Direct and Indirect Effect of EU Law at National Level - Essay Example

EU LAW Summary The paper provides the meanings of the direct and indirect effect of EU law at national level. It additionally describes the legal instruments that are affected by the above two and the conditions that have to be satisfied in order to ensure their effects are felt within the legal system. Finally, the paper provides a description of the actions that can be taken against the member countries of the European Union in ensuring that they do not breach the union’s laws. Introduction Businesses and individuals have been offered a variety of mechanisms and laws for ensuring that their rights are respected at their nation’s level. The European Union has also come up with several measures that will help it in dealing with the member states who do not comply with the union’s laws. Key Question: How can an individual or business enforce its rights under EU law at national level? 1. What does “DIRECT EFFECT” mean? This is a principle of European law that applies to varying aspects of their law which are enforceable by the union citizens within their respective member states. This is carried out regardless of the fact that these countries may have initiated laws for their country that will be charged with implementing their provisions1. 2. Which EU measures can have direct effect? (a) Treaty articles- Have a direct effect as can be seen in the case of Van Gend en Loos v Netherlandse Administratie Der Belastingen Case 26/62 [1963]. This case established that the provisions under the treaty that helped in forming the European Union were indeed capable of establishing other legal rights that were enforceable by individuals living within the member states2. (b) Regulations- Have a direct effect as witnessed in the judgment at the case between Politi SAS v Italian Ministry of Finance Case 43/71 [1971] which concerned itself with the levying of duties on poultry imports to Italy3. (c) Decisions- Have a direct effect since as per the judgment made in the case of Grad v Finanzamt Traunstein Case 9/70 [1970] the nature, wording and backgrounds of the provisions found in various questions must be ascertained for the purpose of establishing the legal relationship between a third party and an addressee4. (d) Directives- Have a direct effect. In the case of Van Duyn v Home Office, a Dutch citizen by the name of van duyn was denied entry into the country for her affiliation to a scientific religion that was largely believed by the government to be communally harmful. After suing on the basis of the Rome treaty, the court was later on referred to the Justice court of the European Union5. (e) Recommendations and opinions- Do not have a direct effect. According to the rulings case of Grimaldi v Fonds des Malaises Professionelles Case 322/88 [1989], recommendations with no binding effects do not have a direct effect on the parties to the case6. 3. What conditions must be satisfied? (a) Treaty articles, Regulations and decisions: Three conditions on the direct effect the treaty, regulations and decisions may have were identified from the cases of NV Algemene Transporten Expedite Onderneming Van Gend En Loos V. Nederlandse Administratie Der Belastingen, Case 26/62 [1963]. They stated that the situations for the above three conditions should be precisely stated and be adequately clear, be unconditional and independent of other legal stipulations and confer specific rights upon which citizens could base their claims7. (b) Directives: For the direct effect to be applied to directives in three additional conditions require satisfaction. Firstly, the directives must be clear and precise as evidenced in the rulings made in the case of Defrenne v SABENA No 2 Case 43/75 [1976] while the second condition stipulates that the deadline for the implementation by the member states has not passed as witnessed in the case of Pubblico Ministero v Ratti Case 148/78 [1979]. Thirdly, the directives only have a direct effect which implies that the are only enforceable against their states as witnessed in the ruling made in the case of Doughty v Rolls Royce in the year 19928. 4. What does “INDIRECT EFFECT” mean? The principles behind this doctrine stipulate that the national courts, which act as their member state organs charged with fulfilling the obligations of the EU, should interpret their domestic laws in consistence with European directives. It therefore implies that domestic courts should discard their local laws in case they conflict with the European directives. The domestic courts that are found within member states should ensure that the interpretation of their domestic laws remains consistent with European directives9. 5. Which EU measures can have indirect effect? (a) Treaty articles- They do not have an indirect effect. (b) Regulations- They do not have an indirect effect. (c) Decisions- They do not have an indirect effect. (d) Directives- They have an indirect effect. (e) Recommendations and opinions- They do not have an indirect effect10. 6. When will an EU measure have indirect effect? (a) All national law or just subsequent/ implementing measures? In the case of Marleasing v La Comercial International de Alimentacion SA Case 106/89 [1990], the courts decided that the courts found within the member states of the European Union had the ability of implementing their national legislations in the event that there were unimplemented European directives11. (b) The terms of the national law compared with the terms of the EU measure: In the case of Wagner Miret v Fondo De Garantia Salarial Case 334/92 [1990], the European courts argued that nobody could be protected by national laws in the event that a European directive called for prosecution12. 1. The FACTORTAME III TEST (a) What is the test? According to the joint cases between Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport ex parte Factortame (Factortame III), the Factortame III test is carried out on adequately serious breaches of the law. The consequences of these actions should be able to manifest themselves. It stipulates that there should be clarity along with precision of the rules that have been breached while the measures of discretion are left to the respective MS. The test also entails determining whether the breaches of law were intentional or they were involuntary or whether the errors made were excusable or not to be excused. In the Factortame III test, it is important to consider if the decisions taken by the EU did contribute to the actions of their member states and whether the EU should adopt practices that are deemed to be contrary to their law13. (b) When does this test apply? This test applies where a member state has otherwise enacted legislation which is contrary to EU law as witnessed in the case of Brasserie du Pecheur SA v Germany and R v Secretary of State for Transport ex parte Factortame (Factortame III). It also applies where a member has incorrectly implemented a directive as seen in the case of R v Secretary of State for the Home Department ex parte Gallagher Case C-175/94 [1996]14. On the other hand, it is useful where a Member State has adopted an administrative policy which is contrary to EU law as seen in the case of R v Ministry of Agriculture Fisheries & Food ex parte Hedley Lomas (Ireland) Ltd Case C-5/94 [1996]15. In addition, other criteria’s are useful in establishing the extent of seriousness of the breach of European laws. For instance, it is assumed to be automatically serious if a member state applies no discretion from the European commission in its administrative policies16. Finally, the test is useful in instances where a member state court adjudicating at last has refused to make a reference and has given judgment which infringes EU law. This may include non-compliance to article 267 TFEU or breaching of their courts case laws as can be witnessed in the case of Kobler v Austria Case C-224/01 [2003]17. CONCLUSION The paper has described the extent to which an individual’s rights may be protected by the national courts and how the member states can be stopped from infringing on the European laws. References Anthony, G, 2002, UK Public Law And European Law, Hart Publishing, New York. Bernitz, U, Nergelius, J & Cardner, C, 2007, General Principles Of EC Law In A Process Of Development: Reports From A Conference In Stockholm, 23-24 March 2007, Organized By The Swedish Network For European Legal Studies, Kluwer Law International, Brussels. Berry, E & Hargreaves, S, 2009, European Union Law, Oxford university press, oxford. Chalmers, D, Davies, G & Monti, G, 2010, European Union Law: Cases And Materials, Cambridge University Press, Cambridge. Craig, P & de Burca, G, 2007, EU Law: Text, Cases, Materials, oxford university press, oxford. Hartley, T, 2007, The Foundations Of European Community Law, Oxford university press, oxford. Kaczorowska, A, 2008, European Union Law, Taylor & Francis, New York. Moens, G & Trone, J, 2010, Commercial Law Of The European Union, Springer, New York. Papadopoulos, T, 2010, EU Law And The Harmonization Of Takeovers In The Internal Market, Kluwer Law International, Brussels. Weatherill, S, 2007, Cases And Materials On EU Law, Oxford university press, oxford. Read More