Centralised and Decentralised Enforcement of EU Law – notion of direct effect

Direct effect
1. A guide
  1. Public and private enforcement
    1. Public: public arm of gvt, accorded power to bring infringers to court. Allowed through Art 258 TFEU for Commission to sue MS before ECJ
    2. Private: actions brought by individuals
      1. ECJ legitimised private enforcement. Treaty Articles could on certain conditions have direct effect => individuals could rely on them before national courts and challenge national action.
  2. Uncertainty about meaning of DE
    1. Broad definition: the capacity of a provision of EU law to be invoked before a national court. 'Objective DE'
      1. Van Gend en Loos
    2. Narrow definition: the capacity of a provision of EU law to confer rights on individuals which they may enforce before national courts. 'Subjective' DE
  3. The expansion of DE
  4. The judicial focus then shifted to directives: only capable of having vertical direct effect, could only be raised against state or state entity
  5. Vertical/horizontal distinction applied to directives => complex jurisprudence.
    1. Vertical/horizontal distinction required ECJ and national courts to differentiate between state and non-state entities.
    2. Directives can still impact on national law, ECJ created doctrine of indirect effect
2. Treaty provisions
  1. Foundations: Van Gend en Loos
    1. Van Gend en Loos: chemicals imported from Germany to Netherlands. Could nationals of a MS on the basis of art claim to individual rights? Objective of EEC Treaty => promote Common Market. Art 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.
    2. Concept of DE understood as immediate enforceability by individuals of those provisions in national courts
    3. Reasoned partly from text of Treaty: pointed to Preamble which made ref to citizens as well as MSs.
    4. Reasoning also characterised by vision of the kind of legal community that the Treaties were designed to create >< different from that of Mss
    5. P Pescatore: Treaty has created community not only of States but of peoples and persons. Individuals must be viewed as subjects of Community law. Governments may not say L'Etat, c'est moi anymore like for international law but calls for participation of EVERYBODY.
  2. The conditions for direct effect: broadening the conditions
    1. Reyners: the Court employs DE to compensate for insufficient action on part of the Community legislative institution
    2. Conditions: a Treaty art will be accorded direct effect provided that it is intended to confer rights on individuals and that it is sufficiently clear, precise and unconditional
3. Treaty articles: vertical and horizontal DE
  1. International Transport Workers' Federation and Finnish Seamen's Union v Viking Line ABP and OÜ Viking Line Eesti: art 43 is capable of conferring rights on private undertaking which may be relied on against a trade union or an association of trade unions; Treaty Articles can have horizontal DE such as to impose obligation on private party
Enforcement actions against member states
1. The function and operation of the infringement procedure
  1. Art 258 TFEU: Commission can bring infringement proceedings against MS
  2. Nature and function of art 258 procedure
    1. Initiated by C either in response to complaint or on its own
    2. Although C takes individuals' complaints into account, primary objective is bring offending MS into lint rather than satisfying individual interests
    3. Although role of individuals => vague, still important in discovering infringements (case about Irish NGO which brought info about environmental infringements)
      1. Individuals have no say in determining whether or not C initiates proceedings against MS
        Star Fruit v Commission
      2. Individuals have regularly made complaints about C's procedures => Ombudsmen pressed C to change attitude
    4. C => more frequent press releases, more info, EU Pilot method for 'improved info exchange'
    5. Major complaint => lack of transparency of infringement proceedings
      1. C has invoked exception to EU transparency rules governing 'inspections, investigations and audits'
        Petrie: CFI underscored bilateral nature of infringement proceedings in upholding refusal to access docs relating to proceedings because individuals not party to proceedings
      2. Bavarian Lager II: CFI ruled that docs relating to proceedings having been closed 6 years before were open to exception => step towards transparency
      3. Sweden and API v Commission: affirmed move towards greater disclosure in context of closed infringement proceedings + docs relating to investigations carried out by C in context of infringement proceedings under art 258 no longer closer after ECJ had delivered judgment closing those proceedings
    6. Harlow and Rawlings: different phases of infringement procedure; phase 1 in early years: one of diplomacy shaped by C, phase 2: more judicial influenced by jurisprudence of Court but still dominated by C, phase 3: more clearly legalised phase following enactment of provision. 'The citizen who complains' as a 'party in admin procedure', should enjoy access to file in accordance with right of good admin. But issue: individualist often complain because of private interest
2. Operation of the procedure
  1. Infringement procedure divided into 4 stages
    1. 1) pre-contentious stage: MS given occasion to explain its position and opportunity to reach accommodation with C
    2. 2) if matter not clarified or resolved informally, state will be formally notified of infringement by means of letter from C. MS given 2 months to reply
    3. 3) if after exchange with MS, matter still not resolved, C may issue reasoned opinion => sets out clearly the grounds on which alleged infringement rests + marks beginning of time period within which MS must comply
    4. 4) referral of matter by C to Court of Justice
    5. C prefers to resolve things at pre-contentious stage, approx 68% closed before 1st formal step, 84% closed before reasoned opinion, 94% before going before ECJ
    6. complementary mechanisms set up by C for resolving non-compliance, like SOLVIT, national mediation + C introduced criteria to prioritise particular kinds of infringement (i.e. those that undermine rule of law, smooth functioning of EC legal system)
3. Relationship between 'public' and 'private' enforcement mechanisms
  1. Van Gend en Loos: "The vigilance of individuals concerned to protect their rights amounts to an effective supervision in addition to the supervision entrusted by art 169 and 170 to the diligence of C and of MS'
  2. Mölkerei-Zentrale: ECJ ruled that proceedings brought by individuals were intended to protect individual rights >< C enforcement proceedings intended to ensure the general observance of Community law
  3. Commission v UK: ECJ rejected UK's argument that C infringement proceedings should be deemed inadmissible on basis that national proceedings were pending
4. The Commission's discretion
  1. Craig: given multiple roles of C, there may be political and other reasons leading C to exercise its discretion against bringing infringement proceedings even where MS is blatantly in violation
  2. C has discretion, after reasoned opinion, to refer MS to ECJ
  3. Court made it clear that reasons for bringing action are 'objective'
    1. Commission v UK: UK argued that C had political motive behind its actions; ECJ held that an action against MS is objective in nature
  4. Absence of motive will not affect admissibility either
    1. Commission v Germany
  5. Certain contraints on C's discretion about length of time taken to bring proceedings in respect of a particular infringement
    1. Commission v Netherlands: although art 258 did not specify a time limit, 5 years between letter and infringement proceedings excessive. However, Netherlands had not proved that length of procedure had any effect on its defence
    2. Commission v Austria: ECJ rejected argument that length of time passed => proceedings brought by C would violate principle of legal certainty + acquired rights of individuals affected by earlier events
  6. Restrictions on C's discretion about when to refer a matter to ECJ after reasoned opinion
    1. Commission v Ireland: ECJ reprimanded C for not allowing enough time to passe between reasoned opinion and referral. But still OK because C had awaited Ireland's reply.
    2. Commission v Belgium: C's proceedings deemed inadmissible because of shortness of time
    3. Commission v Luxembourg: period of 4 months after reasoned opinion OK if MS had 3 years' prior notice
    4. Commission v Austria: period of 7 days to respond to letter with 14 days' prior notice ok because of urgency of situation
  7. Star Fruit v Commission: ECJ rejected attempt by company to use art 265 to force C to commence proceedings against France
  8. Sonito v Commission: dismissed actions for annulment requested by individual against decision of C not to commence proceedings
  9. Snyder: main form of dispute settlement of C is negotiation, litigation simply a part of this. C has complete discretion in bringing infringement proceedings against MS under art 169. C can use litigation as an element in developing long-term strategies
  10. Self-imposed constraints: C codified its own internal rules governing relations with individual complainants. European P + Ombudsman => positive influence on C's conduct, better mechanisms of accountability

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Centralised and Decentralised Enforcement of EU Law – notion of direct effect

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