Van Gend en Loos (deals with direct effect)

• Established the principle of direct effect: Individuals/companies can rely on Community law in front of national courts

• Two types of direct effect:

  • Horizontal direct effect: applicable between individuals (also companies)

  • Vertical direct effect: governs the relationship between EC and national law

• The Van Gend en Loos criteria:

  • Provision has to be:

    • Sufficiently clear and precisely stated

    • Unconditional and non-dependant

    • Confer to a specific right for a citizen to base the claim on

• IMPORTANT:

  • Directives have only vertical direct effect people cannot sue other people on the basis of a directive

  • Art. 249: explains which measures have direct effect

Costa v ENEL (deals with direct effect and supremacy of EC law)

• Treaty provisions need to have direct effect in order to guarantee an individual the reliance on it

• Question of direct effect: In this case, the treaty provision was dealing alone with the member state and not with individuals see Van Gend en Loos criteria, point 3

• However, the court said that if the provision would have had direct effect, it would overrule the national provision Supremacy of EC law

Simmenthal (deals with direct applicability and supremacy law)

• Primary rulings are valid

• Principle of direct applicability: Community law has to be fully and uniformly applied in all member states; direct source of rights and duties for all those affected thereby (member states and individuals)

• Principle of Supremacy of EC law: national provisions are overruled by EC law; new legislation which conflict with EC law preclude the adoption

• If EC law would have no supremacy, the purpose of the treaty could not be sufficiently reached

• Judges in their national courts have to apply EC law, they even do not have to wait for a change of legislation or the setting aside

Foster (deals with horizontal/vertical effect)

• If a directive is not implemented in time by the member state, the individual can still rely on it, but the directive has to fulfill the requirements of the Van Gend en Loos case

• Problem in this case: the action was directed against a company horizontal effect not possible for the enforcement of a directive

• Solution: the company was so closely linked to the state that the court regarded it as a part of the state this would be vertical effect and therefore a possible action

Francovich (deals with damages for non-implementation of directives)

• Italy did not implement a directive on which individuals should be able to rely on

• The Italian Court did not allow a claim under the directive because it was not implanted

• The ECJ therefore developed certain criteria which have to be fulfilled to allow individuals to claim damages for the not-implementation of directives:

  • The directive was not or wrongly implemented

  • The directive enabled individuals to claim certain rights

  • The “breach” is sufficiently serious

  • The not-implementation has a causal link with the damage

• Result: if the criteria is fulfilled an individual can claim damages from its nation for non-implementation of EC law

Faccini Dori (deals with damages for non-implementation of directives)

• Italian court said: pacta sunt servanda

• Directive says: contracts concluded outside business promises can be cancelled within 7 days

• Directive was not implanted the court held to pacta sunt servanda

• Claim against the company was not possible horizontal direct effect not closely linked to the state as in Foster

• Procedure then was the same as in Francovich Italy got sued for the non-implementation of EC law has to pay damages but consider the amount in dispute!

Dassonville (deals with quantitative restrictions and exclusive dealings)

• Definition: All trading rules by member states which hinder, directly or indirectly, actually or potentially, intra-community trade can be considered as equivalent as quantitative restrictions (art 30)

• Member states may take measures to prevent unfair practices in this connexion, on condition that such measures are reasonable and do not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States the requirement by a Member State of a certificate of authenticity which is less easily obtainable by importers of an authentic product having an effect equivalent to a quantitative restriction as prohibited by the Treaty

• An exclusive dealing agreement falls within the prohibition of Article 85

• Have to be considered in connection with exclusive dealing agreements: rights and obligations flowing from the provisions of the agreement + the legal and economic context in which it is situated + the possible existence of similar agreements concluded between the same producer and concessionaires

Cassis de Dijon (deals with the question what is quantitative restriction)

• Quantitative restriction can also be: the max/min percentage of alcohol in drinks fixed by legislation (art 28)

• Court provided mandatory requirements necessary for free trade:

  • Effectiveness of fiscal supervision

  • The protection of public health

  • Fairness of commercial transactions

  • Defense of the consumer

Keck

• Definition of Dassonville is referred to art 30

• It covers also obstacles to the free movement of goods which, in the absence of harmonization of [national] legislation, can occur

• This is also the case if the rules are also applied to the same products from national producers

• EXCEPTION: public interest overrules the free movement of goods

• However, the prohibition of certain selling agreements by national legislation is not a quantitative restriction, as long as it does affect national producers and sellers in the same way as foreign