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Introduction

What is now referred to as The European Union (EU) is a multi-national legal entity which owes its existence and its powers and duties to a succession of treaties.  The EU is neither a state nor a federation of states but it acquired legal personality as a result of the Lisbon Treaty (2007). 

Following the Lisbon Treaty of 2007, it is now possible to refer to the “consolidated versions” of the “Treaty on European Union” and the “Treaty on the Functioning of the European Union.”  On this web page, these will be referred to as TEU and TFEU respectively.

During two World Wars (1914-19) and (1939-45) the U.K. had made a massive contribution.  The original vision of those instrumental in the creation of the European Communities was to try to prevent future wars within Europe by controlling raw materials such as coal and the production of steel.

Because of membership of the EU, nationals of member states are now "Citizens of the Union."  They enjoy the rights given to them by the various Treaties (e.g. the free movement of workers).  The EU has improved the rights of Citizens - (e.g. by the equal treatment for men and women provisions) - and they have enjoyed the economic benefits of membership.

It is the largest trading bloc in the world with a population exceeding 490 million.  It is possible that membership will grow in the future but applicant states must have democratic institutions, guarantee the rule of law and protect human rights.

From 1st December 2009, when the Treaty of Lisbon came into force, the European Union (EU) acquired “legal personality” – see TEU Art 47.  As such, the EU may enter into treaties with non-EU member states etc.

Map of the EU

The Europa Website shows the map of the EU and the member states.  There are currently 27 member states. 

History of the EU

The United Kingdom (UK) is linked politically with most of continental Europe through membership of the European Union (EU).  The Treaty of Paris 1951 created the “European Coal and Steel Community” (ECSC) which came into being in July 1952 with a limited lifetime of 50 years, ending  23^rd July 2002.  The Treaties of Rome 1957 created additional “communities” – the “European Economic Community" (later renamed the European Community) and the European Atomic Energy Community “Euratom.” 

U.K. membership of those communities commenced on 1st January 1973.  The European Communities Act 1972 was passed to give legal  force within the U.K. to the Treaties and other community law deriving from the treaties.

Since 1957 there have been numerous structural changes as well as a gradual accretion of power from the Member States to what is, since the Treaty on European Union (Maastricht) 1992, referred to as the “European Union” (EU). 

Membership of the EU

Since 1^st January 2007, membership of the EU stands at 27 member states:-

From 25^th March 1957: Belgium, France, Germany, Italy, Luxembourg, Netherlands.  [These were the original “Six”].

From 1^st January 1973: Denmark, Republic of Ireland, United Kingdom

From 1^st January 1981: Greece

From 1^st January 1986: Portugal, Spain

From 1^st January 1995: Austria, Finland, Sweden

From 1^st May 2004:      Cyprus, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia

From 1^st January 2007: Bulgaria, Romania

[Note: The former Federal Republic of Germany joined in 1973 and the former German Democratic Republic became a member on 3^rd October 1990].

[Note: Greenland joined on 1^st January 1973 but ceased to be a member in 1985].

There is also a European Economic Area (EEA).  This organisation comprises the EU member states plus Iceland, Liechstenstein and Norway.

 The background to the Lisbon Treaty

 An attempt to have a "European Constitution" was put on the political "back-burner" following NO votes in referenda held in France (May 2005) and The Netherlands (June 2005).   For further information about the European Constitution which was proposed see Institutional Reform

In June 2007, a further agreement was reached between EU Heads of Government about a "Reform Treaty" amending some of the existing Treaties which set up and govern the EU.  An Inter-Governmental Conference (IGC) was set up to prepare the amending treaty and the text was agreed at a meeting between Heads of Government held in Lisbon in October 2007. 

On 13^th December 2007 the Treaty of Lisbon was signed.

The Lisbon Treaty is not to be confused with the European Charter of Fundamental Rights.

The Treaty of Lisbon amended existing Treaties such as the Treaty on European Union and the Treaty establishing the European Community.  The Lisbon Treaty had to be ratified by the Member States in accordance with their respective constitutional requirements and it could not come into force until the first day of the month following the deposit of the last instrument of ratification.  The original plan was that it would enter into force on 1 January 2009.  However, that was not achieved, mainly due to a NO vote in the first Irish referendum.  In October 2009, after a second referendum, the Irish Republic acceded to the Treaty.  The final State to ratify the Treaty was the Czech Republic whose President signed it on 3rd November 2009.

Article 6 of the Treaty of Lisbon is important in that it states that the “The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000 (as adapted at Strasbourg on 12 December 2007), which shall have the same legal value as the Treaties.”  In relation to the U.K. and the Charter of Fundamental Rights, a Protocol to the Lisbon Treaty seeks to prevent the European Court of Justice (or any UK court) finding that laws in the UK are inconsistent with the fundamental rights.

Furthermore, the Treaty of Lisbon enables the EU to accede to the European Convention on Human Rights and Fundamental Freedoms.

Britain ratified the Lisbon Treaty on 18th July 2008 and the Treaty has effect in English law by virtue of the European Union (Amendment) Act 2008.

The Institutions of the EU

 By TEU Art 13, the Union's institutions shall be:

the European Parliament,

the European Council,

the Council,

the European Commission (hereinafter referred to as ‘the Commission’),

the Court of Justice of the European Union,

the European Central Bank

the Court of Auditors.

The TEU Art 13 requires each institution to act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions are directed to practice mutual sincere cooperation.

The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

The European Parliament, the Council and the Commission are assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.

The European Parliament

See TEU Art 14

See TFEU Arts 223-234

Under TEU Art 14, the European Parliament exercises, jointly with the Council, legislative and budgetary functions. It must exercise functions of political control and consultation as laid down in the Treaties. The Parliament elects the President of the Commission.

The European Parliament is made up of representatives of the Union's citizens up to a maximum of 750 representatives (plus The President).  Representation of citizens is “degressively proportional” with a minimum threshold of six members per Member State and a maximum of 96.

Members of the European Parliament are elected for a term of five years by direct universal suffrage in a free and secret ballot.

The European Parliament elects its President and its officers from among its members.

 Since 1979, the Parliament has been directly elected.  It exercises democratic supervision over the other EU institutions.

The European Council

See TEU Art 15

See TFEU Arts 235-236

The European Council provides the Union with the necessary impetus for its development and defines the general political directions and priorities thereof. It may not exercise legislative functions.

The European Council consists of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work.

The European Council must meet every 6 months - (meetings are convened by its President).  The TEU provides that other government Ministers may attend to assist a member of the European Council.  A member of the Commission may attend to assist the President of the Council.

Except where the Treaties provide otherwise, decisions of the European Council are taken by consensus.

The European Council elects its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.

A very important post is that of the President of the European Council.  In many media articles the holder of this post has been inaccurately referred to as “The President of Europe.”  Contrary to views expressed in some quarters, the European Union has not become a State in its own right (e.g. like a federation such as the U.S.A.) though it is true to say that, since the Lisbon Treaty, the EU has a legal persona.

The President of the European Council:

(a) shall chair it and drive forward its work;

(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;

(c) shall endeavour to facilitate cohesion and consensus within the European Council;

(d) shall present a report to the European Parliament after each of the meetings of the European Council.

The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.

The President of the European Council may not hold a national office.

The Council

See TEU Art 16

See TFEU Arts 237 - 243

The Council consists of a representative of each member state at ministerial level.  The representative has to be able to commit the government of the member state in question.

The Council acts jointly with the European Parliament to exercise legislative and budgetary functions.  It carries out policy-making and coordinating functions as laid down in the Treaties.

The Council acts by “qualified majority” except where the treaties provide otherwise.  [“For “qualified majority” see TFEU Art 238].  The definition of “qualified majority” will change from 1st November 2014 and meanwhile certain “transitional provisions” apply – see TEU Art 16(4) and 16(5).

The Council meets in different “configurations” – see TFEU Art 236.

There is also a Committee of Permanent Representatives (COREPER) which is responsible for preparing the work of the Council.

The Presidency of Council configurations (other than Foreign Affairs) is held by Member State representatives in the Council on a rotating system set out in TFEU Art 236.

The European Commission

See TEU Arts 17

See TFEU Arts 244 - 250

The Commission is required to promote the general interest of the EU and to take appropriate initiatives to that end.  It is the Commission which is tasked with ensuring the application of the Treaties and of measures adopted pursuant to the Treaties.  Commission also oversees the application of EU law under the control of the Court of Justice of the EU.

Commission also executes the budget and manages programmes.  It exercises coordinating, executive and management functions, as laid down in the Treaties.

With the exception of the common foreign and security policy, and other cases provided for in the Treaties, Commission has to ensure the Union's external representation.

Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.  Other acts are adopted on the basis of a Commission proposal where the Treaties so provide.

The Commission's term of office is 5 years and members are chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.  In carrying out its responsibilities, the Commission must be completely independent.  The members of the Commission must neither seek nor take instructions from any Government or other institution, body, office or entity. They must refrain from any action incompatible with their duties or the performance of their tasks.

Up to 31st October 2014 the Commission consists of one national per member state including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.

From 1st November 2014, the Commission will consist of a number of members including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.  This raises the prospect that countries such as the United Kingdom may not have their own Commissioner other than when a “rotating system” permits.  For further on this see TFEU Article 244.  This will undoubtedly be viewed by British Eurosceptics as a retrograde step bearing in mind that originally the UK was entitled to appoint 2 Commissioners.

The President of the Commission is appointed by the European Parliament though it is the European Council which makes a nomination.

Under TEU Art 16(8) - The Commission, as a body, is responsible to the European Parliament.

In accordance with Article 234 of the TFEU, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission must resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy must resign from the duties that he carries out in the Commission.

The Court of Justice of the European Union

See TEU Arts 19

See TFEU Arts 251 - 281

Also see Protocol 3 (Statute of the Court)

See Court of Justice - Press release

Under TEU Art 19, The Court of Justice of the European Union includes the Court of Justice, the General Court and specialised courts.  The student of EU law should make a detailed study of TEU Art 19 and TFEU Arts 251-281 as well as Protocol 3.  What follows is an outline only.

The Court of Justice

The court of justice shall ensure that in the interpretation and application of the Treaties the law is observed.

Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.

The Court of Justice comprises one Judge per member state and is assisted by 8 Advocates-General.  [There is provision in the TFEU to increase the number of Advocates-General].

The Judges and the Advocates-General of the Court of Justice are chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 253 and 254 of the Treaty on the Functioning of the European Union.

The Court of Justice of the European Union shall, in accordance with the Treaties:

(a) rule on actions brought by a Member State, an institution or a natural or legal person;

(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;

(c) rule in other cases provided for in the Treaties.

The Court of Justice is based in Luxembourg.  It exists to ensure that EU legislation is interpreted and applied in the same way in all EU countries.  It ensures, for example, that national courts do not give different rulings on the same issue.

The Court also makes sure that EU member states and institutions do what the law requires. The Court has the power to settle legal disputes between EU member states, EU institutions, businesses and individuals.

The Court of Justice sits in “Chambers” or in a “Grand Chamber” – (which applies is set out in the “Statute of the Court of Justice of the European Union”).

The Advocates-General - It is the duty of the Advocate-General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his involvement.

The Judges elect the President of the Court of Justice from among their number for a term of three years. He may be re-elected.

The General Court

The General Court shall include at least one judge per Member State.

The TFEU contains provisions relating to the make up of the “General Court.”  These are not covered further here.  The General Court has jurisdiction to hear and determine at first instance certain actions or proceedings referred to in Articles 263, 265, 268, 270 and 272, with the exception of those assigned to a specialised court set up under Article 257 and those reserved in the Statute for the Court of Justice.

The General Court has jurisdiction to hear and determine actions or proceedings brought against decisions of the specialised courts.

The General Court has jurisdiction to hear and determine questions referred for a preliminary ruling under Article 267, in specific areas laid down by the Statute.

Specialised Courts

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish specialised courts attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas.

The European Central Bank

See TFEU Arts 282-284

There is a European System of Central Banks (ESCB) and a European Central Bank (ECB).  A protocol sets out further details of the ESCB and the ECB – see protocol 4.  The ECB is the central bank for Europe's single currency, the euro. The ECB’s main task is to maintain the euro's purchasing power and thus price stability in the eurosystem.  The UK is not part of the “Eurosystem.”

See European Central Bank.  The ECB has its own legal personality and it alone may authorise the issue of the euro.  It is independent in the exercise of its powers and in the management of its finances. Union institutions, bodies, offices and agencies and the governments of the Member States must respect that independence.

Those Member States whose currency is not the euro, and their central banks, retain their powers in monetary matters.

The Court of Auditors

See TFEU Arts 285-287

The Court of Auditors conducts the Union's audit. It consists of one appropriately qualified national per member state.  Members are appointed for 6 years.

Competencies of the EU and Members States

Under the Maastricht Treaty (1992) the European Union was structured into what were referred to as THREE PILLARS.

Pillar I - the Economic Community

Pillar 2 - Common Foreign and Security Policies

Pillar 3 - Police and Judicial Co-operation in Criminal Matters

Under the Treaty of Lisbon - effective from 1st December 2009 - the pillar structure was abandoned since one of the aims of the Lisbon Treaty is to simplify the EU structure and functioning. 

Under Lisbon, the EU acquired its own distinct legal personality (Article 47 of the TEU) – “The Union shall have legal personality”.  However, there is a distribution of competences so that the EU has exclusive competence in some areas of policy.  In other policy areas, competence is either shared between the EU and member states (“shared competence”) or the EU may carry out actions to support, coordinate or supplement the actions of member states (“supporting competence”).

When the EU has an exclusive competence member states are not permitted to make their own laws concerning that area.

If the EU has a shared competence both the EU and the member states may make laws, but EU law has primacy over any adopted national law, and may override the right to make national laws in the area covered by an EU law.

Article 3 TFEU of the Lisbon Treaty defines the following areas as exclusive EU competences: customs union; the competition rules necessary for the functioning of the internal market; the monetary policy for those member states whose currency is the euro;  the conservation of marine biological resources under the common fisheries policy; the common commercial policy and the conclusion of international agreements – re the latter see TFEU Art 3(2).

Article 4 TFEU sets out the principal areas where there is shared competency:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in the TFEU.

Under TEU Art 4, any competence not conferred on the EU remains with the members states.  Under TEU Art 5 the limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

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European Laws etc.

See - TFEU Article 288

To exercise the Union's competences, the institutions adopt regulations, directives, decisions, recommendations and opinions.

A regulation has general application - i.e. it is binding in its entirety and directly applicable in all Member States.  Directly applicable means that the regulation becomes part of the law of each member state without the need for national legislation to implement it.

A directive is binding, as to the result to be achieved, upon each Member State to which it is addressed, but it is left to the national authorities to decide the choice of form and methods.

A decision is binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

Recommendations and opinions have no binding force.

EUR-lex – access to European legislation

Hence, the Treaties are the primary source of EU law.  Secondary sources of EU law are Regulations, Directives, Decisions, Recommendations and Opinions.  The processes within the EU for actually making legislation are complex.  Every piece of EU legislation must have a basis in one of the Treaties.

Regulation

 Directive

Decision

Recommendations and Opinions

Implementing EU Law in the UK

Within the United Kingdom, it is the European Communities Act 1972 which ensures that EU law is effective.  This Act provides that the treaties and regulations have force within the U.K.  The Act also enables subordinate legislation to be made to give effect to EU acts such as directives.

As an example, the recent Employment Equality (Age) Regulations 2006 were passed under section 2(2) of the 1972 Act.  These Regulations implement the European directive relating to age discrimination in employment.  The Directive is the EC Equal Treatment Framework Directive 2000/78 of 27th November 2000

It should be noted that the meaning of the word “Regulations” in national law is very different to the meaning of the same word in the EU treaties.

The Supremacy (or primacy) of European Community Law

The Treaties delimit the powers of the EU.  The treaties are international agreements entered into voluntarily by national governments.  It has long been clear that the aims of the EU would not be successfully achieved without there being a single system of law governing their activities.  The supremacy of European Community law derives from this.  Indeed, EU law has an existential need to be supreme within the various fields of endeavour covered by it.

Interestingly, the fact of supremacy is not spelled out in simple terms in the treaties.  However, the supremacy was recognised by the Court of Justice as long ago as 1962 in Van Gend en Loos (Case 26/62) [1963] ECR 1.  It was further asserted in Costa v E.N.E.L. in 1964 – (Case 6/64) [1964] ECR 585 and in various other cases. 

Perhaps, for the United Kingdom, the most striking assertion of supremacy was in the Factortame litigation in the 1980s and early 1990s.  This litigation, fiercely fought by the British government, resulted in the possibility of the courts being able to grant relief against the application of an Act of Parliament where the Act is considered to be in breach of Community Law.  This important litigation is explained more fully at The Factortame Cases and at EU Law .

The U.K.’s higher judges undoubtedly struggled to come to terms with the clash between the English law notion of the Supremacy of Parliament and the European position.  Hence, the higher English courts tended at first to try to read English legislation in a way which, as far as possible, met the European position.  However, if that was not possible then they would apply the English legislation.  This approach has been referred to as the “constructionist” approach.  It was an approach which was eventually bound to fall foul of the position adopted by the court of justice of the EU.

Whilst the supremacy of European Community law is recognised, it is squared with the Supremacy of Parliament by recognising the fact that Parliament has the right to withdraw the U.K. from the European Communities.  Such a decision would have massive consequences in many areas.

References to the Court of Justice of the EU

Court of Justice – notice regarding Preliminary references under TFEU Art. 267

The TFEU Article 267 – [previously EC Treaty Article 234 and before that Article 177] makes provision for national courts to refer questions of law to the Court of Justice of the EU - (CJEU) for a “preliminary ruling.”  Art. 267 states:-

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning:

a)      the interpretation of the Treaties;

b)      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 or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall

bring the matter before the Court.

If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

The procedure therefore permits any national court or tribunal to make a reference to the CJEU.  Within the U.K. the majority of references have come from the higher courts but there have been some references from Magistrates’ Courts etc. – see for example, Torfaen Borough Council v B & Q plc (Case 145/88) [1989] ECR 3851.  [This case was concerned with restrictions in the Shops Act 1950 on Sunday trading.  Ultimately, English law was amended by the Sunday Trading Act 1994 ].

Where the point of EU law arises before a court from which there is no national judicial redress (e.g. the Supreme Court of the United Kingdom or, previously, the House of Lords) then the reference “shall” be made.  Although Art. 267 uses the word “shall”, the House of Lords is not actually required to refer every point of EU law.  It would only do so if the House of Lords considered the point not to be already clear.  This is referred to as the “acte clair” doctrine.  Although some Judges and academic commentators have heartily endorsed “acte clair” it is controversial.

In Commissioners of Customs and Excise v Samex [1983] 1 All ER 1042, Lord Bingham urged caution and suggested that a reference should be made unless the national court can “with complete confidence” resolve the issue itself.  However, in R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd [1998] 3 WLR 1260, the House of Lords did not make a reference on the interpretation of the EC Treaty.

Where a reference is made, it is the CJEU which interprets EU law and it is for the national court to then apply that interpretation.  The procedure seeks to achieve uniformity in the interpretation of EU law.  Once the CJEU has made a ruling, it would set a precedent for the courts and tribunals of all Member States.  However, the CJEU itself is not bound by its' own previous decisions.

Direct Effect

Direct effect is concerned with the relationship between the citizens of the Member States and the Community.  Direct effect is another element in ensuring that EU law is applied throughout the Member States.  Just as “supremacy” is not explicitly stated in the Treaties, neither is “direct effect” defined by the Treaties.

Direct effect refers to the “enforceability” within national courts of EU law (of whatever type).  To have direct effect, a European measure must create rights or obligations for individuals.  Hence, Treaty articles, Regulations and Directives and even Decisions may have “direct effect.”

Direct effect is another creation of the CJEU.  Thus, in Van Gend en Loos (Case 26/62) [1963] ECR 1 the former European Court of Justice held that what was then Article 12 of the EC Treaty created rights which individuals could enforce in national courts.  [The Judges went against the opinion of the Advocate-General].  Hence, it was not merely States which could enforce such articles in the Treaty.  By giving individuals such a right the court made sure that the treaties were more likely to be enforced.

Since the Van Gend en Loos case, the court has gradually developed the criteria by which a provision might be directly effective.  Basically:-

• The provision must be sufficiently clear and precisely stated
• The provision must be unconditional or “non-dependent” – i.e. neither dependent on the intervention of another body nor requiring further legislative action either by the Community or by member States
• There must be an identifiable right granted by the provision on which the citizen can rely.

Vertical Direct Effect

Suppose that an individual is involved in a legal case where the other party is the State (or an “emanation of the State”).  The citizen is entitled to take advantage of any provision of EU law which has direct effect.  This form of direct effect is known as VERTICAL DIRECT EFFECT. 

Horizontal Direct Effect

May one individual rely on a directly effective provision in an action against another individual?  In Defrenne v SABENA [1976] ECR 455 the court ruled that a Treaty Article requiring equal pay was enforceable by an employee against the employer.  This form of direct effect is referred to as HORIZONTAL DIRECT EFFECT.

Treaty articles may have direct effect provided that the conditions for direct effect exist.  Furthermore, treaty articles can have direct effect both vertically and horizontally.  The court has so ruled in many cases since Van Gend en Loos – e.g. in relation to free movement of workers and of goods, rights of establishment and freedom to provide services, equal pay etc.

Regulations may also have direct effect – both vertical and horizontal.

Directives have proved to be the more difficult area in relation to direct effect. 

Directives bind member States as to the results to be achieved but leave to the State a choice of form and method.  Usually, there is a time period permitted for States to take implementation action.   Thus, directives are not “directly applicable” (since States have to implement them).  Directives cannot automatically create substantive rights which citizens are able to enforce.

However, the court has developed the law so that directives may, subject to certain requirements, have vertical direct effect: Van Duyn v Home Office [1974] ECR 1337; Marshall v Southampton and South West Hampshire Area Health Authority (Case 152/84) [1986] QB 401 etc. 

During the implementation period the rights conferred by a directive are not enforceable by citizens: see Pubblico Ministero v Ratti [1979[ ECR 1629.  After the implementation date, the directive will may have vertical direct effect so that it is enforceable against the State (or “emanations” of the State).

As regards the implementation period, it should be noted that the Member States must not introduce measures which go against the purpose of the directive: see Inter-Environnement Wallonie v. Region Wallonne Case C-129/96 [1997] ECR I-7411.    Once a directive is addressed to the Member States they have legal effects for the States though they do not have direct effect until after the implementation date has passed.

Emanations of the State are bodies which provide a public service and which are under the control of the State and are able to exercise powers not available to a private body – see Foster v British Gas [1990] ECR I-3313; Doughty v Rolls-Royce plc [1992] 1 CMLR 1045 and Griffin v South West Water [1995] IRLR 15.

Other means by which the Court of Justice has developed the law

The court developed an interpretative rule in cases such as Von Colson [1984] ECR 1891 and Marleasing [1990] ECR I-4135.  This rule requires national courts to interpret and apply all national law so far as possible to give full effect to EU law including provisions in directives.  This interpretative rule is sometimes referred to as “Indirect Effect.”

The court also developed State Liability for non-implementation (or faulty implementation) of directives: Francovich v Italy [1991] ECR I-5257: Brasserie du Pecheur (Case C-46/93) and Factortame (Case C-48/93) [1996] ECR I-1029.  The conditions which must apply are:

• The rule of community law infringed must be intended to confer rights on individuals
• The breach must be sufficiently serious to justify imposing State liability
• There must be a direct causal link between the breach of the obligation imposed on the State and the damage actually suffered by the applicant.

Although the principle of State Liability first appeared in relation to directives (see Francovich), the principle is now of wider application and extends to breach by the State of any community obligation.