As indicated in the Agreed Reading List (ARL), this tutorial should be concerned mainly with incidental direct effect. Therefore, if you choose one of the Qs from the ARL (p. 16), do not pick up Q1-Q3! However, we will consider some of the related questions, especially what has the ECJ led to creating such an incoherent body of various answers to one of the most fundamental questions of European constitutional law: how EC/EU law penetrates into the legal orders of the Member States.
In addition to ARL Q4-Q6, you may consider the following Qs:
1. Consider judgments in Cases C-194/94 CIA or C-443/98 Unilever on the hand, and C-201/02 Wells on the other. What are the differences between the two? Which of the situations can be called “triangular”? Which of the two is closer to horizontal direct effect proper?
2. Consider the following quote: “Any theory about invoking EU law which stresses the role of direct effect therefore has the major side-effect of simultaneously limiting the role of third pillar instruments such as framework decisions and decisions in the legal order of the Member States. This is not a neutral choice.” (Corthaut and Lenaerts, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law, (2006) 31 European Law Review 287 at 288.) Explain why “this is not a neutral choice” and illustrate on the development of the ECJ’s case law concerning direct effect of directives that it has never been - even before framework decisions were introduced into EU law.
Additional recommended reading:
Beyond the reading you have in the ARL, I strongly recommend you read Sacha Prechal’s case comment on Pfeiffer (C-397/01 to 403/01), published in (2005) 42 Common Market Law Review 1445 (as note earlier, you have access to CML Rev from within the Oxford University network or via VPN). She explains very clearly all niceties of the ECJ's case law concerning the legal effects of directives in national legal orders. In addition, you may have a look at her “Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union” in Barnard, C. (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate? (OUP, 2007), 35-70, which can also complement your reading of Corthaut and Lenaerts together with Peers, prescribed by the ARL at p. 15.
Last thing: keep in mind that horizontal direct effect remains controversial even in relation to (most) EC Treaty provisions. In that relation you may wish to read Opinion of AG Poiares Maduro in Case C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union, paras. 31 et seq.
General remarks regarding your essays:
1. Please try to keep your essays to maximum 2.000 words.
2. When citing cases, provide also their numbers (you do not have refer to the ECR as well).
3. Provide a biography at the end of the essay. When you quote someone, cite!
UPDATE:
In addition to the reading provided, you may also find useful these two articles (perhaps at the time when you prepare for your exam):
- Lenaerts and Corthaut: "Of birds and hedges: the role of primacy in invoking norms of EU law", (2006) 31 EL Rev 287 and - Dougan: "When worlds collide! Competing visions of the relationship between direct effect and supremacy", (2007) 44 CML Rev 931 I mention both articles in the post devoted to Case Palacios de la Villa (C-411/05). They provide opposing views on the conception of direct effect and supremacy, written by prominent authors in the field.
Common mistakes observed in your essays:
Some of you failed to take into account Lemmens Case (C-226/97) when analyzing the 'incidental direct effect' line of case law. But it is important because it shows possible limits of invoking directive 83/189.
Sometimes you also overlooked the important differences between cases CIA (C-194/94), Unilever (C-443/98) and Lemmens (C-226/97) on the one hand, and Wells (C-201/02) or Medicins Control Agency (C-201/94) on the other (stressed also by my Q1 above).
The reading should have indicated to you that the very notion of direct effect is contested amongst EU lawyers (compare e.g. the two recent articles by Lenaerts + Corthaut and Dougan added to your reading list). Therefore, think twice before you say what exactly the Court excluded in Faccini Dori (C-91/92; and confirmed in Pfeiffer - C-397/01 to C-403/01)!
Finally, when excluding horizontal direct effect, the ECJ gave some reasons for this, later elaborated in subsequent judgments or opinions of AGs. What are they?? Sometimes you simply said "directives cannot impose obligations on individuals". But this is NOT the reason! Go one level of abstraction higher and think, why is this the case??
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In addition to ARL Q4-Q6, you may consider the following Qs:
1. Consider judgments in Cases C-194/94 CIA or C-443/98 Unilever on the hand, and C-201/02 Wells on the other. What are the differences between the two? Which of the situations can be called “triangular”? Which of the two is closer to horizontal direct effect proper?
2. Consider the following quote: “Any theory about invoking EU law which stresses the role of direct effect therefore has the major side-effect of simultaneously limiting the role of third pillar instruments such as framework decisions and decisions in the legal order of the Member States. This is not a neutral choice.” (Corthaut and Lenaerts, “Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law, (2006) 31 European Law Review 287 at 288.) Explain why “this is not a neutral choice” and illustrate on the development of the ECJ’s case law concerning direct effect of directives that it has never been - even before framework decisions were introduced into EU law.
Additional recommended reading:
Beyond the reading you have in the ARL, I strongly recommend you read Sacha Prechal’s case comment on Pfeiffer (C-397/01 to 403/01), published in (2005) 42 Common Market Law Review 1445 (as note earlier, you have access to CML Rev from within the Oxford University network or via VPN). She explains very clearly all niceties of the ECJ's case law concerning the legal effects of directives in national legal orders. In addition, you may have a look at her “Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union” in Barnard, C. (ed), The Fundamentals of EU Law Revisited: Assessing the Impact of the Constitutional Debate? (OUP, 2007), 35-70, which can also complement your reading of Corthaut and Lenaerts together with Peers, prescribed by the ARL at p. 15.
Last thing: keep in mind that horizontal direct effect remains controversial even in relation to (most) EC Treaty provisions. In that relation you may wish to read Opinion of AG Poiares Maduro in Case C-438/05 The International Transport Workers' Federation and The Finnish Seamen's Union, paras. 31 et seq.
General remarks regarding your essays:
1. Please try to keep your essays to maximum 2.000 words.
2. When citing cases, provide also their numbers (you do not have refer to the ECR as well).
3. Provide a biography at the end of the essay. When you quote someone, cite!
UPDATE:
In addition to the reading provided, you may also find useful these two articles (perhaps at the time when you prepare for your exam):
- Lenaerts and Corthaut: "Of birds and hedges: the role of primacy in invoking norms of EU law", (2006) 31 EL Rev 287 and - Dougan: "When worlds collide! Competing visions of the relationship between direct effect and supremacy", (2007) 44 CML Rev 931 I mention both articles in the post devoted to Case Palacios de la Villa (C-411/05). They provide opposing views on the conception of direct effect and supremacy, written by prominent authors in the field.
Common mistakes observed in your essays:
Some of you failed to take into account Lemmens Case (C-226/97) when analyzing the 'incidental direct effect' line of case law. But it is important because it shows possible limits of invoking directive 83/189.
Sometimes you also overlooked the important differences between cases CIA (C-194/94), Unilever (C-443/98) and Lemmens (C-226/97) on the one hand, and Wells (C-201/02) or Medicins Control Agency (C-201/94) on the other (stressed also by my Q1 above).
The reading should have indicated to you that the very notion of direct effect is contested amongst EU lawyers (compare e.g. the two recent articles by Lenaerts + Corthaut and Dougan added to your reading list). Therefore, think twice before you say what exactly the Court excluded in Faccini Dori (C-91/92; and confirmed in Pfeiffer - C-397/01 to C-403/01)!
Finally, when excluding horizontal direct effect, the ECJ gave some reasons for this, later elaborated in subsequent judgments or opinions of AGs. What are they?? Sometimes you simply said "directives cannot impose obligations on individuals". But this is NOT the reason! Go one level of abstraction higher and think, why is this the case??
Back to main page.
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