1. EUROPEAN UNION LAW AND INSTITUTIONS 3
Biancamaria Raganelli
Università degli Studi di Roma Tor Vergata

2. Topics and case law Direct applicability and direct effect PRIMARY LAW
VAN GEND EN LOOS (1963)
DEFRENNE v. SABENA
FAMILIAPRESS v. BAUER
2 Direct applicability and direct effect SECONDARY LAW
VAN DUYN v. HOME OFFICE
FOSTER V. BRITISH GAS
3. NO HORIZONTAL DIRECT EFFECT
FACCINI DORI v. RECREB
FRANCOVICH
4. INCIDENTAL HORIZONTAL DIRECT EFFECT
CIA SECURITIES v. SIGNALSON
Unilever italia v. Central Food
5. INDIRECT EFFECT
VON COLSON
WEBB CASE

3. CONSTITUTIONAL THEORIES IN INTERNATIONAL LAW
DOMESTIC LAW VERSUS INTERNATIONAL LAW

4. DUALIST APPROACH INTERNATIONAL LAW VERSUS NATIONAL LAW
A State that requires a legislative act to incorporate an international Treaty into its legal order is said to have a dualist approach
Traditionally U.K., Belgium, Germany and Italy

5. MONIST APPROACH INTERNATIONAL LAW BECOME PART OF DOMESTIC LAW
States whose Constitution permits automatic reception of international law into its national law are said to exhibit a monist approach to international law.
France and The Netherlands are traditionally monist States.

6. CONSTITUTIONAL THEORIES IN INTERNATIONAL LAW
MONISM International law become part of national law
AUTONOMOUS LEGAL SOURCES OF DOMESTIC LAW
International law is incoporated via the Constitution.
DUALISM International law (law between States) is separate by domestic law (law within the State) –
INTERNATIONAL TREATIES ARE BINDING ON STATES NOT IN THE STATES
EU LAW HAS NO DIRECT EFFECT
Need to be validated by a special parliamentary command.

7. ECJ power of interpretation in preliminary rulings
Legal basis
Art. 288 TFEU
To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
172 Consolidated Treaties
C 83/172 EN Official Journal of the European Union
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 of form and methods.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
Recommendations and opinions shall have no binding force.
Art. 267 TFEU
ECJ power of interpretation in preliminary rulings
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union

8. Direct applicability
Direct applicability talks about whether an EU law needs a national Parliament to enact legislation to make it law in a Member State.
EU Treaties and EU regulations are directly applicable. They do not need any other national acts to make them into law. Therefore, once a treaty is signed or a regulation is passed in Brussels by the Council of Ministers it instantly becomes applicable in the member State.
EU directives are not directly applicable. Directives in essence tell member states to do something therefore, when passed they need a piece of legislation to make them into national law.

9. Direct effect
Direct effect refers to whether individuals can rely on the EU law before domestic Courts. 
2 types of direct effect:
Vertical direct effect: you can use EU legislation against a MS.
Horizontal direct effect: you can use EU legislation against another individual.

10. VAN gend en loos case ECJ statement european legal order is a new legal order INDIPENDENCE OF EUROPEAN LEGAL ORDER FROM CLASSIC INTERNATIONAL LAW

11. facts
Van Gend en Loos, a postal and transportation company, imported urea-formaldehyde from West Germany to the Netherlands.
The Dutch customs authorities charged them a tariff on the import.
Van Gend en Loos objected, submitting that the tariff was contrary to EC law.
Article 12 of the Treaty of Rome (now replaced by Article 30 TFEU) stated: “ Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.

12. facts
Van Gend en Loos paid the tariff but then sought to retrieve the money in the national court (Tariefcommissie). This made a request for a preliminary ruling to the European Court of Justice, asking whether the then Article 12 of the Treaty of Rome conferred rights on the nationals of a member state that could be enforced in national courts
National court argued: the importers were obviously not parties to the Treaty.
Advocate General indicated that some provisions of the Treaty could have "direct effect" (that citizens could rely on them) but that Article 12 was not one of them.

13. Case law van gend an loos
EUROPEAN LEGAL ORDER IS A NEW LEGAL ORDER
1) European Treaties create rights and obligations directly on people
2) Individuals were subjects of EU law.
3) E. law would be directly applicable in the national legal orders.
4) It is to be enforced in national courts despite the parallel existence of an international enforcement machinery.

14. PRINCIPLE OF DIRECT EFFECT
Direct effect is the principle of European Union law according to which provisions of Union law may, if appropriately framed, confer rights on individuals which the Courts of MS of the European Union are bound to recognise and enforce.

15. ORIGIN AND EVOLUTION Not explicitly stated in any of the EU Treaties
The principle of direct effect was first established in relation to provisions of those Treaties by the ECJ (Van Gend en Loos).
Direct effect has subsequently been loosened in its application and the ECJ has expanded the principle: it is capable of applying to virtually all of the possible forms of EU legislation.

16. REQUIREMENTS NOT all EU law could be enforced by national courts.
The norm has to be justiciable and executable: capable to being applied by a public authority.
When a EU provision leave a margin of discretion to the MS, that provision has not direct effect.

17. DISTINCTION DIRECT APPLICABILITY DIRECT EFFECT
WIDER – internal effect: Direct applicability of a European norm within domestic legal orders without the need of an internal act
NATIONAL AUTHORITIES HAVE TO APPLY EU LAW
DIRECT EFFECT
Individual effect of a binding norm in specific cases
The norm can be invoked in front of a domestic Courts.

18. Primary and secondary european law
PRIMARY LAW
A. FROM STRICT TO LENIET TEST
B. VERTICAL AND ORIZONTAL EFFECT
SECONDARY LAW
A. DIRECT EFFECT OF DIRECTIVE B. THE NO HORIZONTAL DIECT EFFECT RULE C. LIMITATION TO THE RULE D. EXCEPTION TO THE RULE

19. Primary law A. FROM STRICT TO LENIET TEST
B. VERTICAL AND ORIZONTAL EFFECT

20. Ecj: primary law has direct effect
1. CLEAR:
2. UNCONDITIONAL:
2 a. AUTOMATIC: it would not depend on subsequent positive legislation
2 b. ABSOLUTE: not qualified by any reservation on the part of the State
3. not dependent on any national implementing measure

21. VERTICAL AND HORIZONTAL DIMENTIONS
In Van Gend en Loos it was decided that a citizen was able to enforce a right granted by European Community legislation against the State - the question of whether rights could be enforced against another citizen was not addressed.
In Defrenne v. SABENA, the European Court of Justice decided that there were two varieties of direct effect: vertical direct effect and horizontal direct effect, the distinction drawn being based on the person or entity against whom the right is to be enforced.

22. facts
A woman named Gabrielle Defrenne worked as a flight attendant for the Belgian national airline Sabena.
Under Belgian law, female flight attendants were obliged to retire at the age of 40, unlike their male counterparts. Defrenne had been forced to retire from Sabena in 1968.
Defrenne complained that the lower pension rights this entailed violated her right to equal treatment on grounds of gender under article 119 TEC, (now Art TFEU)

23. Judgement
The ECJ held that article 119 TEC was of such a character as to have horizontal direct effect and therefore enforceable not merely between individuals and the government, but also between private parties.
Article 157 TFEU (119 TEEC, 141 TEC) was invoked which stated "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"

24. The lenient test
A provision has direct effect when it is capable of being applied by a national court.
Direct effect simply means that a norm can be invoked in and applied by a Court.

25. Case law mangold
Also an unwitten and vague general principle of European law could have direct effect (rule of law).

26. Secondary law

27. Direct effect and secondary legislation
The application of direct effect depends on the type of act:
Regulations always have direct effect. Article 288 TFEU specifies that regulations are directly applicable in EU countries. ECJ clarifies in the judgement of Politi of 14 December 1971 that this is a complete direct effect;
Decisions may have direct effect when they refer to an EU country as the addressee. ECJ therefore recognises only a direct vertical effect (Judgement 10 November 1992, Hansa Fleisch);
International agreements: in the Demirel Judgement of 30 September 1987, ECJ recognised the direct effect of certain agreements in accordance with the same criteria identified in the Judgement Van Gend en Loos
Opinions and recommendations do not have legal binding force. Consequently, they are not provided with direct effect.

28. Line of jurisprudence
Under certain circustance DIRECTIVE HAVE DIRECT EFFECT and entitle individuals to have their European rights applied in national courts.

29. SUMMARY
The directive is an act addressed to EU countries and must be transposed by them into their national laws.
However, in certain cases the ECJ recognises the direct effect of directives in order to protect the rights of individuals.
Therefore, the Court laid down in its case-law that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise and when the EU country has not transposed the directive by the deadline (ECJ, 4 December 1974, Van Duyn).
However, directives can only have direct vertical effect (ECJ, Foster v British Gas, 1990).
Directives may not be cited by an EU country against an individual (ECJ, 5 April 1979, Ratti)

30. CIRCUMSTANCES OR CONDITIONS
Temporal limitation:
DIRECT EFFECT WOULD ARISE AFTER A MEMBER STATE HAD FAILED TO PROPERLY IMPLEMENT THE DIRECTIVE
Normative limitation:
ONLY VERTICAL DIRECT EFFECT in relation to State authorities - No horizontal direct affect rule

31. Vertical Direct Effect of Directives
If a State fails to IMPLEMENT a directive, the citizen can still use the directive before a Court if:
the directive is sufficently clear - Van Duyn v Home Office (1974) –
the claim is against the State or a State organisation – Foster v British Gas (1990).

32. NO-HORIZONTAL DIRECT EFFECT RULE
LIMITATION TO THE RULE: the wide definition of State (actions)
Vertical affect apply to
a) Private parties exercising public functions
b) Public authorities engaged in private activities
EXCEPTION TO THE RULE: incidental direct effect
Direct horizontal effect between private parties
CIAsecurities v. Signalson and Securitel
Unilever Italia v. Central Food

33. The no-horizontal-direct-effect rule
Dori case
Ms. Dori tried to cancel a contract with a private company in a train station in Milan. She tried to implement the European directive that allowed contracts to be cancelled that were concluded outside business premises, but Italy had not implemented the directive.
The Court found that a private party could use an unimplemented directive against another private party.

34. Arguments for the no-horizontal-direct-effect rule
1. “textual argument” - A directive is binding in relation to each Member State to which it is addressed.
2. “estoppel argument” – The State, not individuals, is responsible for the non-implementation of directives, so direct effect is not extended to the individual.
3. “systematic argument” – If directives were granted horizontal direct effect, the distinction between directives and regulations would disappear.
4. “legal certainty” – directives are not published and therefor they may not impose obligations on those to whom they are not addressed.

35. compensation If a State fails to introduce a directive
The citizen cannot use the directive in court unless the claim is against the State or a State organisation (unless an incidental effect)
It may still be possible to sue the relevant Government for any loss caused by its failure to implement the directive under the Francovitch principle.

36. AN exception to the rule: incidental horizontal direct effect
In some cases a directive can directly Affect horizontal relations between private parties.
CIA Security v. Signalson and Securitel
Unilever Italia v. Central Food

37. INCIDENTAL DIRECT EFFECT
Incidental effect is a concept in EU law that allows the use of INDIRECT EFFECT OF EU DIRECTIVES IN PRIVATE LEGAL ACTIONS.
While an individual cannot be sued for failure to comply with an EU directive, The State’s failure to comply can be an incidental factor in a suit against an individual, where it will not impose legal obligations upon them.

38. Direct effect- HORIZONTAL incidental direct effect
HOR. INCIDENTAL EFFECT
NATIONALS CAN INVOKE RIGHT AND OBBLIGATIONS GIVEN BY EUROPEAN LAW IN FRONT OF NATIONAL COURTS: DIRECT APPLICATION OF DIRECTIVES
NATIONALS CANNOT INVOKE RIGHT AND OBBLIGATIONS GIVE BY EUROPEAN LAW (NO LEGAL OBBLIGATIONS), BUT
The State’s failure to comply can be an incidental factor in a suit against an individual: NATIONAL LAW CANNOT APPLY
INCIDENTAL APPLICATION OF THE DIRECTIVE

39. Indirect effects: the doctrine of consistent interpretation
European provisions that lack direct effect may still have certain indirect effects in the national legal orders.
Doctrine of consistent interpretation:
GENERAL DUTY ON NATIONAL COURTS AND ADMINISTRATIONS TO INTERPRET NATIONAL LAW AS FAR AS POSSIBLE IN LIGHT OF EUROPEAN LAW in general.
This doctrine applies as a structural principle to all sources of European law.

40. PRINCIPLE OF INDIRECT EFFECT
Indirect effect arises from the failure of a MS to implement a directive partially (A) or totally: not implementation at all (B). As a consequence: the direct affect cannot be applied.
Es. because the party against whom the directive is sought to be enforced is a private entity or otherwise fails to meet the conditions which would give give the directive direct effect
Recommendations and opinions could have indirect effect as well.

41. ECJ Case law
In Von Colson, the ECJ ruled that national courts should interpret national law in line with the directive, "in so far as it is given discretion to do so under national law”.
In Marleasing, the ECJ extended indirect effect to situations where the MS concerned had not implemented the directive at all.

42. Definition solidified in Von Colson
in implementing EU directives national legislator shall bring the indeterminate aspects of the directive in line with national views
If the legislator fails to do so, the task is transferred to the national judiciary SYSTEM who will implement the directive through a European interpretation of national law.
Doctrine can lead to the indirect implementation of a directive which may impose indirect horizontal and vertical obligations

43. Webb case
EMO Air Cargo had an employee called Mrs Stewart who had taken maternity leave. Miss Webb was hired to replace Mrs Stewart, though it was envisaged that she would stay on working after Mrs Stewart came back.
Then, however, it transpired that Miss Webb was also pregnant and due to give birth at around the same time as Mrs Stewart. Miss Webb was dismissed.
She claimed this was sex discrimination. The employer argued she was unable to carry out the tasks for which she was recruited.
The Court of Appeal (House of Lords) in line with the Industrial Tribunal held that a sick man, who was the appropriate comparator, would have been treated similarly.

44. Webb case
The ECJ referred to the Dekker case and reaffirmed that pregnancy discrimination was sex discrimination, as reled by the Directives 76/207/EEC and 92/85/EC
There is no need for a comparison with a man who is ill.
Pregnancy is not a pathological condition comparable to non-availability for work on non-medical grounds (which would otherwise justify dismissal without discrimination on grounds of sex).
You can interpret, but you cannot distort national legislation that in any case has to be interpreted as far as possible in the light of the wording and the purose of the directive.