Eu Direct Effect Of Directives

Van Gend en Loos [1963] came up with the doctrine of direct effect in relation to Treaty directives and considered that a Treaty provision could have direct effect provided three conditions are met.  Which three:

• Sufficiently clear and precise

• Conditional

• Unconditional

• Can operate without any further action being taken by Community or national authorities

• Can operate independent of judicial decisions

In Marshall v Southampton and South-West Hampshire Area Health Authority [1986] (Marshall No 1) the court set out the rule against horizontal direct effect of directives.  Finish this sentence from the judgment with a quote from Article 249:the binding nature of a directive... exists only in relation to '........ ................. ........ .. ......... ... ... ............'.  If follows that a directive may not of itself impose obligations on an individual and that aprovision of a directive may not be relied on against such a person.

Foster v British Gas [1990] the Court held that unconditional and sufficiently precise provisions of a directive may be relied on against organisations or bodies which are

• Subject to authority or control of the state

• Subject to authority and control of the state

• Or have special powers beyond those which result from the normal rules applicable in relations between individuals

• And have special powers beyond those which result from the normal rules applicable in relations between individuals.

Pubblico Ministero v Tullio Ratti [1979] concerned a directive on labelling of solvents and varnishes.  Ratti adopted measures to comply with directive.  Italy prosecuted him for not relying on national provisions.  He sought to rely on the directive in his defence.  The court gave three reasons why he could do so.  Although in the end, they held that he could not as the date for implementation of the directive had not passed.  What were the reasons given by the court as to why Ratti should (if the date had passed) be able to rely on directive.

• It would be incompatible with the binding effect of directives to exclude the possibility of them being relied on in national courts

• The effectiveness of the directive would be weakened if people could not rely on it or national courts take it into account

• The duty of consistent interpretation requires courts to consider the directive in claims against citizens

• National court discretion to refer questions under article 234 implies that these acts may be invoked by individuals in national courts.

• The state should not be able to rely on it's own failure to implement a directive in a claim against an individual

In Case 41/74 Van Duyn v Home Office the court held that Van Duyn could rely on a directive that had not been implemented in a claim against the Home Office against their refusal to allow her entry to the UK to commence work with the Church of Scientology.  What were the reasons given by the court for saying that the directive can be directly effective?

• Article 249 expressly says that directives are to have direct effect

• The useful effect of directives would be diminished inf individuals could not rely on them in their national courts

• The state should be prevented from relying on its own failure to implement a directive as a defence against an individual

• It would be incompatible with binding effect of directives if individuals were prevented from relying on it in their national court

• National court discretion to refer questions under article 234 implies that these acts may be invoked by individuals in national courts.

In what case did the court, to much controversy, say that the Community can only impose obligations on individuals by way of regulation?Hint: It concerned a directive on door-stop selling.  Reaffirmed the rule that directives cannot have horizontal direct effect.Hint 2: Not Marshall (No 1)

In Pubblico Ministero v Tullio Ratti [1979] the Court considered that a state cannot have defaulted in its duty to implement a Directive until the date for implementation has passed.  However, another case provides that states have duty from taking any measures in the interim liable seriously to compromise the attainment of the prescribed result.  What case is that?