Part II EU LAW – Lesson 3.pptx

# Primacy of EU law The principle of primacy of EU law establishes that EU law takes precedence over conflicting national legislation, ensuring its uniform application across all Member States. ### 1.1 The principle of primacy #### 1.1.1 Origin and rationale The principle of primacy, also known as supremacy, is a cornerstone of the European Union's legal order. It stems from the recognition that the EU Treaties create a distinct and independent legal system, established by the Member States through a transfer of sovereign powers. This supranational legal order cannot be undermined by subsequent national measures, as doing so would compromise the very nature of EU law and the foundations of the Community itself. The creation of a community of unlimited duration with its own institutions, personality, legal capacity, and powers inherently involves a limitation of the Member States' sovereign rights. This permanent limitation means that a subsequent unilateral national act incompatible with the concept of the EU cannot prevail over EU law. #### 1.1.2 Scope of application The principle of primacy applies to all EU law, including primary law (Treaties) and secondary law (regulations, directives, decisions). It is valid even in relation to the constitutions of Member States, regardless of whether a national constitution explicitly grants primacy to international treaties. #### 1.1.3 Consequence of primacy As a direct consequence of primacy, any national regulation or legislation that is contrary to EU law must be set aside and left without application. This obligation extends to all national judges, implementation organs, and public authorities. #### 1.1.4 Background of the Costa/ENEL case The landmark Costa/ENEL case provided a clear and explicit expression of the principle of primacy. Flaminio Costa, an Italian lawyer and consumer, refused to pay his electricity bill after the nationalization of the electricity sector in Italy. He argued that the nationalization law infringed both the Italian Constitution and the EEC Treaty. While the Italian Constitutional Court initially held that national laws did not have a special rank and that the principle of *lex posterior derogat legi priori* (later laws repeal earlier ones) would apply, the European Court of Justice (ECJ) later established a milestone principle. The ECJ ruled that the law stemming from the Treaty, being an independent source of law, could not be overridden by domestic legal provisions. > **Tip:** Understanding the context of the Costa/ENEL case highlights the ECJ's determination to safeguard the integrity and effectiveness of the EU legal order against potential national overrides. ### 1.2 Direct effect of EU law Direct effect is closely related to the principle of primacy and refers to the ability of EU law provisions to create rights for individuals that national courts must protect. #### 1.2.1 Direct effect of primary EU law Case law, starting with Van Gend & Loos (1963), established that EU Treaties are not merely international agreements binding only on Member States. They also create a new legal order that confers rights and imposes obligations on individuals. ##### 1.2.1.1 Arguments for direct effect of primary law * **General purpose of the Treaty:** The overarching goal of the EU Treaties, particularly the creation of an internal market, is of direct interest to all citizens. * **Preamble of the Treaty:** The preamble is addressed to the "peoples of the Member States," indicating a direct concern for citizens. * **Citizen participation:** Citizens can cooperate in the decision-making process through their representation in the European Parliament. * **Transfer of sovereignty:** Member States have transferred substantial legislative powers and competences to the supranational legal order of the EU. ##### 1.2.1.2 Enforceability before national courts Individuals can enforce the rights derived from the Treaty before national courts. This is because certain Treaty provisions, like Article 12 of the EEC Treaty (now Article 30 TFEU), contain clear and unconditional prohibitions that are well-suited to producing direct effects in the legal relationship between Member States and their citizens. ##### 1.2.1.3 Conditions for direct effect of primary EU law For a provision of primary EU law to have direct effect, the following conditions must be met: * It must be a provision of EU primary law (TEU and TFEU). * It must contain a clear obligation addressed to the Member States. * The obligation must be unconditional. * It must be possible to derive a right for individual citizens from that obligation. If there are doubts about fulfilling these conditions, a preliminary ruling can be requested from the ECJ for interpretation. ##### 1.2.1.4 Relationships of direct effect Directly effective provisions can be invoked by individuals in: * **Vertical relationships:** Against Member States and their public authorities. * **Horizontal relationships:** Against other individuals, undertakings, companies, or organizations. ##### 1.2.1.5 Example provisions of TFEU with direct effect Articles 21, 30, 101, 102, and 157 TFEU are examples of provisions that can have direct effect. > **Example:** Article 30 TFEU prohibits Member States from introducing new customs duties or charges having equivalent effect between themselves. A company importing goods can, under direct effect, challenge a national measure that imposes such a charge before its national court. #### 1.2.2 Direct effect of secondary EU law Secondary EU law includes regulations, directives, and decisions. ##### 1.2.2.1 Regulations and Decisions Regulations and decisions, by their nature, generally have direct effect and can be invoked by individuals in both vertical and horizontal relationships. ##### 1.2.2.2 Directives Directives are addressed to Member States and require them to achieve a certain result within a specified period. Their direct effect is more nuanced. * **Before the expiry of the implementation period:** Directives generally do not have direct effect. * **After the expiry of the implementation period:** * **Vertical direct effect:** If a Member State has failed to implement a directive by the deadline, and the provisions of the directive are clear, unconditional, and confer identifiable rights on individuals, these rights can be invoked by individuals against the Member State (vertical direct effect). This is illustrated by the Ratti case. * **No horizontal direct effect:** Generally, directives do not have direct effect in disputes between private individuals (horizontal direct effect). This was affirmed in the Faccini Dori case. * **Directive-conform interpretation:** National courts are obliged to interpret national law, as far as possible, in light of the wording and purpose of the directive to achieve the result it aims for. * **State liability:** If a directive's provisions are clear, unconditional, and confer identifiable rights on individuals, and the Member State fails to implement it within the prescribed period, individuals who suffer damage due to this failure can claim compensation from the state. This principle of state liability was established in the Francovich case and confirmed in Faccini Dori. > **Tip:** Remember that while directives often require national implementation, their failure to be implemented can, in certain circumstances, lead to individual rights being enforceable against the state or the state being liable for damages. ##### 1.2.2.3 Key case law on direct effect of secondary law * **Case Ratti (1979):** Established that a Member State that has failed to implement a directive cannot rely on its own failure to perform its obligations against individuals. Individuals who have complied with the provisions of a directive can invoke it against a national provision incompatible with the directive if the obligation is unconditional and sufficiently precise. * **Case Faccini Dori (1994):** Reaffirmed that directives do not have direct horizontal effect. However, national courts must interpret national law in line with the directive's purpose and wording. In cases of non-implementation, individuals may have a claim for damages against the state under the Francovich principle. * **Case Francovich (1991):** Established the principle of state liability for damages caused to individuals due to the failure of a Member State to implement an EU directive within the prescribed period. The conditions for this liability are: 1. The directive must be intended to grant rights to individuals. 2. The content of these rights must be identifiable based on the directive's provisions alone. 3. There must be a causal link between the breach of the Member State's obligation and the loss or damage suffered. ##### 1.2.2.4 Summary of direct effect vehicles EU law can have direct effect through three main "vehicles": 1. **Primary EU Law (Treaty provisions):** Requires clarity, unconditionality, and the possibility of deriving individual rights. Applicable in both vertical and horizontal relationships. 2. **Directives:** * **Vertical direct effect:** Possible in cases of non-implementation against the Member State, provided the directive's provisions are clear and unconditional and confer rights. * **No horizontal direct effect:** Generally not enforceable between private individuals. * **Directive-conform interpretation:** National courts must interpret national law in line with the directive. * **State liability:** Individuals can claim damages from the state for non-implementation, subject to the three Francovich conditions. 3. **Regulations and Decisions:** Generally have direct effect and can be invoked in both vertical and horizontal relationships. ### 1.3 The "cream cheese case law" (Franco-Suisse Le Ski) The Belgian Court of Cassation's judgment in the Franco-Suisse Le Ski case (1971) is a significant illustration of both the direct effect of primary EU law and the principle of primacy. #### 1.3.1 Background A Royal Decree imposed import duties on dairy products. This decree was later found to be in violation of Article 12 of the EEC Treaty (now Article 30 TFEU), which prohibits new customs duties or charges having equivalent effect. The ECJ ruled that Belgium was in breach of its obligations. #### 1.3.2 The Court's decision The Court of Cassation confirmed that a treaty with direct effect within the Belgian legal order takes precedence over Belgian legislation, including laws adopted after the treaty was approved. This meant national tribunals were obliged to disregard Belgian legislation incompatible with EU law. #### 1.3.3 Connection to EU principles This case strongly supports the principles established in Van Gend & Loos (direct effect) and Costa/ENEL (primacy). It demonstrates the practical application of these principles, obliging national courts to set aside conflicting national measures. It also exemplifies the principle of loyal and sincere cooperation of Member States with the EU institutions, as enshrined in Article 4(3) TEU. --- # Direct effect of primary EU law The direct effect of primary EU law means that certain provisions within the EU Treaties can be directly invoked by individuals before national courts, creating enforceable rights and obligations. ### 2.1 The principle of direct effect The principle of direct effect allows individuals to rely on provisions of EU law before national courts. This concept emerged from the European Court of Justice's (ECJ) case law, notably the *Van Gend & Loos* judgment. The ECJ established that the EU Treaties create a new legal order that benefits not only Member States but also their nationals. This means that EU law can impose obligations on individuals and also confer rights that become part of their legal heritage, which national courts must protect. #### 2.1.1 Rationale for direct effect of primary EU law Several arguments support the rationale for the direct effect of Treaty provisions: * **General purpose of the Treaty:** The overarching goal of creating an internal market is of direct interest and importance to all citizens. * **Preamble of the EC Treaty:** The preamble is addressed to the "peoples of the Member States," indicating a direct concern for individuals. * **Citizen participation:** Citizens can cooperate in the decision-making process through their representation in the European Parliament. * **Transfer of sovereignty:** Member States have transferred substantial legislative powers to the supranational legal order, implying that individuals can derive rights and obligations from these transfers. #### 2.1.2 Enforcement of rights before national courts The ECJ confirmed in *Van Gend & Loos* that Article 12 of the EEC Treaty (now Article 30 TFEU) had direct effect and could be enforced by individuals in national courts. The Court argued that the spirit, scheme, and wording of the EEC Treaty indicated that Article 12 should be interpreted as producing direct effects and creating individual rights that national courts must protect. * **Clear and unconditional prohibition:** Article 12 contained a clear and unconditional prohibition, which made it well-suited to creating direct effects in the legal relationship between Member States and their citizens, even without direct implementation into national law. ### 2.2 Conditions for direct effect of primary EU law For a provision of primary EU law (TEU and TFEU) to have direct effect, the following conditions must be met: 1. **Relates to primary EU law:** The provision must be part of the EU Treaties (TEU or TFEU). 2. **Clear obligation:** There must be a clear obligation within the provision addressed to the Member States. 3. **Unconditional obligation:** The obligation must be unconditional, meaning it does not require further implementing measures by Member States. 4. **Derivable right for individuals:** It must be possible to derive a right for individual citizens from that obligation. If there is doubt regarding the fulfillment of these conditions, a preliminary ruling can be requested from the ECJ for interpretation. > **Tip:** If a Treaty provision meets these conditions, it can be invoked by individuals against Member States (vertical effect) and also against other individuals, companies, or organizations (horizontal effect). ### 2.3 Examples of Treaty provisions with direct effect Provisions of the TFEU that can have direct effect include Articles 21, 30, 101, 102, and 157. ### 2.4 The "cream cheese case law" (Franco-Suisse Le Ski) The Belgian Court of Cassation's judgment in *Franco-Suisse Le Ski* (1971) is a significant example of the application of both the direct effect of primary EU law and the principle of primacy. This case confirmed that a treaty with direct effect takes precedence over national legislation, including the Constitution, even if the national law was adopted after the treaty. * **Background:** A Royal Decree imposed import duties that conflicted with Article 12 of the EEC Treaty. The Court of Cassation upheld that international law with direct effect superseded national law. * **Consequence:** This ruling reinforced the obligation of national courts to disregard national measures incompatible with EU law. ### 2.5 Direct effect of secondary EU law Secondary EU law comprises legal instruments such as regulations, decisions, and directives. #### 2.5.1 Regulations and Decisions Regulations and decisions, by their very nature, generally have direct effect. They can be invoked by individual citizens against other citizens and against public authorities, having both vertical and horizontal application. #### 2.5.2 Directives The direct effect of directives is more complex and is typically considered after the expiry of their implementation period. * **Before the implementation period expires:** Directives generally do not have direct effect. * **After the implementation period expires:** * **Vertical direct effect:** If a Member State fails to implement a directive within the prescribed period, individuals can invoke the directive against the Member State (vertical effect). This is based on the principle that a Member State cannot benefit from its own failure to comply with EU law (*Nemo auditur propriam turpitudinem allegans*). * **No horizontal direct effect:** Directives generally do not have direct effect in disputes between private individuals (*Faccini Dori* case). * **Directive-conform interpretation:** National courts are obliged to interpret national law, as far as possible, in light of the wording and purpose of the directive to achieve the result it envisues. ##### 2.5.2.1 Conditions for vertical direct effect of directives For a directive to have vertical direct effect after the implementation period has expired, the following must be true: * The directive must contain a clear and unconditional obligation imposed upon the Member State. * It must be possible to derive specific rights for individual citizens from this obligation. ##### 2.5.2.2 Case law on directives * **Case Ratti (1979):** Established that a Member State that has not adopted the required implementing measures by the prescribed deadline cannot rely against individuals on its own failure to fulfill its obligations under a directive. This means national law contrary to a directive can be set aside by national courts if the directive's provisions are sufficiently precise and unconditional. * **Case Faccini Dori (1994):** Reaffirmed that directives do not have horizontal direct effect. An individual cannot use a directive to sue another private party directly if the Member State has failed to implement it. However, the principle of directive-conform interpretation applies. * **Case Francovich (1991):** Established the principle of State liability for damages caused to individuals due to a Member State's failure to implement a directive within the prescribed period. ###### 2.5.2.2.1 Conditions for State liability For an individual to claim damages from a Member State for its failure to implement a directive, three conditions must be met: 1. The purpose of the directive must be to grant rights to individuals. 2. It must be possible to identify the content of those rights based on the provisions of the directive alone. 3. There must be a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties. > **Tip:** Even if a directive lacks horizontal direct effect, individuals may still be able to achieve their objectives through directive-conform interpretation of national law or by seeking damages from the State under the principle of State liability established in the *Francovich* case. --- # Direct effect of secondary EU law The direct effect of secondary EU law allows individuals to invoke certain EU legal instruments before national courts, ensuring the consistent application of EU law across Member States. This concept primarily applies to regulations, decisions, and directives. ### 3.1 Regulations and decisions * **Nature and Scope:** Regulations and decisions, by their very nature, are designed to have direct applicability within Member States. * **Enforceability:** They can be invoked by individual citizens against both public authorities (vertical effect) and other private individuals (horizontal effect). ### 3.2 Directives Directives present a more nuanced situation regarding direct effect. While they are binding as to the result to be achieved, they leave the choice of form and methods to national authorities. #### 3.2.1 Conditions for direct effect of directives * **Expiry of the Implementation Period:** Directives generally do not have direct effect before the expiry of the period set for their implementation by Member States. * **Vertical Direct Effect:** After the implementation period has passed, directives can have **vertical direct effect**, meaning they can be invoked by individuals against public authorities. This is applicable when the Member State has failed to implement the directive into national law. * **No Horizontal Direct Effect:** Crucially, directives generally **do not have horizontal direct effect**. This means individuals cannot directly invoke a directive to claim rights against other private individuals if the Member State has not implemented it into national law. #### 3.2.2 Key case law on directives * **Case Ratti (1979):** This case established the principle of vertical direct effect for directives. It held that a Member State which has failed to adopt the implementing measures required by a directive within the prescribed period cannot rely against individuals on its own failure to fulfil its obligations. If a national court is asked by an individual who has complied with the provisions of a directive not to apply a national provision incompatible with the directive, and the obligation in question is unconditional and sufficiently precise, the court must uphold this request. * **Case Faccini Dori (1994):** This case reaffirmed the principle that directives do not have horizontal direct effect. An individual cannot use a directive to sue another private party directly if the Member State has failed to implement it. However, the Court emphasized the obligation of national courts to interpret national law in line with the directive's purpose and wording. * **Case Francovich (1991):** This landmark case introduced the principle of **state liability** for damages caused by a Member State's failure to implement a directive within the prescribed period. Even if a directive lacks direct effect, individuals can claim damages from the state if their rights have been infringed due to the state's inaction. #### 3.2.3 State liability for non-implementation of directives (Francovich liability) The principle of state liability provides a crucial remedy when directives are not implemented correctly. For an individual to claim damages from a Member State, three conditions must be met: 1. **Intention to Grant Rights:** The directive must be intended to grant rights to individuals. 2. **Identifiable Content of Rights:** The content of these rights must be identifiable based on the provisions of the directive alone. 3. **Causal Link:** There must be a causal link between the breach of the Member State's obligation and the loss or damage suffered by the individual. > **Tip:** While directives may not have direct horizontal effect, individuals can still benefit from them through two main avenues: directive-conform interpretation of national law and claims for damages against the state under the principles established in Francovich. ### 3.3 Conditions for direct effect of primary EU law The direct effect of primary EU law (Treaties) allows individuals to rely on Treaty provisions before national courts. The following conditions must be met: * **Provisions of EU Primary Law:** The provision must be from the EU Treaties (TEU and TFEU). * **Clear Obligation:** There must be a clear obligation within the provision addressed to the Member States. * **Unconditional Obligation:** The obligation must be unconditional, meaning it does not require further implementing measures from either EU institutions or Member States. * **Derivable Individual Right:** It must be possible to derive a right for individual citizens from that obligation. > **Example:** Article 30 TFEU (formerly Article 12 EEC) prohibits Member States from introducing new customs duties or charges having equivalent effect. This provision has been found to have direct effect, allowing individuals to invoke it against national authorities. #### 3.3.1 Scope of direct effect of primary EU law If the conditions for direct effect are fulfilled, Treaty provisions can be invoked in a **vertical relationship** (against Member States) and, in many cases, also in a **horizontal relationship** (against other individuals, companies, or organizations). ### 3.4 Directive conform interpretation of national law Even when a directive does not have direct effect, national courts are obliged to interpret national law, as far as possible, in light of the wording and purpose of the directive. This principle ensures that national legislation is applied in a manner consistent with EU law's objectives. > **Tip:** If a direct invocation of a directive is not possible, always consider whether national law can be interpreted to achieve the directive's aims. This is a powerful tool for ensuring EU law's effectiveness. ### 3.5 Summary of vehicles for direct effect EU law can have direct effect through three main mechanisms: 1. **Primary EU Law (Treaty Provisions):** Subject to conditions of clarity, unconditionality, and the creation of individual rights. Can have vertical and horizontal effect. 2. **Directives:** Primarily vertical direct effect against Member States after the implementation period has expired if not implemented. No direct horizontal effect between individuals. 3. **State Liability:** Individuals can claim damages from a Member State for losses caused by its failure to implement a directive within the prescribed period, provided the three Francovich conditions are met. This is available even if direct effect or directive-conform interpretation is not possible. The principle of primacy of EU law ensures that national measures contrary to EU law must be set aside, supporting the direct effect of EU legal provisions in ensuring uniform application across the Union. --- ## Common mistakes to avoid - Review all topics thoroughly before exams - Pay attention to formulas and key definitions - Practice with examples provided in each section - Don't memorize without understanding the underlying concepts

| Term | Definition | |------|------------| | Primacy of EU Law | The principle that EU law takes precedence over national law of the Member States. In cases of conflict, national legislation must be set aside if it is incompatible with EU law. | | Direct Effect | A principle of EU law that allows individuals to directly invoke provisions of EU law before national courts, provided certain conditions are met, thereby creating rights and obligations for individuals. | | National Legislation | Laws enacted by the legislative bodies of individual Member States. In the context of EU law, national legislation must be consistent with EU law due to the principle of primacy. | | Supranational Legal Order | A legal system established by an international agreement that transcends national borders and whose rules are directly applicable and enforceable within the territories of the member states. | | EEC Treaty | The Treaty establishing the European Economic Community, now succeeded by the Treaty on the Functioning of the European Union (TFEU). It is a foundational document of EU law. | | Treaty of Rome | The treaty signed in 1957 that established the European Economic Community (EEC). It is a key component of primary EU law. | | Preliminary Ruling Procedure | A procedure where national courts can refer questions of EU law interpretation to the Court of Justice of the European Union (CJEU) to ensure uniform application of EU law across Member States. | | Sovereign Rights | The ultimate authority and independence of a state to govern itself. Member States have voluntarily limited certain sovereign rights by transferring powers to the EU. | | Internal Market | An area within the European Union where goods, services, capital, and people can move freely between member countries, as if they were a single country. | | Primary EU Law | The foundational legal sources of the European Union, including the Treaties (like the TEU and TFEU) and the general principles of EU law. | | Secondary EU Law | Legal instruments adopted by EU institutions, such as regulations, directives, and decisions, based on the provisions of the Treaties. | | Regulations (EU) | EU legislative acts that are directly applicable in all Member States without the need for national implementing measures. They have direct effect. | | Directives (EU) | EU legislative acts that require Member States to achieve a specific result, but leave to them the choice of form and methods. They must be implemented into national law by a specified deadline. | | Decisions (EU) | EU legal acts that are binding in their entirety upon those to whom they are addressed, whether they are Member States, individuals, or companies. | | Vertical Direct Effect | The ability of individuals to invoke EU law provisions against the state or public authorities. | | Horizontal Direct Effect | The ability of individuals to invoke EU law provisions against other private individuals or entities. | | Directive Conform Interpretation | The principle that national courts must interpret national legislation, as far as possible, in accordance with the wording and purpose of relevant EU directives. | | State Liability | The principle that a Member State can be held liable for damages suffered by individuals due to breaches of EU law for which the State is responsible. | | Francovich Liability | A principle established by the ECJ case Francovich, holding Member States liable for damages caused to individuals by their failure to implement EU directives within the prescribed period, provided certain conditions are met. | | Causal Link | In the context of state liability, this refers to the requirement that there must be a direct connection between the Member State's breach of EU law and the damage suffered by the individual. | | Unconditional Prohibition | A rule or obligation in EU law that is clear, precise, and does not leave any discretion to Member States in its application or implementation. |