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Manuel Gimenez

on 4 March 2015

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Fidelity principle. Art. 4.3 TEU

Supremacy Principle

Direct Effect
Unit 4: EU Legal Order v. MS Legal Order: RELATIONSHIP


Creation of new rights and obligations from EU Treaties
Those can be invoked directly before MS courts
Based on art. 267 TFEU

Alternative: art. 258 TFEU

Direct effect in
is questionable

Direct effect. Self executing

Clear, unconditional and with no further legislative intervention
Only against the State
Only negative actions

Reyners case: No discrimination, even if the MS should have taken actions to dismantle discrimination

Defrenne v. Sabena
Also against corporations
Also positive actions
Avoid MS ignoring the principles

EU Remedies
National, but no less favorable than internal
Sufficient to guarantee EU rights: Unibet Case

Fully applicable to primary norms:
(tax discriminations, free movement of workers, Competition...)

Fully applicable to

Questionable for
(Faccini Dori)
Denying direct effect would be incoherent (hierarchy)
Van Duyn case: when additional actions are needed
Term to transpose the directive
Degree of State control:
Foster test
Is this compatible with Defrenne case?
What happens if a directive includes general principles of EU law?
...and if a Regulation is based on a directive?


Supremacy: No formal basis and non legal instruments:
Avoid excessive formalism (Ordinary legislative procedure)
Include international agreements
Differentiate regular EU v. CFSP

Direct effect requires

Hierarchy of norms
Primary and secondary legislation
Lisbon Treaty: Treaties > General Principles > Legislative acts > delegated acts > implementing acts


Costa V. Enel.

No mention in the Treaties
Lisbon: Declaration 17

Although EU Law prevails over constitutions, but the ECJ avoids conflict
France, Germany deny

Fidelity principle. Art. 4.3 TEU


Costa v. Enel


Because it was an Agreement (contractuarian)
Because otherwise, the Union would not work (funcional)
Because otherwise, the Union would not be effective (analytical)

Application in time

Simmenthal: Irrespective of the date of the domestic law (para. 21)
Winner Wetten (2010): How to adapt to EU Law?

Adjudicatory Body at a domestic level
B & others case (Sep, 2014)
Larsy (2001): also administrative bodies
Power given to the national judge
In the merits (Simmenthal, Cilfit)
Procedurally: interim decision (Factortame)
Res judicata (Luccini, 2007)


Principle of Conferral
Mandate: MS shall avoid actions that are not compatible with the treaties
MS Powers: Shall abide to comply with EU Law (Opinion 1/91)

Refusal to apply (Simmenthal) does not mean declaring the norm null
Supremacy covers all EU norms, either
Supremacy reaches to
all MS norms
(at any hierarchical level)

Proceedings before the ECJ (Art. 258 to 260 TFEU)
Institutional Dialogue (Spanish Constitutional Court Decision 1/1994)


Kompetenz - Kompetenz

Article 19 TEU

Article 5.2 Conferral

Supremacy and EU Countries


Semoules (Conseil d'Etat) vs. Café JAcques Vabres (Cour de Cassation).
Followed by acceptance: Nicolo
Based on the French Constitution and not in Costa v. Enel: It denies supremacy over the constitution itself


"Identity lock"
23.1 German Constitution
Limitations: Fundamental Rights, competence, constitutional identity
Solange cases: "I would not exercise jurisdiction as long as the EU gives sufficient guarantees"

Article 4.2 TEU: Protection of democratic authority
"respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.
Respect their essential State functions

Indirect Effect

Interpretation in light of the outcome of the norm

Von Colson: Fidelity Principle 4(3) TFEU

: interpreting the Spanish Civil Code in light of EU norms, whenever possible.

Kükücdevecy: Fundamental rights in the directive whose direct effect is invoked

Incidental Horizontal Effect
Exclusion effect vs. substitution effect

State liability

Francovich: Italy failed to transpose a Directive that favored employees in Insolvency proceedings
National systems failed to provide remedies against EU Law violations
Again, art 4(3) TFEU founded this decision

Factortame III, Brasserie du Pêcheur:
1. Infringed Law shall confer rights to individuals
Identifiable, precise, unconditional
2. Substantial violation
3. Casual link with the damage
ex. re ipsa damages require no casual link

Liability of judicial institutions : Kobler case
Failure to file a preliminary ruling, failure to interpret domestic law in light of EU Law
Only considered in extreme circumstances (intentional)
3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

Institutional Dialogue (Spanish Constitutional Court Decision 1/1994)
Article 267 (ex Article 234 TEC)
The Court of Justice of the European Union 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.
Article 258

(ex Article 226 TEC)

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.




Article 45

(ex Article 39 TEC)

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in regulations to be drawn up by the Commission.

4. The provisions of this Article shall not apply to employment in the public service.

1. Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied.

2. For the purpose of this Article, "pay" means the ordinary basic or minimum wage or salary and any other consideration, whether in cash or in kind, which the worker receives directly or indirectly, in respect of his employment, from his employer.

Equal pay without discrimination based on sex means:

(a) that pay for the same work at piece rates shall be calculated on the basis of the same unit of measurement;

(b) that pay for work at time rates shall be the same for the same job.

3. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, and after consulting the Economic and Social Committee, shall adopt measures to ensure the application of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation, including the principle of equal pay for equal work or work of equal value.

4. With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the underrepresented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.

Article 288

(ex Article 249 TEC)

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

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

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.

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

Recommendations and opinions shall have no binding force.

Incidental Horizontal Effect
Pure horizontal effect:
Marshall case: Dietist dismissed at 62 (unlike men) by British Health authority
Foster case: Employee of British Gas (a nationalized industry)

Incidental effect: shield against attacs

Arcor case: A private individual can sue the MS for a review of their rights. The decision may impose a burden on a Third party

CIA case: CIA was sued (unfair competition) for failing to obtain a mandatory certification. Such certification violated EU Law. CIA prevailed and the claim against it was dismissed

Unilever case: Italian counterpart refused to accept some olive oil because of breaching Italian law on labeling. This Italian law violated EU Law. Unilever could not suffer a prejudice

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