibition of discrimination individuals → individuals

10. primary law - C-281/98 Angonese
“The Court has also ruled that the fact that certain provisions of the Treaty are formally addressed to the Member States does not prevent rights from being conferred at the same time on any individual who has an interest in compliance with the obligations thus laid. The Court accordingly held, in relation to a provision of the Treaty which was mandatory in nature, that the prohibition of discrimination applied equally to contracts between individuals. (see Case 43/75 Defrenne 2, paragraphs 31 and 37).”
“…Article 45 TFEU on free movement of workers constitutes a specific application of the general prohibition of discrimination (Art. 18 TFEU)”
“Consequently, the prohibition of discrimination on grounds of nationality laid down in Article 45 TFEU must be regarded as applying to private persons as well.”
paras
(full) HORIZONTAL DIRECT EFFECT of Treaties as primary law free movement of workers individuals → individuals

11. regulations – 34/73 Variola
Owing to its very nature and its place in the system of sources of Community law, a regulation has immediate effect and, consequently, operates to confer rights on private parties which the national courts have a duty to protect.
The direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law .
A legislative provision of internal law cannot be set up against the direct application, in the legal order of member states, of regulations of the Community and other provisions of Community law without compromising the essential character of Community rules and the fundamental principle that the Community legal system is supreme.
This is particularly true as regards the date from which the Community rule becomes operative and creates rights in favour of private parties.
The freedom of Member States, without express authority, to vary the date on which a Community rule comes into force is excluded by reason of the need to ensure uniform and simultaneous application of Community law throughout the Community.
REGULATIONS HAVE DIRECT EFFECT, INDEPENDENT OF NATIONAL MEASURES OF RECEPTION

12. regulations – 93/71 Leonesio
In order to apply with equal force to nationals of all the Member States, Community regulations become part of the national legal system applicable within the national territory, which must permit the direct effect provided for in article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.
Budgetary provisions of a Member State cannot therefore hinder the direct applicability of the Community provision and consequently of the exercise of individual rights created by such a provision.
DIRECT EFFECT of REGULATIONS as secondary law individual rights are created when regulation conditions are fulfilled

13. regulations – 39/72 Commission v. Italy (Slaughtered Cow case)
17. By reproducing the provisions of Community regulation in the national law, the Italian government has brought into doubt both the legal nature of the applicable provisions and the date of their coming into force .
According to the terms of article 189 and 191 of the Treaty, regulations are, as such, directly applicable in all Member States and come into force solely by virtue of their publication in the official journal of the Community, as from the date specified in them, or in the absence thereof, as from the date provided in the Treaty.
Consequently, all methods of implementation are contrary to the Treaty which would have the result of creating an obstacle to the direct effect of Community regulations and of jeopardizing their simultaneous and uniform application in the whole of the Community.
DIRECT EFFECT of REGULATIONS as secondary law national measures contrary to the regulation are inapplicable (doctrine of inapplicability of national measures)

14. directives – 41/74 Van Duyn
12. If, however, by virtue of the provisions of article 189 regulations are directly applicable and, consequently, may by their very nature have direct effects, it does not follow from this that other categories of acts mentioned in that article can never have similar effects. It would be incompatible with the binding effect attributed to a directive by article 189 to exclude, in principle, the possibility that the obligation which it imposes may be invoked by individuals concerned. In particular, where the Community authorities have, by directive, imposed on member states the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law. Article 177 , which empowers national courts to refer to the court questions concerning the validity and interpretation of all acts of the Community institutions, without distinction, implies furthermore that these acts may be invoked by individuals in the national courts. It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question in question are capable of having direct effects on the relations between member states and individuals.
DIRECT EFFECT OF DIRECTIVES
Reasons: 1. directives are binding on MS, useful effect only if individuals can invoke them because preliminary questions may be asked on directives, implies that directives may be invoked in front of national courts
CONDITION: nature, general scheme and wording of the provision in question (CLEAR, PRECISE AND UNCONDITIONAL)

15. directives – 148/78 Ratti
22. Consequently a member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.
23. It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the internal legal order of a defaulting member state, must uphold that request if the obligation in question is unconditional and sufficiently precise.
24. Therefore, after the expiration of the period fixed for the implementation of a directive a member state may not apply its internal law - even if it is provided with penal sanctions - which has not yet been adapted in compliance with the directive, to a person who has complied with the requirements of the directive.
VERTICAL DIRECT EFFECT OF DIRECTIVES after the IMPLEMENTATION PERIOD
Reason: MS cannot benefit from their own failure to implement a directive ESTOPPEL
CONDITION: provision is unconditional and sufficiently (clear and) precise

16. directives – 152/84 Marshall
48. With regard to the argument that a directive may not be relied upon against an individual, it must be emphasized that according to article 189 of the EEC Treaty the binding nature of a directive, which constitutes the basis for the possibility of relying on the directive before a national court, exists only in relation to 'each member state to which it is addressed'. It follows that a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied on as such against such a person.
49. In that respect it must be pointed out that where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether EMPLOYER or PUBLIC AUTHORITY. In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Union law.
VERTICAL DIRECT EFFECT OF DIRECTIVES
Reason: ESTOPPEL
NO REVERSE VERTICAL OR HORIZONTAL DIRECT EFFECT?
directives may not be relied on against individuals (do not create obligations for them) LACK OF REVERSE VERTICAL DIRECT EFFECT later clarified in KOLPINGHUIS NIJMEGEN
STATE: PUBLIC AUTHORITY or EMPLOYER

17. directives – C-188/89 Foster
unconditional and sufficiently precise provisions of a Directive could be relied on against organizations or bodies which were subject to the authority or control of the State or had special powers beyond those which result from the normal rules applicable to relations between individuals.
19. The court has accordingly held that provisions of a Directive could be relied on against tax authorities... local or regional authorities... constitutionally independent authorities responsible for the maintenance of public order and safety... and public authorities providing public health services...
20. It follows...that a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a public service under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relation between individuals, is included... among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.
VERTICAL DIRECT EFFECT OF DIRECTIVES (unconditional and sufficiently precise provisions)
DEFINITION OF A ‘STATE’ BODY:
providing public service under the CONTROL OF THE STATE (pursuant to a state measure)
SPECIAL POWERS beyond those usually applicable between individuals

18. directives – C-91/92 Faccini Dori
30. In the absence of measures transposing the directive within the prescribed time-limit consumers as individuals cannot derive from the directive itself a right of cancellation as against traders with whom they have concluded a contract or enforce such a right in a national court. However, when applying provisions of national law, whether adopted before or after the directive, the national court must interpret them as far as possible in the light of the wording and purpose of the directive.
29. Where damage has been suffered and that damage is caused by a breach by the State of its obligation, it is for the national court to uphold the right of aggrieved consumers to obtain reparation in accordance with national law on liability.
27. If the result prescribed by the directive cannot be achieved by way of interpretation, it should also be borne in mind that, in terms of the judgment in Joined Cases C-6/90 and C-9/90 Francovich and Others v Italy [1991] ECR I-5357, paragraph 39, Community law requires the Member States to make good damage caused to individuals through failure to transpose a directive, provided that certain conditions are fulfilled….
NO HORIZONTAL DIRECT EFFECT OF DIRECTIVES (unconditional and sufficiently precise provisions)
HOWEVER:
INTERPRETATION of national law in light of wording and puspose of directives ‘INDIRECT EFFECT’ – later on clarified in Von Colson & Marleasing
STATE LIABILITY FOR DAMAGES caused to individuals by not transposing a directive later on clarified in Frankovich & Brasserie

19. primary law + directives – C-555/07 Kucukdeveci (avoding lack of horizontal direct effect of directives)
21. In that context, the Court has acknowledged the existence of a principle of non-discrimination on grounds of age which must be regarded as a general principle of European Union law (see, to that effect, Mangold, paragraph 75). Directive 2000/78 gives specific expression to that principle (see, by analogy, Case 43/75 Defrenne [1976] ECR 455, paragraph 54).
22. It should also be noted that Article 6(1) TEU provides that the Charter of Fundamental Rights of the European Union is to have the same legal value as the Treaties. Under Article 21(1) of the charter, ‘[a]ny discrimination based on … age … shall be prohibited’.
23. For the principle of non-discrimination on grounds of age to apply in a case such as that at issue in the main proceedings, that case must fall within the scope of European Union law.
24. The discriminatory conduct adopted in the present case on the basis of the national legislation at issue occurred after the expiry of the period prescribed for the Member State concerned for the transposition of Directive 2000/78, which, for the Federal Republic of Germany, ended on 2 December 2006.
25. On that date, that directive had the effect of bringing within the scope of European Union law the national legislation at issue in the main proceedings, which concerns a matter governed by that directive, in this case the conditions of dismissal.'
43. It follows from all the above considerations that European Union law, more particularly the principle of non-discrimination on grounds of age as given expression by Directive 2000/78, must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which provides that periods of employment completed by an employee before reaching the age of 25 are not taken into account in calculating the notice period for dismissal.
EVEN HORIZONTAL DIRECT EFFECT of DIRECTIVES if GIVING EXPRESSION to PRIMARY LAW ? (general principle of non discrimination/other general principles/Charter/Treaty) BUT NO HORIZONSTAL DIRECT EFFECT OF DIRECTIVES?
CONDITIONS:
falling within the scope of Union law – expiry of directive’s transposition period?
directive GIVES EXPRESSION to a rule already inherent in primary law (which has horizontal direct effect)

20. Charter – C-167/12 AMS (rights v. principles)
44. It must also be observed that Article 27 of the Charter, entitled ‘Workers’ right to information and consultation within the undertaking’, provides that workers must, at various levels, be guaranteed information and consultation in the cases and under the conditions provided for by European Union law and national laws and practices. 45. It is therefore clear from the wording of Article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law. 46. It is not possible to infer from the wording of Article 27 of the Charter or from the explanatory notes to that article that Article 3(1) of Directive 2002/14, as a directly applicable rule of law, lays down and addresses to the Member States a prohibition on excluding from the calculation of the staff numbers in an undertaking a specific category of employees initially included in the group of persons to be taken into account in that calculation. 47. In this connection, the facts of the case may be distinguished from those which gave rise to Kücükdeveci in so far as the principle of non‑discrimination on grounds of age at issue in that case, laid down in Article 21(1) of the Charter, is sufficient in itself to confer on individuals an individual right which they may invoke as such. 48. Accordingly, Article 27 of the Charter cannot, as such, be invoked in a dispute, such as that in the main proceedings, in order to conclude that the national provision which is not in conformity with Directive 2002/14 should not be applied. 49. That finding cannot be called into question by considering Article 27 of the Charter in conjunction with the provisions of Directive 2002/14, given that, since that article by itself does not suffice to confer on individuals a right which they may invoke as such, it could not be otherwise if it is considered in conjunction with that directive.

21. Charter – C-167/12 AMS (rights v. principles)
CHARTER HAS DIRECT EFFECT only if the provision contains INDIVIDUAL RIGHTS, not general, imprecise and unclear PRINCIPLES
Accordingly, Kucukdeveci ruling (on „quasi-direct effect” of Directives relying on primary law) would apply only if primary law itself creates individual rights
What is a right/what is a principle?
principle of non-discrimination – right??
workers’ right to information and consultation – principle??

22. Thank you for your attention!
Thank you for your attention!