‘The Charter of Fundamental Rights is a too powerful instrument in the hands of the European

Court of Justice, as it enables it to make substantive policy choices which should be only for the EU
institutions or the Member States to decide.’ Discuss.

To what extent is it correct to say that the EU Charter of Fundamental Rights has strengthened the
protection of human rights in the EU?

The court of Justice of the European Union (CJEU) developed the scope of protection of human
rights as EU treaties have not any provision regarding fundamental human rights. Horspool stated
that human rights of people are considered to be part of general principles of EU law, it should be as
it provide for member state. The common general principles for human rights are freedom, equality,
proportionality, democracy, and the rule of law. After the Nice Treaty, in 2004, the European Union
Charter of Human Rights came into being. In this, we shall discuss about the charter rights on applied
to EU law and charter rights applied to national law of member states with the reference of case
laws.

In starting, the human rights didn’t have any importance in our member states but CJEU stated its
importance in their judgements. Consider the case Stauder v City of Ulm, the court held that
fundamental rights should not be partial while forming the decision. It clearly express the
importance of fundamental rights, despite there is no violation regarding it. In Internationale
Handelsgesellschaft case, the CJEU stated that the protection of fundamental rights should be notice
by member state as well, the basic framework should be expand according to their constitution. It
indicates that human rights development in national law of member states. As, Article 6 was bring in
Treaty of Maastricht and Article 7 was initiated in Amsterdam Treaty regarding human rights.

Furthermore, in Nold v commission, the CJEU repeat that the main source of fundamental rights
should be in national constitution and international agreements on human rights before the charter
came into being. The CJEU has faced challenges when there is a risk in comprising supremacy while
court showed hesitation while national traditions. In Hauer v Land Rheinland case, the CJEU also
referred to ECHR regarding specific provisions of national constitutions and in Omega case, the court
held that EU law will protect the fundamental rights.

The source of human rights is international agreements which identify by ECHR. In Defrenne v
Sabena, the ECJ mentioned about ECHR while in European Parliament v Council, the CJEU stated
about international covenant on Civil and Political Rights (ICCPR) and International Convention on
the Rights of the Child. The fundamental rights deals with these sources as member state
legislation.

When the different cases regarding human rights came to courts, the CJEU faced numerous difficulty
while deciding. In Bosphorus v Minister for Transport and in Kadi v Council and commission, the
court stated about the issue of legality of EU legalisation that give effect to United Nations sanctions
on Yugoslavia as the fundamental rights are sufficient. In Kadi v Council 2008 case the CJEU
mentioned about Union regulation of fundamental rights while in Rutilli, the court stated that
national measures should be composed in view of directive 64/221 and general principles of EU
should be considered in EU member states.

However, in 2000, the charter was introduced by EU and Libson Treaty gave the cheater its primary
status. Article 51 provides for the scope of the Charter. It is applicable to member state as well as
the EU institutions. Charter did have limited effect while implementing in EU member states in
regard to EU law. In Fransson case, the court held that the Charter should give the importance in all
the matters unless it is outside the EU. The charter should be applicable for all legislation of member
state of EU. Consider the Cruciano Siragusa v Regione case, the CJEU held that the member state of
EU should compose legislation with charter while implementing of EU law. As per Article 53 of the
Charter, member state cannot do anything which may limit the effect of the given rights of the
protection of fundamental. In the Melloni case, the ECJ while interpreting Article 53 said that
although national rules could be adopted but the protection given under the Charter and the EU law
should not be compromised. Further, development in respect of Charter was seen in the case of
private parties.

In Bauer case the court said that the Charter can have horizontal effect because Article 51 does not
prevent the said application of the Charter. It means the Charter is applicable in all scenarios. And
member state should give effect to the Charter as far as it is possible to do so. As long as
interpretation is consistent per EU law it can be given, however, if national law is not clear and
impossible to be given effect then public as well as private disputes can be considered and in this
regard judicial protection must be given.

In EU Commision v Poland case, the court stated that the judicial protection has also been invoked in
a number cases especially where infringement cases are brought by the Commission. It shows the
extensive effect of the Charter. After the treaty of Lisbon it has been further extended. For instance,
in kucukdeveci case of 2010 the issue was about age discrimination. The court said that the Charter
is sufficient to configure this situation and thus Article 21(1) of the Charter can be interpreted for
seeking ground on the basis of discrimination.

The European Court of Justice in GoogleSpain ruled citizens to the right for their private data
removed from companies which gather personal information for financial gains, and is not needed
anymore. The decision did not include newspapers removing articles. Hence, the right of privacy is
more important than economical gains, and in a few cases, the public’s want for private information.
The European Court followed the decision of the Spanish Data Protection Agency that stood on press
freedom, and did not follow the request to remove an article on personal bankruptcy from the
domain of the press company.

The Google Spain case was followed by Maxmillian Schrems v Data Protection Minister. In this case
the claimant, an Austrian national, bought in a complaint to Irish Supervisory Authority against
practices of the US saying that they do not offer sufficient protection from the surveillance by the
public authorities of the transferred data. However, the argument was rejected on a ground that
under ‘Safe Harbor Scheme’ the US ensures sufficient protection of all the data transferred to it.

Apart from the said protection, the Charter can be given effect by invaliding certain part of EU
measure. This can be witnessed in the cases of Volker Markus Schecke of 2010 wherein the court
invalidated EU measure in respect of publication of names of recipients in respect of the European
Agricultural Guarantee Fund. Additionally, in Scarlet v SABAM, the court said that intellectual
property rights should be protected of customers against the internet service providers.

Moreover, in cases DEB Deutchshe and Chakroun the court had given effective remedy to people if
their fundamental rights are violated. Therefore, in DEB case the court despite absence of public
interest recognised the effective remedy of legal aid. In essence, the Charter is considered effective
in respect of ECJ interpretation of different Charter provisions.

The charter, following the Lisbon treaty, has primary legal status within the domain of the Union.
However, the Union element must still be invoked for the rights to be actionable. Consequently,
purely internal situations do not fall within the range of the charter, nor do the issues regarding
fundamental rights which occur in an area not under EU’s competence (Vinkov).
The most quoted right in the history of the Court of Justice is the right to an effective remedy. The
leading authority is the case DEB Deutsche Energiehandels. The aforementioned case concerned that
whether the right to an effective remedy is violated when the national legislation refuses the legal
aid to people in absence of a ‘public interest’. The court held that the principle in art 47 of the
Charter shall be interpreted. As interpreted it states that it is not impossible for legal persons to rely
on the principle and that the aid granted in respect on that principle possibly will cover the cost of
legal advice or representation. Well, when applying the measures, the Court has not only considered
Member states measures but also ruled on how the institutions should take into consideration the
fundamental rights present in the Charter when acting.

The claimant, subsequently, brought the case before the High Court of Ireland. In this case, the Court
stressed on the role of the national supervisory bodies on protecting the personal data as provided
under the Charter. Further in the case, the Court went on to decide whether the Safe Harbour
decision was valid or not. Upon consideration, the Court deemed the commissions Safe Harbour
decision as invalid.

Also, following the topic, it is important that one must take note of opinion 2/13. A draft accession
agreement was made and in Dec 2014 the aforementioned ‘opinion’ assessed the question that is
the draft providing the accession of EU to ECHR compatible with the treaty bodies? Taking into
consideration a few aspects of EU i.e. direct effect and primacy, the court ruled that the draft was
not compatible with EU law. The court, in its opinion, did provide some amendments that were
supposed to be carried out before EU could accede to the ECHR while still being in compliance with
EU law. In conclusion it can be said that the Court take into consideration the EU institutions and
member states when consulting the charter. Thus, disagreement with the statement laid out in the
question.

In Van Gend Loos, the CJEU laid the foundation not only for its own doctrines of individual rights
and direct effect, but also opened the way for creative use of the preliminary ruling procedure to
develop EU law through the “vigilance of individuals”.

Answer;

This question deals with the importance of preliminary ruling procedure for the development of EU
law. As per the European Union law, in the event of contention between domestic law and the law
of the European Union, EU will always come out on top. It is clear through the Van Gend en Loos
(1963) where ECJ obviously expressed that the international law is better than the domestic
enactment and that EU law establishes another lawful request in worldwide law, for whose
advantage the states have restricted their sovereignty through inside limited fields.

Article 267 TFEU provides that the CJEU shall have jurisdiction to give preliminary rulings concerning
the interpretation of the treaties, the validity and interpretation of acts of the institutions, bodies,
offices or agencies of the Union where such a question is raised before any court, that court may if
consider that a decision on the question is necessary to enable it to give judgment, request the court
to give a ruling thereon. The function of Article 267 TFEU is to ensure the unity of interpretation of
Union law. The Preliminary reference system has been very successful. Many important cases have
come to the court of Justice through this Article 267 TFEU reference, often from courts law down in
the national court of judicial hierarchy.

In the context of references to court for preliminary rulings under Article 267 TFEU, the cases such as
Van Gend en Loos, Costa v ENEL and Defrenne 2 concerned with the interpretation of EU law,
enables the CJ to develop the crucial concepts of direct effect and EU law supremacy. International
Handelsgesellschaft, stauder and royal Scholten hoing questions the validity of EU law led way to the
incorporation of general principles of law into the EU legal order. The principle of state liability in
damages was laid down in Francovuch in preliminary ruling proceedings. In all areas of EU law, the
Article 267 TFEU procedure has played a major role in developing the substantive law.

The preliminary ruling is not an appeal procedure. It provides that the national courts may apply to
the CJ for a ruling of validity points of EU law or interpretation necessary to resolve dispute before
them. The national court should decide to make a reference or not. The court cannot compel a
reference, neither can parties to the proceedings. It is an example of shared jurisdiction depend
upon the success of mutual cooperation. In the case of De Genus en V Robert Bosch Gmbh, the court
stated that it was the first case to reach the CJ on application under preliminary ruling procedure.

Moreover, the trail judge has discretion as to whether to refer in regard to Article 267(3) TFEU, the
compulsory reference. Consider the case Rheinmuhlen in which the law of stare decis does not apply
between the European courts and the English courts, it is possible for a first instance judge to refer a
cause to European court on an issue which is already been decided. Any court or tribunal within the
legal system of the member state is qualified to refer under Article 267. The case Dorsch (1977) lists
useful criteria as to what court/tribunal is a tribunal is established by law, it is permanent an
adversarial procedure, it applies rule of law and it is independent and impartial. The jurisdiction of
the tribunal is compulsory. The tribunals which have been allowed to ask for a preliminary ruling are
administrative tribunals (van Gend en loos). Appeals committee for general medium (Brook meulen
1981). As mentioned above Rheinmuhen 1974 that the preliminary rulings can be sought by all
courts in member states.

Article 267 (2) TFEU states that the courts/tribunals may if it considers a decision on a necessary
question needs then request the CJEU to give ruling. All courts and tribunals have a discretion to
refer. However, if the pending case referred before a court/tribunals of a member state against
whose decision there is no judicial remedy under national court, the court/tribunal shall bring the
matter before the CJEU- Article 267(3) TFEU. The purpose of Article 267 TFEU (3) is to prevent the
emergence of a body of national law not in accordance with EU law as mentioned in Hoffman La
Roche v Centraframe (1977). The CJEU has the discretion to refer to hear the preliminary ruling
reference. For example in the situation where the CJEU has already answered the question Da Costa
(1963). Furthermore, the court has laid down the CILFIT exceptions to the obligation to Article 267
TEFU, the court held that there is no obligation to refuse if it is not necessary that is if the question
of Union law will not determine the outcome of the case where the court of justice has already given
ruling, where the matter is an acte clair.

The court of Justice stated the national court or tribunal must be convinced that the matter is
equally obvious to the courts if other member states and to the court of justice itself, that the
national court must bear in mind the multilingual nature of Union law. The express act eclair means
that the correct application of Union law is to obvious that there is no scope of any reasonable doubt
in which the question raised is to be resolved. Acte Éclair applies where the court has already given a
clear ruling on the same point in a previous case.

VAN GEND set the first milestone for EU supremacy and established the doctrine of direct effect.
Direct effect has two forms of applicability, horizontal and vertical. Horizontal direct effect is when
the case if on the same level for example citizen bringing a claim against another citizen. Legally,
private companies have an individual corporate personality and thus can also bring a claim or are
claimed against under horizontal direct effect. Vertical direct effect is when a citizen of the EU brings
a claim to the court against the government or a body higher in status, these are cases where claim
is brought against public authorities. In the case VAN GEND, it was concluded that matters regarding
treaties of the EU can have both horizontal and vertical effect that means that violations of treaties
can be brought against both individuals and the government. In the case, article 30 prohibited taxes
on borders. Under direct effect, these were removed and the claimant was able to enforce their
right under EU law. EU regulations too can have both horizontal and vertical direct effect. Directives
require the member state to actually do something within a certain time limit. Only vertical direct
effect is applicable because individuals should only be able to bring a claim against the state in order
to get their rights. In the case of Defrenne v Sabeena no2 it was reaffirmed.

However, there is a hack when it comes to the directives where these can be used indirectly. Here,
once the directive is made part of the domestic legislation, it can be used horizontally against other
citizens. But this can only happen when the time limit I sup and this was seen in the case of Pubbles
Ministero v Ratti.

After VAN GEND, different cases too upheld the possibility of EU matchless quality, the House of
Lords was gone up against with a troublesome circumstance on account of ex parte Factortame. The
ECJ responded to that if the sole hindrance to the utilization of EU law that a public court was gone
up against by for a situation was a standard of its public law, at that point such a standard should be
saved, which implied that the House of Lords was approached to put aside the standard of
Parliamentary power and consequently, the Merchant Shipping Act's application until the ECJ gave
its last decision.

The precept of EU Law incomparability was articulated by the ECJ in Costa v ENEL where the ECJ had
pronounced that the participation of the EU by part states implied that the part states had moved
their sovereign rights to the EU for issues inside the space of EU law and had consequently
deliberately given up their controls over issues which fell inside the competency of the EU.
Accordingly, matters, which were represented by EU law, would be chosen as per EU law as opposed
to the laws of the individual part states.

The principle of direct effect led naturally to the recognition of the primacy of EU law. If EU law
was to be applied by the natural courts, it has to be applied across the EU as a whole. There was
there for no room for the idea that application of EU law might conflict in some member states
with national law. The principle of primacy is inherent in the very idea of an EU based on the rule
of law. Discuss.

Answer;

The European Union is the world’s most successful invention for advancing peace. (John Bruton)

This question is concerned with the two fundamental doctrine which are direct and indirect effect.
The answer will discuss these doctrine in detail and main focus on the fundamental supremacy of EU
with some case law examples. EU takes priority over national law in its sphere of application and
that domestic courts are under obligation to give full effect to EU law.

Individuals can rely on EU law before the national courts, where a member state does not provide
the full extent of the rights, that individual should enjoy by virtue of the EU measure. As we know
that effective application of EU law and individual rights protection are two sides of the same conus.
In accordance with the principle of supremacy, the CJ has developed three inter-related doctrine,
direct and indirect effect.

Direct effect means that subject to certain conditions. Union law creates right and obligation which
individuals may rely on and enforce in their national law. The provision of EU law which are found to
be capable of application by national courts are termed as directly applicable. The question of the
direct effect of a treaty article was first raised in Van Gend en Loos. In this case, the court decided
that an individual can rely directly on a treaty article and enforce it in their own national court. This
doctrine is called the direct effect principle.

The TFEU merely provide in Article 288 that regulations are directly applicable. In a series of
landmark decision, the CJ has extended the principle of direct effect to treaty articles, directives,
decision and even to provide of international agreements. In Van Gen den loos, the court stated that
“the community constitute a new legal order of international law for the benefit of which the states
have limited their sovereign rights, albeit within limited fields and the subjects of which comprises
not only member states but also their nationals”.

In this case, the court held that the Article of EEC treaty could have direct effect if it was clear,
unconditional and its operation did not require a legislative implementing measure on the part of
the state. If these conditions are fulfilled individual could enforce the Article directly in their national
court. In this case, the court also imposed a fourth condition, that the Article must lay down a
negative prohibition rather than a positive obligation but this condition was dropped in later cases.
As a result, direct effect of treaty provision has become the norms rather than the exceptions.

Generally, in Van Gen den loos, the parties were in a vertical relationship, that is the case was
between an individual and member state. In case of Defrenne v Sabena (1976), the court held that
Ms. Defrenne could bring action against her employer for breach of treaty article requiring equal pay
for man and women. Article 288 TFEU defines the relationship between secondary legislation and
national law/ it states that a regulation is directly applicable in all member states. Regulation can be
relied by people in their national courts and have direct effects. Consider the case Commission v Italy
the court held that the customs duties are prohibited irrespective of the purpose for which the
duties were imposed while in Commission v UK (1979) the Uk failed to implement Article 21 of
Tachographs regulations, Article 4(now repealed) on time.

However, the position of direct effect with regard to international agreements is quite complex.
Consider the case of international Fruit company v Produkschop Voor (1972) whether the GATT
provisions have direct effect or not. The court held that the terms of provisions are different from
EEC treaty and its provision were not precise and unconditional for direct effect to apply. In Germany
v Council (1994), the court stated the GATT provision could prevail over an EC provision but only if
the relevant EC provision expressly referred to the GATT provision. Although Article 288 TFEU
doesn’t state that the decisions are directly applicable, they are binding in their entirety. The court
of justice held that they have direct effect.

The direct effect of directives was established beyond doubt in a claim based on a free standing Van
Duyn v Home office. The court held that Mrs Van duyn was entitled to invoke the directives directly
before her national court. It is suggested that even if the provision in question was not clear the
matter could be referred to the CJ for interpretation under Article 267 TFEU. Van Duyn demonstrates
that it is not necessary for a provision to be particularly precise to be deemed sufficiently clear.

Moreover, a directive cannot be directly effective before the time limit for implementation has
expired. A claim was tried unsuccessfully in the case of Pubblico Ministero v Ratti, the court of justice
held that since the time limit for implementation of one of the directive had not expired, it was not
directly applicable. An individual rely on the directive for which the implementation date has passed.

Consider the Man gold case, the court of justice strengthened the ruling. According to ruling, the
obligation on the national courts to set aside domestic law in conflict with a directive before its
implementation has expired appeared to be even stronger where the directive aims to provide a
framework for ensuring compliance with general principle of Union law.

The doctrine of direct effect is an example of ECJ developing principles which strengthen the impact
of union law within national legal system. It enables Union law to be enforced, not just by
commission under the treaty rules for enforcement but by individuals in their national courts
creating a system of dual vigilance.

In contrast to deal with the problem for individual who could not rely on directive because the
conditions for direct effect were not fulfilled, the court developed the concept of indirect effect. The
principle of indirect effect was introduced in a pair of cases decided shortly before Marshall namely
Von Colson. The court’s situation in Von Colson was ingenious on vertical or horizontal of directives,
it turned to what is now Article 4(3) TFEU. It requires states to take appropriate measures to
measure fulfilment of their Union obligations. The CJ’s considered the scope of indirect effect
doctrine in some depth of Marleasing. In this case, a directive cannot of itself impose obligation on
private parties. It concluded that the national courts were required to interpret domestic law in such
a way to ensure that the objectives of the directives were achieved.

There are three main constraints on the use of the doctrine of indirect effect as far as it affects the
national courts, which are the limits of natural language, no imposition of criminal sanction and non-
retro activity. National courts are only required to carry out this duty so far as possible, so if there is
no relevant national law or if it is relevant, it may not be possible to use the doctrine.

Furthermore, the principle of supremacy of Union law has been developed by the ECJ. It is implicit in
Van Gen den loss (1963) which founded the doctrine of direct effect. It was stated explicitly in Costa
v ENEL (1964) where the court stated that member states has limited their sovereign rights and that
community law could not be overridden by domestic legal provision. In International
Handelsgeshellschaft GmBH (1970) case, the court held that community law took precedence even
over a fundamental rule in the German national constitution. The clearest statement of the
implications of the supremacy of community law in Simmethal (1978) where the court held that the
national courts have a duty to set aside provisions of national law which are incompatible with EC
law. The supremacy of Union law over national law is now stated in a declaration attached to the
treaty of Libson.

In most member states, the conceptual foundation from acceptance is not the special nature of EU
law but their respective constitution. English courts have accorded priority to community law not on
the ECJ’s logic but on the basis that ECA (1972) gives community law priority. In Mccarthy v Smith,
Lord Denning stated that if UK legislation was deficient with community law, it was bounden duty of
the courts by virtue of S.2 (1) and (4) of ECA 1972 to give priority to community law.

Furthermore, with the issue of supremacy in Factortame No 2, the ECJ reiterated that a national
court which in a case before it concerning community law considered that the sole obstacle which
precludes it from granting interim relief is a rule of national law must set aside. In conclusion,
according to above discussion, EU law prevails over national law with certain case law examples.

Q8. ‘The concept of primacy of European Union law is an important tool to guarantee the uniform
application of European Union law within the Member States. Primacy should be recognized by all
courts and authorities of the Member States, as a varying practice may cause legal uncertainty.’
Discuss, tracing the evolution of the principle of primacy and its reception in the EU Member
States.
The doctrine of the EU supremacy is not stated in the Treaty but it the ECJ has held persistently that
it has been implied into the treaty. EU supremacy has been developed through its origin of the new
legal order.

In Van Gend en loos article 25 of the Treaty was held to be incompatible with the Dutch law so the
issue arose whether article 25 was directly effective. It was held that Treaty is more than a mere
agreement which simply creates obligations between contracting states since the treaty not only
concerns the states but the individuals. The ECJ also held that EU law was not just tools of
international law but had direct effect because the community found a new legal order of
international law under which the member state has limited sovereign rights although within limited
rights. Even though the question of EU supremacy was not directly raised here, it arose directly one
year later in Costa v. ENEL.

In Costa there was breach of Article 37, 93, 95 and 102 of the EC Treaty. Over here the ECJ strongly
established the doctrine of EU supremacy, as it held that Treaty was different from other
international treaties since the EU established its own legal system which their courts were under
the duty to apply.

The basis for doing so lies in the ‘independent nature of new legal order’ which was accepted by the
member states in the place of ‘permanent limitation of their sovereign rights’. This has been
substantiated by the courts through Article 249 which states that regulations should be binding but
the problem was that this talked only about regulations and the ECJ wanted the supremacy of all EU
law.

The court held that law arising from the Treaty (an independent source of law) be overridden by
domestic legal provisions and made it clear that any act incompatible with that of the treaty will not
prevail. So the issue that arose now was what would happen if a constitutional law of a member
state was in breach of EU law. This issue was resolved in the case of Internationale
Handelsgesellschaft (1970).

This was a case in Germany where the highest source of law was the constitution and any law
incompatible with it would be invalid. It was held that the legality and validity of the community law
can only be judged in the light of community law and national law. The highest German court
rejected the German provision.

Simmenthal case

Students should then discuss the possible clashes with national constitutional

Germany UK etc.

2017-A

‘Issues such as direct effect, supremacy and human rights are simply too important to await action
by the Council and the Commission. The very lack of strong political institutions explains the Court
of Justice of the European Union’s (CJEU) bold activism.’

This question requires discussion on whether the doctrines of direct effect supremacy and human
are so vital that they cannot wait for action by council and commissions rather there should be
strong political institutions. These statements are correct to some extent because most of the
developments in these doctrine comes about from CJEU to answer this question we shall discuss
these doctrines are so ‘essential’ and how they are linked (all of them are about ensuring the full
application of EU law).

how the Court of Justice has helped advancing European integration in these matters, even though
there was little to rely on in the Treaties. As a minimum, students will need to talk about Van Gend
en Loos, Costa, Simmenthal,

(with better papers discussing the) challenges raised by the principle of direct effect with regards to
directives as well as making reference to the fact that the reception of the principle of supremacy in
the Member States is not always easy. (the incompatibility thing)

human rights case law, and should include also basic analysis of the post-Charter case law such as
Test Achats, Fransson, Meloni, Digital Rights Ireland, Google Spain.

2017-B

The case law on supremacy and direct effect not only put the individual at the core of European
integration, but also the European Court of Justice.’ Discuss.

This question requires discussion on whether just the individuals are at the center of European
integration or the ECJ is as well. This statement is correct because the doctrines of Supremacy and
direct effect do not come directly from treaties, rather they come from ECJ judgements. To answer
this question, we shall discuss Ven Gend and Costa v. ENEL and how they play an important role in
European integration.

The Court held that the Treaty doesn’t only enforce obligations on the individuals of the Member
States but also give them rights, which is the duty of national courts to protect. Article 25 was held
to produce direct effects. Meaning that Community law could, under some circumstances, create
rights for individuals of the Member States which must be protected by the national courts. If
individuals would be stripped off their right to raise Community law in courts, then they would get
individual rights. The Treaty article were given a direct effect to safeguard the effectiveness and
uniform integration of Community law in the Member States and the Community.

Direct effect cannot be brought about for every treaty article hence a set criteria was established to
ensure that: “clear, unambiguous, unconditional, containing no reservation on the part of the
Member State, and not dependent on any national implementing measure.” The doctrine of direct
effect was brought about by ECJ and is not found in treaty. This case shows that Community law is a
separate legal system similar to the one in member states.

The supremacy doctrine was more clearly laid down in the Costa v. ENEL case. In this case Van Gend
en Loos was upheld: EC Treaty’s creation of its own legal system which is different other
international agreements. This new legal system is an integrated part of the legal systems in the
Member States and the national courts and the national courts are obliged to follow Community
law. Furthermore, following from Van Gend en Loos Member States have limited sovereign rights,
even though in limited fields, and created a new legal order enforceable both on individuals and the
Member States.

The Court also state that the application of Community law cannot differ in each Member State as it
would weaken the effectiveness of Community law and go against the coherent legal system. This
may endanger the full achievement of goals of Article 10 of the EC Treaty: member States must fulfil
Treaty obligations. This will also prevent any discrimination between member states. Without this
treaty, obligations cannot be unconditional rather merely contingent.
that the precedence of Community law was declared in Article 249 of the EC Treaty. The Article
confirms that a regulation shall be binding and directly applicable in the Member States. The Court 6
considered that such a provision would be meaningless if a Member State could choose not to follow
it on the ground of national law. The Costa ruling therefore was an audacious step by stating that the
Member States have limited their sovereign rights to the Community and transferred power to its
institutions. (copied not paraphrased.)

In Costa the issue was whether if a provision of ordinary national law was incompatible with a
provision in the Treaty, what would happen. The next issue is what happens when a national
provision which is also a constitutional provision is against a treaty provision?

This issues was resolved in Internationale Handelsgesellschaft The Court held that Community law
should is supreme on all provisions of national law even if part of constitution.

Practical implications for the doctrine of supremacy came about in Simmenthal. The ECJ statement
concerned the treaty provisions and directly applicable measures of the institution. Furthermore,
incompatible measures are not void rather inapplicable. Member states’ power may be limited even
where the incompatibility seems to be indirect.

Factortame: The ECJ found in favor of the Spanish fishermen. It held that the effectiveness of EC law
would be hindered if a national law could obstruct a national court from giving them relief with
respect to Community law. The Court stated that national law should be set aside if it comes in
between of giving relief from community law. The ECJ stated that where, in a case involving
Community law, a national court considers that the sole obstacle to the granting of an interim relief
is a rule of national law, Community law requires to set aside that rule. The ECJ reiterated this
principal in Simmenthal II and held that directly applicable provisions of Community law make any
conflicting provision of national law inapplicable. The British court must disapply the Act of
Parliament since it was inconsistent with the EC Treaty. Factortame had a considerable impact in the
United Kingdom where parliamentary sovereignty is a fundamental constitutional principle.21
(factortame just copied)

dual character of the supremacy doctrine

resistance reactions from upper national courts – such as the German Constitutional Court and UK
(basically talk about member states)

Miller

Q7. ‘The European Court of Justice has described the concepts of direct effect and supremacy as
“the essential characteristics of the Community legal order”.’

This question requires discussion on whether the doctrine of supremacy and direct effect are
important pillars of Community legal order. This statement is true…

why these two doctrines are so ‘essential’ (mainly both of them need to ensure the full application
of EU law).

In this judgement, the Court states that European law not only engenders obligations for EU
countries, but also rights for individuals. Individuals may therefore take advantage of these rights
and directly invoke European acts before national and European courts. However, it is not necessary
for the EU country to adopt the European act concerned into its internal legal system.
As per the European Community law, in case of conflict between European law and Member States’
law, EU law prevails. ‘This has been observed since Van Gend en Loos in 1963 where the ECJ held
that ‘the Community establishes a new legal order in international law, under which States have
limited their sovereign rights, although within limited field’.

New legal order requires New legal procedures for the protection of new legal benefit it
established under it. The doctrine of supremacy of Community law had no foundation in European
Community Treaty, but was formed through ECJ’s development of ‘new legal order’ Although Ven
Gend is mainly about direct effect but one of its important factor is also the commencement of
‘new legal order’. This reiterated that community isn’t just a normal international organization. In
essence it is an independent body having a substantial effect on the national legal systems of
Member States.

for instance the importance of direct effect doctrine as clarified by the CJEU in Van Gend en Loos is
to empower individuals to use EU law to protect their rights and at the same time they are charged
with the task of enforcing EU rights. They can point then to some of the controversial issues such as
horizontal direct effect (possible for Treaty provisions) and for Directives (not possible – restrictive
case law) Students should discuss the significance of the doctrine of supremacy and in particular its
impact on the use of international treaties and the new concept of limited sovereignty. A reflection
on the very rigid stance adopted by the Court in cases such as Costa and Simmenthal should be
developed as the question clearly invites the students to reflect on the strategic use of supremacy as
to ensure the effective and uniform application of EU law via national Courts. Again some tension
between CJEU and national Courts can be discussed (see in UK Thoburn). A case such as Francovich
on state liability can also provide some useful pointers. FROM ER.

FREE MOVEMENT OF GOODS

‘It seems that the Keck era has come to an end. In its most recent case law on free movement of
goods such as the Italian Trailers, the Court of Justice of the European Union (CJEU) returned to an
overbroad definition of measures having equivalent effect to quantitative restrictions. The Court
used the notion of ‘market access’, and put the emphasis on the application of the proportionality
test.’ Discuss.

This questions calls discussion on whether the Keck case is not relevant anymore and whether the
market access and proportionality test are more important now. The statements are correct to a
great extent. To answer this question, we will discuss the Keck principle of non-discrimination to
article 34. Furthermore, we will also talk about market access test as laid down in Dassonville and
Cassis de Dijon (this test was laid down here?)

a non-discrimination approach to Article 34 as advocated in Keck or a market-access logic, as

Italy v. Commission (Trailers case)

Scotch Whisky:

In this case the court held that minimum alcohol pricing was caught by Art 34 TFEU and applied the
Trailers Market Access test. It hindered access to market because it prevents imported goods to take
advantage of lower retail prices since UK set a minimum price for alcohol. This case also discussed
the justification of the measure on health grounds and whether it was proportionate. The following
health concerns were raised: reducing of alcohol consumption both for particular consumers for
which the consumption is dangerous and also the public at large. The CJEU held that taxation instead
of MUP could both discourage alcohol consumption but also be less restrictive of trade. The CJEU
mostly decided this because of Scottish two-fold requirement.

Schmidberger can Austria be held to be in breach on Article 34 of TFEU by not preventing arrests
which blocked a major road. There was restriction to the rights of S but it was justifiable because the
right to assemble and protest was given under article 10 and 11 of the ECHR hence interfering with
the rights of the protestors would be disproportionate. There was no state liability since there was
no unjustifiable breach of article 34.

soft proportionality (as for example in Omega) and hard proportionality (such as Rau)

implications of applying such tests in preserving national sovereignty and promoting national
interest

2016-A

Question 5 ‘The essence of the Dassonville (1974) test is that, as a matter of law, a hindrance to
trade might occur, and the purpose or intent behind the measure does not seem to be relevant…’ 8

In what ways and to what extent has the approach of the Court to the free movement of goods in
Dassonville (1974) been modified in its subsequent case law? Is the Dassonville (1974) test still of
relevance?

This question requires discussion on how the Dassonville test has been reformed over the period of
time and if it is still being followed to day. The Dassonville test has gone through some changes over
the period of time. Even though it may not be exactly the same as it used to be but the law
somewhat still revolves around it. To answer this question, we will discuss the cassis de Dijon case
and then how Keck tried to draw limitations to this test which appeared to have changed. And how
cases like Italian trailers and GIP have brought changes to Keck.

Dassonville defined the MEQRs as a those trading rules enforced by the member states which can
potentially result in hindering, directly or indirectly, actually or potentially, intra-community trade.
Under Dassonville it was enough that the particular law was capable of causing hindrance to trade
and it need not actually hinder trade. As seen in the case of Buy Irish the campaign did not result
they hoped for (hindrance to trade) but the campaign was still held to be an MEQR.

This case enforced the widest scope which meant that anything that could potentially effect the
intra-Community trade, even indirectly, would be caught by Article 34. The courts believed that such
rules were very broad and gone too far that it may appear to challenge the national laws.

Sunday Trading case

Cassis is an important in case which illustrates how the courts tried moving away from the earlier
Dassonville decision.

The courts stated that in the absence of any directive or regulation a member state can enforce its
laws on domestic goods and these laws will be enforceable on imported goods only if:

a. Uniform enforcement of law on domestic products

b. Mandatory requirement: the law is vital for the safety of public

c. It is proportionate (not more restrictive than it needs to be to achieved the prescribed goals)

The mostly importantly and widely discussed is mandatory requirements.

The broad definition of MEQR in Dassonville together with Cassis de Dijon (indistinctly applicable
measures) created problems for national law based on article 34. Hence they required justification
under article 36 or Cassis de Dijon mandatory requirements.

Borough Council v. B&Q plc: Restriction on both domestic and imported goods, by the state on
selling particular kinds of goods on a Sunday. Even then the ECJ needed the rule to be justified.

Criminal proceedings against Keck and Mithouard: Keck put a cap on the number of measures
under article 34 TFEU.

The court held that: the article would not apply to particular selling arrangement if it is applicable
to everyone equally and it effects in the same way (in law and in fact) the marketing of both kinds
of products,

Hence two types of trading regulations came to life: product requirements and selling
arrangements:

Product requirements posed those features which would need to be changed for trade and hence
would inflict dual burden. Such as alcohol percentage in Cassis de Dijon was called a product
requirement due to which there was obstruction for foreign producers, and so fell under Article 34
(discriminatory measures).

If there is a need for physical altercation to the product or its ingredients: product requirement.

Selling arrangement on the other hand only concerned with the manner in which the product is
marketed rather than the characteristics of the product itself. For e.g. Sunday Trading regulations.
This means no “dual burden” hence not under Article 34. Things like advertising (Hünermund), and
methods of selling come under this.

Clinique: The name of the product falls under this category but in this case the restriction on name
was held to be disproportionate by the court.

There is criticism on the KECK test because where the selling arrangements are too narrow it creates
a restriction on marketing for foreign goods as Lord Advocate in Leclerc-Spielec stated that there is a
greater need for foreign products to be marketed and this restrictive approach was not really
helpful. Since domestic products already known to people by the imported goods required
advertisement to enter market.

effecting advertising fell under selling arrangement and was not prohibited under article 34.
However, the court held that as per KECK selling arrangement must not act as a hindrance to
access to market. And in this case it did had the effect of hindering access for imported products
so it would be prohibited under Article 34.

As for the public health as grounds for the rule to be applied it was for the courts to state by
taking into account proportionality test and whether the same effect could be achieved by an
action that would had a lesser effect on trade.

The Keck continues to be criticized as seen in the case of Commission v. Italy where the courts held
that the prohibition by Italy had an effect equivalent to quantitative restriction on imports as per
article 34. It is important to note that courts preferred to follow an ‘access to market approach’
instead of ‘use arrangements’.
This case meant that if a measure failed the Keck test it will by default be held to be in breach of the
market access test. However, if it passes the Keck test it will still have to pass the market access test
on its own. Hence, regardless of how a measure falls under the Keck test, Commission v Italy
(Trailers) will always be central to it.

This shows that the Keck test is not as effective as it used to be, it is incorporated by Commission v.
Italy. There are now three types of measures which will fall foul of Article 34, distinctly applicable
measures, indistinctly applicable measures and measures which prevent access to the market.

n Leclerc-Siplec AG Jacobs held that the market access test like Dassonville can end up in including a
lot of national regulation so there should be a minimum threshold for it. A bit of turn back to Keck.
Dassonville test has been ‘exported’ into the other economic freedoms (most notably services).

In Case 41/74 van Duyn v Home Office, the European Court of Justice recognised the possibility for
directives to have direct effect. However, the way in which this doctrine was applied so on created
major difficulties.” Discuss the development of the doctrine of direct effect of Union law by the
European Court of Justice and how the Court has attempted to find different ways of overcoming
these difficulties.

This question requires us to talk about how the doctrine of Direct Effect (DE) has developed over
time and what problems these developments catered. To answer this question first we will give a
brief introduction of what the direct effect is: an implementing measure for effective enforcement of
EU laws. Furthermore, discuss what directives are and how they are implemented by way of
exceptions to requirements of DE e.g. enforcing directives even when it requires further
implementing measures. This doctrine enables development in the effectiveness of community law
hence it remains relevant to this date as it keeps on developing to resolve difficulties.

This principle is developed through judgments of the case law in the ECJ. The main aim of direct
effect is that individuals should be able rely on and enforce their rights and obligations created by
the EU in the national courts. This saves courts’ valuable times and money because most cases are
resolved within the member state. One of the important cases in the development of this principle is
of Ven gend en loos. Prior to this case, individuals’ rights were left to the discretion of the
commission and member state. This case created a ‘new legal order’ and in this particular case
established the position of the Treaty Article (Article 12 of EEC) as such that it could be relied upon
by individuals in their national courts.

In this case three part criteria were set for DE effect to take place. Firstly, it should be clear and
precise (Azienda Agricola). However, there is an exception to this rule as seen in the case between
Germany and UK where the language wasn’t certain, even then the courts opted for direct effect.
Secondly, it must be Unconditional. Although in (Van Duyn v. Home Office) it is stated that
Exception to law will not hinder direct effect from taking place. Lastly, it shouldn’t be dependent on
further legislative measures for its function. Under its exception is the application of directives.
These exceptions show courts’ flexible approach as such developments allows DE’s applicability on
vast array of laws. On the same time this also has the impression of creating uncertainty. The
conditions should have been so comprehensive in the first place that they could on their own cater
all types of laws. We will now look at these problems and how they are dealt with.

There are several kinds of union measures, we will now look at how each of them has the DE.

The first one is regulations. Article 288 (TFEU): regulations are ‘directly applicable’. This means
regulations automatically form part of the national law hence the individuals can easily rely on it in
national courts which naturally means that it will have a direct effect. However, sometimes
additional measures are required for before Direct Effect can take place. (Commission v. UK
(Tachographs))

Moving on to the Directives, Article 288 TFEU: directives must be binding on the member states. The
outcome of the directive is binding but how the member state choses to do is up to them because
they are only provided with an outline of the law. It was thought that directives can never have
direct effect because they need further implementing measures. Nonetheless, the case of Van Duyn
v. Home office changed everything. It was held that a directive can have a direct effect if its 1) clear
and unambiguous 2) unconditional 3) the deadline of the directives has passed. Directives will have a
direct effect when the time limit/deadline for its implementation has expired as confirmed in
Pubblico Ministero v. Ratti. This development in the law establishes the effectiveness of the EU law
because the Member states’ own wrongdoings should not hinder the individuals’ rights to rely on
DE.

Another problem that arises here is that DE for directives can only take place vertically (individual
against the state) and not horizontally (individual against an individual). Since it is the member
state’s fault and not the individuals to not implement the directive. (Marshall v. South Hampton and
South West Hampshire) Furthermore, Faccini Dori it was stated that directives should also have
horizontal effect however, it was denied. Although one thing was done to allow more cases to fall
within the domain of direct effect, the definition of state was widened. So the emanation of the
state meant that any individual who gives public service under the authority of the government.
Foster v. British Gas, extended this approach by defining ‘emanation of the state’.

As per ECJ these can be described as state

1. A body providing a public service

2. It must do so pursuant to the measure adopted by the state

3. And under the authority of the government

4. Its powers must be a little more than an individual’s

This wide definition allowed direct effect for most directives which is imperative because most of the
law comes in the form of directives and if relied on strict measures it will become to enforce
directives.

Another method of incidental horizontal approach was created with introduced a triangular situation
(theoretically vertical direct effect but realistically incidental horizontal effect) enabling individuals to
hold state liable even when claim between two individuals (Security International v. Signalson).

Furthermore, development through indirect effect of directives also came about. It was problematic
when directives could not be enforced through direct effect because it did not fulfill the criteria. In
Von Colson (1984) ECJ held that the courts must interpret national law so far as possible in lines with
the goals of the Directive. The reason behind saying this is so that courts-as part of the state- are
obliged to follow Article 4(3) of TEU which makes abundantly clear that courts have the duty to
cooperate and interpret national laws in a manner that gives the same result as the directive.

Even if all these developments don’t help avert the problem of enforcing direct effect the doctrine of
state liability can always be imposed as held in the case of Francovich. Which states that a state can
be held liable for not enforcing the directive on time or appropriately.
Direct and Indirect Effect-Essay

This answer will mainly have a debate on the doctrine of direct effect and we will also raise
arguments which will show that EU law is supreme and how does the EU law have a binding effect,
moreover we will also discuss situations where it cannot be binding. We will start by discussing the
direct effect first, the direct effect was first brought up by the courts by relying on some judgements
which sole purpose was to give the businesses and legal persons some favor so that they could
implement EU provisions in national courts. As it has been seen that direct effect was not given
much importance in the treaty but the case of “Van Gend En Loos” threw much light on direct effect
and this was only for the benefit of the individuals because the court failed to give them favor by not
forming law in the given time period. This case stated that if there is a law which is clear and precise
moreover it doesn’t need any further implementation then any individual can seek guidance from it
and can sue his national court by relying on it. Moreover, it also was added hat this can only be
applicable vertically because an individual can sue the court and should not be applied horizontally.
This was the very first step taken to make sure that the rights of people are protected.

Now, after this there were many confusions which were being seen in scenarios where a person
wanted to implement his rights against other which basically come under the horizontal direct effect
of treaty articles, to clear the confusions regarding the horizontal direct effect the case of “Defrenne
v Sabena” was brought up in which the issue was regarding the discrimination on pay which was due
to the gender of the employee and the employee was permitted here to sue the employer. This
shows that the doctrine also extended the concept of directives which was related to direct effect
and it could be applicable to individuals and public bodies without considering the fact that
legislation exists on them or not.

Moving on to directives, this law is very important in the formation of law by the EU parliament.
Directives make sure that if there has been any law formed by the EU parliament then it is must for
it to be also approved by the domestic parliament. This statement didn’t match at all what was said
in the case of Van Gend En Loos that is because of the third requirement which was that the law
should not need any further implementation but here as we can see that it is a mandatory
requirement to get it approved by domestic parliament too which means that further
implementation was required so there was a huge chaos created regarding the third requirement
given in the case of “Van Gend En Loos”, moreover it was also stated in Article 288 that “a directive
shall be binding as to the result to be achieved…”. This chaos was brought to an end when the case
of Van Duyn came, this case laid down that as per directives are concerned it is for sure that they
have a vertical effect as it was also mentioned in the case of Marshall. It was further also mentioned
in the case of “Van Duyn” that the third requirement of implementation should not be relevant in
situation of directives. The national courts also relied on article 267 for taking guidance from ECJ
regarding the concern of implementation of directive and it was thus concluded that any person can
rely on directives, moreover they should be clear and precise and the requirement of
implementation does not apply on them. It is also important to mention here the direct effect of
directives which states that if the EU parliament has proposed a law and has given a time period to
the domestic parliament to create that law within the given time period, if the domestic parliament
fails to create the proposed law in the given time j period then a right arises for the people through
which they can rely on the law which was proposed by the EU parliament and can sue their own
state in the European Court, the case relevant to this is of Ratti.

Supremacy
EU Law’s supremacy can be explained in this answer. Being one of the four constitutional doctrines
of the EU Law, the European Law supremacy was developed by the European Court of Justice on
account of the concept of “a new legal order”. In the landmark case of Costa ENEL, community law
was given preference over domestic law holding that a regulation would be binding and directly
applicable in all member states as per article 189. If a state could independently nullify the effects of
this provision, it would be considered illogical and would facilitate its way over the community law.

The doctrine of supremacy creates an adversary between the ECJ and the member states. The ECJ
had the view that the EU law should be prioritized over national law, otherwise the doctrine of
uniform market would not be applicable. Whereas on the contrary, some of the member states do
not accept this entirely. The new ;egal order is not given much importance as it given to the national
constitution in these countries. Furthermore, majority of the states do not consider the supremacy
doctrine as decisive. Plus the national courts claim they have the ascendancy to rule on the
competence between EU and national law.

It has been recognized in the case of Handelsgesellschaft case that EU law will have supremacy over
the domestic law. It is irrelevant even of the promulgated laws are against the fundamental
principles or rules of any domestic constitution. Moreover, In another case of Simmenthal in 1978,
the ECJ further declared that national courts should engage community law completely to protect
the rights the latter presents to the individuals. The “retroactivity” aspect of EU laws was also
considered at length in INASTI case in which Court of law crystalized that in case of conflict with the
domestic law, EU law will have primacy over the domestic law. Guidelines include that Courts are
duty bound to follow the EU rules and regulations, and declare the domestic law invalid by issuing
the declaration of Incompatibility alike under section 4 of Human Rights Act 1998 in United Kingdom.
Courts was also inclined that declaration of invalidity does not require further guidelines from any
constitutional court. Nor the nature of laws are relevant neither the declaration that it is not inline
with the fundamental rights that were developed by the constitution. Also the important
characteristics of a national constitutional structure of state.

In INASTI the courts made a development in the EU law and it was held that if the national and EU
law are not on the same page at some point , the court’s preference would be to follow the EU law
and declare the national law as invalid and wait for the ruling of constitutional court.

Under the umbrella of the basic law of “ federal republic of Germany” and as per article 25 the
general rules relating to the public international law are an important part of the federal law. They
are generally prioritized over the statute and it imposes duties on the residents of the federal
territory. Moreover, the concept of the supremacy established by article 25 is does not have a
special effect on the EU law, developed by the European court of justice. In circumstances where the
German constitution and the EU law seem to be similar the courts approach is to rely on the
supremacy of community law. However, in the case of Solange 1 it was held by the German courts
that article 25 is not capable of altering the national constitution if there is no official amendment. In
addition, the supremacy principle was reiterated in the case of Brunnel. In French legal and
constitutional system under the 1958 constitution, supremacy of EU law was at stake.
Constitutionality of domestic laws be determined through the Constitutional council.

In another case of Samoules, Constitutional Court i.e. Court of cessation, did not recognize the
supremacy approach of EU law. Moreover, authority to question the French domestic law does not
lie with EU Jurisdiction. However, Article 55 of the French affirms the supremacy of the EU law as
endorsed in the case of Vabre and Weigel. Costa endorses the same.
After the constitution of 1958 the constitutional council of France was the sole body which was able
to identify the constitutionality of legislation which creates hurdles for the EU law. Hence, taking the
above arguments in consideration, it is certified to label Direct Effect and Supremacy of EU Law are
the core principles of EU Law.

INDIRECT EFFECT As per the indirect effect of directive is concerned, it is an accrued right for the
citizens by taking favour from which they can implement their rights. A citizen of member state can
take use of indirect effect of directive in situations where the EU parliaments has already proposed a
law and has given a time period to the domestic parliament to create that law but in that given time
period if an individual wants to rely on the proposed law he can by fulfilling one condition which is
the most important one. The condition states that in order for an individual to take use of the
proposed law with in the time period he must has to show that their is a domestic law similar to it
present, if this condition is fulfilled then the indirect effect of directive will apply and the individual
can rely on the proposed law and can implement his rights.