Direct Effect and Union Acts

Directives: Regulations have general binding applicationDecisions specify to whom it is binding in it's entirety. Directives under Article 288 EEC: A directive is binding upon each member state it is addressed to. ↳ Vertical Direct Effect= party invokes provision of EU law in national court against a member state    Horizontal Direct Effect= a party invokes a provision of EU law against a private party. Directives are not directly applicable as they require implementation into national law as apposed to being automatically incorporated into national law through treaties but they do have direct effectIf a member state fails to implement the directive, the ECJ cannot order horizontal direct effect, it can only impose sanctions.Directives have vertical direct effect: Becker: EU law imposed an obligation to exempt credit transactions from turn over tax. Held, whenever the provisions of a directive which is unconditional and sufficiently precise is not adopted within the implementation period, it may be relied upon against any national provision which is incompatible. Ratti: Directives impose a duty on member states to adopt implementing measures by a certain date, it would be unfair to base judgement on their failure to carry out this obligation. Governments are 'estopped' from denying direct effect of the effectiveness of a directive they have failed to implement. Marshall: A claim of early dismissal due to age was held to be a vertical claim as the state had acted through the Health Authority. Note: If this were a horizontal claim, the directive cannot be invoked against a private party.Faccini Dori: Directives are not capable of horizontal effect as they grant rights upon individuals and so a general vote from member states agreed that a directive may be vertically effective: it must be possible to identify the content of these rights from the directive however it must be possible to identify a causal link between the state's failure to implement the directive and the damage suffered by an individual.  Qualifying mitigating factors for a horizontal claim include: 1. The notion of state.Foster & Others: Claimant attempted to bring a case against the state through the British Gas Corporation. The 'notion of state' includes tax, local/ regional policies, public order and safety maintenance and Health Service Authorities. If a claim falls under the notion of state it will amount to vertical direct effect, otherwise it will not succeed. 2. The need for consistent interpretationUnder Article 4(3) TEU: courts have a duty to interpretate EU Law consistently. von Colson: Directives are to be used to help interpretate national law consistently with the aimed objectives. Incidental effectMarleasing: All national legislation is to be interpreted in light of EU law, irrespective of whether national provisions were adopted before or after the directive. This may allow horizontal cases to have directives applied "Indirectly". Angelidaki: when national courts apply domestic law they are to interpretate it based upon the directive whether the law was adopted before or after the directive. This was held to be sensible despite pre-existing law. If consistent interpretation makes one criminally liable whom should not be liable or disproportionately portrays the liability as more serious as it should be, the court may rule as an exception to the duty. The duty of consistent interpretation is to be applied only where the period of transposition for the directive has passed. Adeneler: Greece was due to have Directive implemented requiring good measures for a fixed contract. The Directive was to be implemented when the time limit of the directive has expired as national courts have an obligation to read law in conformity with a directive from the date of transposition. However, consistent interpretation itself is flexible and non-intrusive as it is decided by national courts. 3. Incidental effect:Directive 83/189 provided for technical standards and regulations; national drafts of proposed technical regulations had to be notified to the Commission. The draft cannot be adopted until the commission and other member states have commented upon it. A postponement of adoption of the draft is held if another member state asks for an amendment of the draft. If the draft is enforced despite non-compliance with this procedure, within vertical cases this can be considered an act against the State and so the draft is inapplicable. CIA Security: breach of this procedure to notify the commission and member states of the draft renders the technical regulations inapplicable to individuals (horizontal cases).Unilever: Olive oil was not labeled in compliance with technical regulations. Because the claim was bought by an individual who had no rights over the regulation the claim failed. National courts are required to refuse to apply technical regulations adopted in a way that goes against the procedure of proposed adoption. This created neither rights nor obligations upon individuals. Océano Grupo Editorial: a directive may exclude (primacy) or substitute (direct effect) an incompatible national rule with the directive. General Principles of Law:General principles= rules to full the gaps of written law arising from international treaties and national traditions. TEU Art 6(3):Fundamental rights shall constitute general principles of the Union's law. TFEU Art 340: In the case of non-contractual liability, the Union shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.  Legal Certainty Legitimate expectations Proportionality Respect for fundamental rights Werner Mangold: Lawyer discriminated against employee due to age. Directive 2078  is not a blanket prohibition upon Nation Law and so need not be applied.However, the principle of equal treatment existed separately from the directive. Thus, the discrimination on grounds of age constituted to a general principle of union law and could be applied to horizontal cases. Kücükdeveci: the prohibition against discrimination against the grounds of age need not be applied where to situation had no relevance to the directive (e.g. if the directive has expired).Römer: discrimination on the grounds of age reflects the general principle surrounding the general principle of sexual orientation. When a directive is found to enshrine a general principle of law, individuals can rely upon the principle in cases which apply to union law. Dominguez: The right to pay annual leave cannot be applied directly in horizontal cases. The general principle and directive have vertical effect. 

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