Aveneu Park, Starling, Australia

[1] Ministero v. Ratti 1979 ECR 1629

1 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E288

2 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E288

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3 See 1

4 Van Gend and Loos Case 1963 ECR 1 – 1963

5 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT

6 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E288

7 Van Gend and Loos Case 1963 ECR 1 – 1963

8 Costa v. Enel 1964 ECR 585 – 1964

9 https://www.brugesgroup.com/images/papers/eulawsupremeovernationallaw.pdf

10

Direct applicability and direct effect

11 http://www.legislation.gov.uk/uksi/2003/1656/contents/made

12 http://www.europeanlawmonitor.org/what-is-guide-to-key-eu-terms/eu-legislation-what-is-an-eu-directive.html

13 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect

14 Defrenne
v. Sabena
1976 ECR 455 – 1976

15 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A12008E157

16 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/direct-effect

17 Pubblico Ministero v. Ratti 1979 ECR 1629 – 1979

18 https://webstroke.co.uk/law/cases/case-14878-ratti-1979

19 Ibid.

20 Craig and De Burca: 216

21 Unilever
Italia SpA v. Central
Food SpA 2000 ECR I 7535 – 2000

22 https://webstroke.co.uk/law/eu-law/effect-of-european-union-law#incidental-effect

23 Craig, Paul; De Burca, Grainne (2015). EU Law: Text, Cases and
Materials (6th ed.). Oxford: Oxford University Press. pp. 266ff. ISBN 978-0-19-871492-7.

24
https://www.lawteacher.net/free-law-essays/european-law/the-principles-of-supremacy-law-essays.php

25 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61970CJ0011

26 Foster v. British Gas plc (Case C-188/89) 1990 ECR 1, 1991 QB 1 405 – 1990 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61989CJ0188

27 Craig, De Burca, p. 296

28 CIA
Security International SA v. Signalson SA and
Securitel Sprl 1996 ECR I 2201 – 1996

29
https://webstroke.co.uk/law/cases/case-c-19494-cia-security-v-signalson-1996

30 https://www.eurofound.europa.eu/observatories/eurwork/industrial-relations-dictionary/state-liability

31 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61990CJ0006
Francovich v. Italy 1991 ECR I 5357 – 1991

32 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31980L0987:EN:HTML

33 https://antitrustlair.files.wordpress.com/2014/07/the-principles-of-equivalence-and-effectiveness-n-petit-final.pdf

34 Ibid.

35 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E288

            In conclusion, Article 288 TFEU has been developed and
updated from other articles such as Article 249 TFEU35. It is highly likely that
in the coming future, Article 288 TFEU will also become outdated and will
develop into other articles. The regulations and directives of Article 288
TFEU, are both there to serve different purpose and to ensure that EU law runs
smoothly. They cover any empty spaces that might result in conflict or
confusion between EU law and national law, alike. The regulations are relevant
to different audiences and allow the correct procedures to be implemented
immediately to the relevant audiences. The directives are the same, they have
their own audiences and the elasticity of their procedures ensure that there is
a relevant time frame for the new legislation to be implemented to their
audiences in the most efficient and correct ways. The direct effect also allows
for the correct laws to be applicable where necessary. As a combination, the
regulations, the directives, their direct effect, indirect effect, the state
liability and the principle of supremacy all group together to form a solid
foundation for Article 288 TFEU. Together, they build a strong law and are
reliable for any issues or any cases that may surface from an EU member state.
I thin that Article 288 TFEU is a compact and reliable point of reference for
many and anything in referral to the article will get a dependable and
reasonable answer or ruling.

CONCLUSION

            A relevant case for sate liability is the case 6/90 and
9/90 Andrea Francovich and Others v Italian Republic (1991)31 in which workers had
suffered damage when their employer became bankrupt and were entitled to
compensation under EU directive 80/987/EEC32. The directive promised
citizen employment protection in their member state, which is enforced through
national law and national courts. The principle of equivalence33 and the principle of
effectiveness34
must be obeyed in order to ensure that all cases alike receive the same
treatment and to certify that the EU law is respected.

            State liability originates from the idea that EU member
states are responsible for the creation, implementation and enforcement of EU
law30. It allows an individual
to claim compensation from a loss that they may have acquired as a result of
the unfulfillment of member state obligations or their breaches of EU law.

STATE LIABILITY

            Likewise, in the same way that indirect effect allows
directives to be horizontally effective, incidental effect is a concept of EU
law which allows the use of indirect effect of EU directives in private legal
actions27. In case C-194/94 CIA
Security v Signal son (1996)28, Belgium adopted a
national law which was in breach of EU law and the directive 83/189/EC,
ignoring the breach, the alarm systems were being sold internationally in
breach of the EU law but in acceptance with the Belgium national law. The
contracts were not binding as the contracts were not valid under EU law and so
were not enforceable. This narrow concept of direct effectiveness has become
known as incidental effect29.

            Indirect effect allows directives of Article 288 TFEU to
be horizontally effective. If an individual wants to have vertical direct
effect and enforce their rights against the state, then a true definition of
that “the state” is must be found. Foster v British Gas PLC (1996)26 comes to the conclusion
that anybody who provides a public service, which is under the control of the
state and has the authority beyond individuals, can be considered as an
emanation of the state. Leading from this, they will be liable, have equivalent
EU rights and will be subject to the authority of the state. In this context,
British Gas PLC are the emanation of the state.

INDIRECT EFFECT

            For Article 288 TFEU, the principle of supremacy is
important to help keep peace between issues raised that may consider both
national and EU law. Having such superiority over national law, ensures that in
EU member states, cases which may be similar but have different national laws
will come to the same if not a similar conclusion due to the overriding EU law.
The principle is crucial to guarantee that any clashes between national and EU
law are solved quickly and effectively without concerning the courts. It makes
decision making efficient and ensures that laws are applied equally throughout
the EU.

            Judges introduced the Principle of Supremacy as a way of
empowering the doctrine of direct effect so that if ever there was an issue
between national law and EU law, the superiority of the EU law overrules any
national law24.
Demonstrated in Case 11/70 Internationale Handelsgesellschaft (1970)25, the court ruled that the
validity EU law cannot be challenged by national laws as it is so supreme.

            The Principle of Supremacy is a principle of EU law which
states that, wherever there is conflict between European law and the law of the
member states; European law always prevails, due to their superiority over the
member states. Developed by the ECJ (European Court of Justice), the principle
is there as a superiority over any norms of national law23. Most national courts
disagree with such an extreme litigation and can review the European law under
their own national laws.

THE PRINCIPLE OF
SUPREMACY

Unlike
directives, regulations can have horizontal direct effect as well as vertical
direct effect. Directives have to look for shortcuts and must emanate the
definition of the state in order for them to have a relevant horizontal direct
effect.

In
addition to this, directives include a time frame in which the EU member states
must implement them. If the time frame is not met, the European Commission may
initiate legal action against the member state for not meeting requirements.

            Unfortunately, there are more differences than
similarities between the regulations and the directives of Article 288 TFEU.
The first would be that regulations are directly applicable, they don’t need
member states to take any further action as they become law as soon as they are
implemented. Unlike regulations, directives need member states to take further
action to implement and to make these changes to their society before they
become legislation.

DIFFERENCES

Can have horizontal

Another
similarity between the regulations and directives is that they both have
vertical direct effect.

            The main similarity between the regulations and the
directives, in Article 288 TFEU, is that they are both applicable to EU member
states. Although the directives might have to go down a longer path, they are
both binding to those in the EU.

SIMILARITIES

Incidental
horizonal effect is the exception to the assumption that directives can ever
have vertical direct effect. The following case proves that “directives can
have a limited form of horizontal effect20”. In Unilever v Central
Food (2000)21,
an approval had not yet been granted for a labelling law which the Italian
government had earlier asked for. Seeing as the approval had not yet been
granted, the Italian law was invalid, and this led to the directive having a
horizontal effect in a private dispute22

In
principle, directives can only be between private parties and the state, as
they only really have vertical direct effect. However, the limitation that
directives have implemented can be overcome and a shortcut can be applied for
directives to have horizontal direct effect. If you expand the notion of the
state, the courts could potentially be used as an emanation of the state.
“State” has a very wide definition and it is obliged to abide and enforce EU
law as the judgement that hangs down between individuals and essentially creates
a horizontal direct effect between them.

Another
case relevant to this is Case 148/78 Ratti (1979)17. In this particular case,
Italy “failed to implement a directive harmonising the rules on solvent
labelling18”.
In breach of the Italian rules, Ratti respected the rules of the directive.
Ratti appealed and his conviction was overruled, as it was incompatible with EU
law and “the unimplemented directive became vertically directly effective on
Ratti19”. This case is
particularly important to display that directives can only be directly
effective, after the deadline – for their implementation – has been passed.

EU
directives are not directly applicable as once they are passed, they need
legislation to make them into national law10. Directives require
member states to attain a certain requirement or policy within a time frame (usually
around two years), which is often implementing or passing their own new laws on
things such as gender equality, equal pay (Equal Pay Act (1970)11 (amendments))12 or environmental issues.
Thus, they only have vertical direct effect because individuals should only be
able to enforce the obligation on the member state itself. The reason for
ascribing direct effect to directives, was “to secure ‘the useful effect’ of EU
legislation”13
and Article 288 TFEU was developed to encourage the result made by the
directives. Additionally, for the directives themselves to be enforceable by
individuals, they must give rights to those individuals. An example of this can
be seen in the case Defrenne v Sabena (no2) (1979)14, where it is compared to
Article 157 TFEU15
(now Article 288 TFEU) to enforce the principle of men and women receiving
equal pay16.

Refer to art 288 tfeu

DIRECTIVES

The
features of regulations and their characteristics are that they refer to the
principles of supremacy and autonomy of EU law. EU law is an autonomous and
prevails principles. The reasons why regulations have such characteristics is
because of the principles of EU law. The case of Van Gend en Loos (1963)7 and COSTA v ENEL (1964)8 both illustrate the
autonomous legal order of the EU9.

Conditions
of regulations, for an EU norm to produce direct effect, are that they have to
be clear, precise and unconditional – referring to the wording concerned with
the branding of rights. There is not a perfect parallel between regulations and
the parliament in the UK, according to domestic rules, there is a direct
applicability.

Regulations,
in Article 288 TFEU6,
are mentioned as having direct applicability and being directly applicable. As
already stated, regulations are similar to direct effect, they are directly and
generally applicable; they apply to everyone in EU member states, EU citizens
and private parties. Direct applicability of regulations means that member
states do not need to take any further actions for regulations to be applicable.
As soon as a regulation is cast, it becomes part of the EU law – as well as
member state law. Consequentially, the direct applicability of regulations also
has vertical and horizontal direct effect.

REGULATIONS

            An illustration of vertical direct effect can be seen in the
case of Van Gend en Loos (1963)4, in which, upon import
from Germany to the Netherlands, the Dutch authority demanded a custom import
tax to be paid by Van Gen den Loos. However, this was a violation of Article 30
TFEU5, prohibition on custom
duties; which states that member states must refrain from introducing “new
custom duties on imports and exports”. Regarding this, the treaty provisions
must be clear, concise, unconditional and also be non-dependant on member
states implementation. Due to this, Van Gen den Loos could enforce their rights
under EU law and within the Dutch court system and to not have to pay the
custom import tax.

When
it comes to enforcing rights in EU law, there is vertical and horizontal direct
effect. Vertical direct effect is used when a private party – such as the
government, local authorities, local schools etc – wants to exert EU law against
a member state. Horizontal direct effect enforces rights against those on the
same level, under EU law. An example of horizontal direct effect would be if a
company wanted to invoke action onto another company under EU law.

In
Article 288 TFEU3,
direct effect ensures that European law is applied and effective in all EU
countries. It allows individuals to conjure a provision from the EU, before a
court. More specifically, in the primary legislation of direct effect,
conditions are applied which state that obligations must be precise, clear and
unconditional. In secondary legislation, direct effect can be applied in
different ways depending on the act (regulation, directive, decision,
international agreements, opinions and recommendations).

For
some, direct effect and direct applicability are the same. Direct effect does
not make a provision a part of EU law, direct effect means that rights
projected in their requirements can be relied on in UK and EU courts. Direct
applicability relates to an entire legislation e.g. regulations. For direct
applicability, a provision or requirement becomes part of the national law and
member states do not need to take any further action for the regulations to be
applicable as they’re self-executing.    

HORIZONTAL AND VERTICAL
DIRECT EFFECT

            Article 288 TFEU1 is in place to implement
‘regulations’ – which shall be generally and directly applicable to all Member
states, ‘directives’ – which shall be binding to achieve a result and
implemented by the national authorities of each Member State it is addressed
to, in the form they choose, ‘decisions’ – which shall also be biding in their
entirety but only onto whom it is addressed to, ‘recommendations’ and
‘opinions’ – which both have no 

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