User:Kaihsu/EUlawB3

Constitutional and institutional law of the European Union.

Section B: Sources of European Union law.

Chapter 3: Secondary legislation: Regulations, Directives. [Decisions, General Principles of Law]

Notes by Kaihsu Tai, 2010-05-03.

Regulations
A regulation has ‘general application’ and is ‘binding in its entirety’: Article 288 TFEC. As such, it does not require further national enactment, for ‘all methods of implementation are contrary to the Treaty which have the result of creating an obstacle to the direct effect of Community Regulations and of jeopardising their simultaneous and uniform application in the whole of the Community’: Commission v Italy 39/72.

Exceptionally, when Regulation does not specify penalty for an infringement, Member States can penalize ‘under conditions, both procedural and substantive, which are analogous to those applicable to infringement of national law of a similar nature and importance, and ... effective, proportionate, and dissuasive’: Ebony Maritime SA v Prefetto della Provincia di Brindisi C-177/95. Regulations can contain provisions empowering Member States to pass implementing measures: Eridania 230/78. Such may be implicitly permitted: Bussone 31/78; even obligatory: Commission v UK (tachographs) 128/78.

Directives
‘A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods’: Article 288 TFEC. For the sake of legal certainty, member states ought to implement directives so individuals ‘have the benefit of a clear and precise legal situation’: Commission v Greece C-236/95.

Direct effect of directives
Since the developments in the cases Van Duyn v Home Office 41/74 and Pubblico Ministero v Tullio Ratti 148/78, the Court summarizes the law thus: ‘whenever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may be relied upon before the national courts by an individual against the State where that State has failed to implement the directive in national law by the end of the period prescribed or where it has failed to implement the directive correctly’ (estoppel): restated in Kortas C-319/97.

‘Member States to which that directive is addressed to refrain, during the period laid down therein for its implementation, from adopting measures liable seriously to compromise the result prescribed’: Inter-Environnement Wallonie ASBL v Région Wallonne C-129/96.

The state
In (at least) some cases, a directive cannot be relied upon against a private (non-state) entity; but even then, ‘the state’ is defined widely. ‘In either case [whether employer or public authority], it is necessary to prevent the state from taking advantage of its own failure to comply with Community law’: Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) 152/84. ‘The state’ here being ‘a body, whatever its legal form, which has been made responsible, [1] pursuant to a measure adopted by a state, for [2] providing a public service [3] under the control of the state and [4] has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals’: Foster v British Gas C-188/89.

Horizontal effect (if at all) of directives
Cases like Marshall 152/84, Pfeiffer v Deutsches Rotes Kreuz C-397/01, and Mangold C-144/04 did not do enough to clarify whether directives have horizontal direct effect, especially in ‘triangular’ cases where relationship between an individual with the state also affects another individual. There is scope for hedging: Hartley pp 206 to 213. Recent cases such as Carp Snc v Ecorad Srl C-80/06 and Bartsch v Bosch und Siemens Hausgeräte C-427/06 seems to confirm Marshall and Pfeiffer against horizontal effect, and distinguish from Mangold.

Directive 83/189, and Belgium’s failure to comply with it, was relevant to the dispute between three private security companies: CIA Security International SA v Signalson SA and Securitel Sprl C-194/94. The national ‘substantial procedural defect’ was in breach of the directive, rendering the national technical regulation inapplicable, even in ‘horizontal’ cases: Unilever Italia SpA v Central Food SpA C-443/98. (This may be a case where a directive is substantively a regulation in disguise.)

After all, a directive cannot be relied upon to increase the liability in criminal law of accused persons: Kolpinghuis Nijmegen 80/86; Silvio Berlusconi and others C-387/02.

When an unimplemented Directive contains a general principle or reference to EU fundamental rights, these provisions have full direct effect, even in relationships between private parties: Kücükdeveci C-555/07.

Indirect effect or the doctrine of consistent interpretation
Per Article 4(3) TEU (‘The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.’), ‘It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law’: Von Colson and Kamann v Land Nordrhein-Westfalen 14/83. This applies to national law predating the relevant directive in relations between individuals: Marleasing SA v La Comercial Internacional de Alimentación SA C-106/89.

‘Where a directive is transposed belatedly into a Member State’s domestic law and the relevant provisions of the directive do not have direct effect, the national courts are bound to interpret domestic law so far as possible, once the period for transposition has expired, in the light of the wording and the purpose of the directive concerned with a view to achieving the results sought by the directive, favouring the interpretation of the national rules which is the most consistent with that purpose in order thereby to achieve an outcome compatible with the provisions of the directive’: Adeneler v Ellinikos Organismos Galaktos C-212/04.

Comitology and delegated legislation
Three possible kinds of committees exist, namely advisory, management, and regulatory: Council Decision 1999/468 laying down the Procedures for the Exercise of Implementing Powers Conferred on the Commission.

Decisions
Article 288 TFEC: ‘A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.’ Decisions can have direct effect before national courts: Franz Grad v Finanzamt Traunstein 9/70.

Apparently the test for direct effect for decisions would be similar or the same as that for Treaty provisions (namely, clear and unambiguous, unconditional, not dependent on further action: Hurd v Jones 44/84) and directives (that is, ‘unconditional and sufficiently precise ... against the State’: Kortas C-319/97 restating Van Duyn 41/7).

General principles of law
‘It is the responsibility of the national court to guarantee the full effectiveness of the general principle of non-discrimination in respect of age, setting aside any provision of national law which may conflict with Community law, even where the period prescribed for transposition of that directive has not yet expired’: Mangold C-144/04.