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Application of Norms that Grant Rights

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Individual Rights in EU Law

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Abstract

In addition to the well settled law that norms of European Union law are supreme and thus will prevail over conflicting national legislation, sufficiently clear, precise and unconditional provisions of Union law will in general be capable of producing direct effects. That is, they must by virtue of Union law be applied within a national legal order although they are not implemented by a national instance with legislative competence. This goes for a number of Treaty provisions which are not meant to be implemented and also applies to directives that have not been (or are improperly) implemented on expiry of the time limit for implementation. The phenomenon of direct effect also applies to some decisions, but not to regulations, as the latter are directly applicable within national legal orders by virtue of Article 288(2) TFEU (Article 249(2) TEC(A), Article 189(2) TEEC).

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Notes

  1. 1.

    Both the issue of ‘direct applicability’ and that of ‘direct effect’ are clearly of a constitutional nature. However, it follows from the above that the question of ‘direct applicability ’ may be said to be even more constitutional in character in the sense that it was an issue determined once and for all by the Treaty makers. ‘Direct applicability’ does not raise questions, as regulations have always been directly applicable in accordance with Article 288(2) TFEU (Article 249(2) TEC(A), Article 189(2) TEEC) and make up the only directly applicable general legislation. The fact that there are no questions concerning the true ‘direct effect’ of Union law, as regulations require no national implementation measures, must be distinguished from the fact that regulations may of course call for further national, legislative, measures. It does indeed happen that regulations contain provisions which leave certain matters to national choice and discretion (cf., for example, Case C-403/98 Monte Arcosu [2001] ECR I-103). It is thus possible that one may be faced with situations in which questions arise as to the effects of provisions of the regulation which have not been followed up nationally. These are, however, questions concerning the effects of domestic law just as much as Union law, since the non-followed up provisions are per se national law and so they are not questions concerning the ‘direct’ effect of Union law. The particularity in this situation is that the Court of Justice has competence to rule on interpretation, as it has on any regulation.

  2. 2.

    Cf., already, Case 41/74 Van Duyn [1974] ECR 1337.

  3. 3.

    Case 2/74 Reyners [1974] ECR 631.

  4. 4.

    Case 43/75 Defrenne v Sabena [1976] ECR 455.

  5. 5.

    Cf. Case 152/84 Marshall [1986] ECR 723.

  6. 6.

    Case C-80/86 Carp [2007] ECR I-4773, paras 19–22.

  7. 7.

    Cf. Prechal (2005), p. 101.

  8. 8.

    On this ground, one may, it is submitted, question the general validity of the argument that ‘if the conferral of rights were to be a condition of direct effect, a part of Community law would be left unenforceable’, cf. Engstroem (2009), p. 15. While this may be true when faced with European Union law provisions that are not intended to be transposed, when dealing with non- or mal-implemented directives one may just as well consider this to be a case of unfinished legislative procedure, as the Member State has not taken the last, necessary, steps.

  9. 9.

    Cf., e.g., Ruffert (1997), p. 315.

  10. 10.

    Leczykiewicz (2013), p. 208.

  11. 11.

    Joined Cases C-6/60 and C-9/90 Francovich [1991] ECR I-5357.

  12. 12.

    Opinion of Advocate General Tesauro in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029, para 56.

  13. 13.

    Case 13/68 Salgoil v Italy [1968] ECR 453, 460–461.

  14. 14.

    Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur [1996] ECR I-1029, para 23.

  15. 15.

    Proposal for a Directive of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union: COM(2013) 404, SWD(2013) 203–204, 2.

  16. 16.

    Cf., inter alia, Case C-63/99 Gloszczuk and Gloszczuk [2001] ECR I-6369, operative part (‘[t]he direct effect which that provision must therefore be recognised as having means that … have the right to invoke it before the courts of the host Member State’); Case C-257/99 Barkoci and Malik [2001] ECR I-6557; Case C-235/99 Kondova [2001] ECR I-6427; and Case C-268/99 Jany and Others [2001] ECR I-8615.

  17. 17.

    Cf. Sect. 15.5.2.

  18. 18.

    Case 8/81 Becker [1982] ECR 53, para 25.

  19. 19.

    Cf., e.g., Bobek (2014), p. 147.

  20. 20.

    It is submitted that it is therefore incorrect to suggest that ‘[w]hile a norm’s capacity to confer a right on the individual is material for the substitution effect, this is not the case for the exclusion effect’, cf. Engstroem (2009), p. 12. Should a directive merely intend to grant some sort of negative right, i.e. a freedom from something, for instance, the direct effect of this right will not have any practical meaning unless colliding rules or otherwise contradicting measures are found in national law. Where there are no such collisions, there will be no breach of European Union law. ‘Exclusion’ will, on the other hand, take place in any case of conflict and not just where individual rights are at issue, cf., similarly, but using different terminology; Lenaerts and Corthaut (2006), pp. 290–291. If, however, a non- or mal-implemented directive intends to grant an individual a positive right—a claim for something—, the individual can make this claim if the conditions for direct effect are fulfilled. To deprive him of this claim is then necessarily a breach of European Union law, whether this deprivation is due to a lack of national rules or due to contradictory national rules.

  21. 21.

    Joined Cases C-87, C-88 and C-89/90 Verholen [1991] ECR I-3757.

  22. 22.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705.

  23. 23.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705, para 13.

  24. 24.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705, para 14.

  25. 25.

    Compare, e.g., Prechal (1998), pp. 697–698; and Lauwaars (2007), p. 1162.

  26. 26.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705, para 14.

  27. 27.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705, para 22.

  28. 28.

    Cf., e.g., Prechal (1998), pp. 690–693.

  29. 29.

    Case C-312/93 Peterbroeck [1995] ECR I-4599.

  30. 30.

    Case C-312/93 Peterbroeck [1995] ECR I-4599, para 6.

  31. 31.

    de Búrca (1997), p. 40.

  32. 32.

    The judgment in Case C-126/97 Eco Swiss [1999] ECR I-3055 supports this idea. In that ruling, the Court of Justice required that the prohibition on certain anti-competitive practices etc in Article 85 TEEC (Article 81 TEC(A), Article 101 TFEU) should be applied regardless of the parties’ submissions, even in arbitration. To a large extent this case confirmed the character of an ordre public rule which should be applied by the national courts in all situations. Still, there has been some debate as to how to understand the Court’s justification for the ex officio requirement even with respect to this judgment, cf., e.g., Engstroem (2008), pp. 78–81.

  33. 33.

    Joined Cases C-430 and C-431/93 Van Schijndel [1995] ECR I-4705, para 14.

  34. 34.

    Case C-429/05 Max Rampion [2007] ECR I-8017.

  35. 35.

    Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (OJ 1987 L 42, p. 48), as amended by Directive 98/7/EC of the European Parliament and of the Council of 16 February 1998 (OJ 1998 L 101, p. 17). Cf., now, Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ 2008 L 133, p. 66).

  36. 36.

    Case C-429/05 Max Rampion [2007] ECR I-8017, para 64.

  37. 37.

    Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941.

  38. 38.

    Case C-473/00 Cofidis [2002] ECR I-10875.

  39. 39.

    Case C-168/05 Mostaza Claro [2006] ECR I-10421.

  40. 40.

    Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

  41. 41.

    Case C-40/08 Asturcom Telecomunicaciones [2009] ECR I-9579.

  42. 42.

    Case C-618/10 Banco Español de Crédito [2012] (OJ 2012 C 227, p. 5) (EU:C:2012:349).

  43. 43.

    Case C-137/08 VB Pénzügyi Lízing [2010] ECR I-10847, para 56.

  44. 44.

    Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

  45. 45.

    Case C-618/10 Banco Español de Crédito [2012] (OJ 2012 C 227, p. 5) (EU:C:2012:349), para 57.

  46. 46.

    As far as the possible outcomes of the national court’s inquiry into the contract terms is concerned, Banco Español de Crédito is particularly important. The Court of Justice found in this ruling that the national court could not revise an unfair contract term, but could only exclude its application, i.e. set it aside in its entirety, cf. Case C-618/10 Banco Español de Crédito [2012] (OJ 2012 C 227, p. 5) (EU:C:2012:349), para 78. This may in its turn render the whole contract void if it cannot be upheld without the unacceptable clause. The Directive does not require that the finding of one or more unfair terms automatically gives the consumer the power to cancel the whole contract, but it allows full cancellation where this is objectively in the best interests of the consumer, cf. Case C-453/10 Pereničová [2012] (OJ 2012 C 133, p. 7) (EU:C:2012:144), para 36. On the other hand, the consumer may choose to uphold the unfair terms, cf. Case C-243/08 Pannon GSM [2009] ECR I-4713, para 35. An option to merely modify an unfair contract term would not offer sufficiently effective protection for the consumer, as the other contract party would not run risks unless faced with a possible nullification. So, the Court has not only provided that national courts may apply the Directive on unfair terms of their own motion; it has also given the Directive an interpretation which should be expedient in protecting consumers.

  47. 47.

    Cf. Hartkamp (2011), p. 146.

  48. 48.

    Prechal (2001), pp. 52–53.

  49. 49.

    Cf. Leczykiewicz (2012), p. 48 (footnote 1).

  50. 50.

    Case C-497/13 Faber [2015] ECR-nyr (ECJ 4 June 2015) (OJ 2015 C 236, p. 6) (EU:C:2015:357), para 42.

  51. 51.

    Case C-429/05 Max Rampion [2007] ECR I-8017, para 58.

References

  • Bobek M (2014) The effects of EU law in the national legal systems. In: Barnard C, Peers S (eds) European Union law. Oxford University Press, Oxford, pp 140–173

    Google Scholar 

  • de Búrca G (1997) National procedural rules and remedies: the changing approach of the Court of Justice. In: Lonbay J, Biondi A (eds) Remedies for breach of EC law. Wiley, Chichester, pp 37–46

    Google Scholar 

  • Engstroem J (2008) National courts’ obligation to apply Community law ex officio – the court showing new respect for party autonomy and national procedural autonomy? REALaw 1:67–89

    Google Scholar 

  • Engstroem J (2009) The Europeanisation of remedies and procedures through judge-made law: can a Trojan horse achieve effectiveness? Experiences of the Swedish Judiciary. Dissertation, European University Institute, Florence

    Google Scholar 

  • Hartkamp A (2011) The influence of primary European law on private law. In: Hartkamp A et al (eds) Towards a European Civil Code, 4th edn. Kluwer Law International, Alphen aan den Rijn, pp 127–148

    Google Scholar 

  • Lauwaars RH (2007) The application of Community law by national courts ex officio. FILJ 31:1161–1173

    Google Scholar 

  • Leczykiewicz D (2012) ‘Where Angels Fear to Tread’: the EU law of remedies and codification of European Private Law. ERCL 8:47–81

    Article  Google Scholar 

  • Leczykiewicz D (2013) The constitutional dimension of private law liability rules in the EU. In: Leczykiewicz D, Weatherill S (eds) The involvement of EU law in private law relationships. Hart Publishing, Oxford and Portland, Oregon, pp 199–222

    Google Scholar 

  • Lenaerts K, Corthaut T (2006) Of birds and hedges: the role of primacy in invoking norms of EU law. EL Rev 31:287–315

    Google Scholar 

  • Prechal S (1998) Community law in national courts: the lessons from Van Schijndel. CML Rev 35:681–706

    Google Scholar 

  • Prechal S (2001) Judge-made harmonisation of national procedural rule: a bridging perspective. In: Wouters J, Stuyck J (eds) Principles of proper conduct for supranational, state and private actors in the EU: towards a Ius Commune. Intersentia, pp 39–58

    Google Scholar 

  • Prechal S (2005) Directives in EC law. Oxford University Press, Oxford

    Google Scholar 

  • Ruffert M (1997) Rights and remedies in European Community law: a comparative view. CML Rev 34:307–336

    Google Scholar 

Download references

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  1. Department of Private Law, University of Oslo, Oslo, Norway

    Bjarte Thorson

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Thorson, B. (2016). Application of Norms that Grant Rights. In: Individual Rights in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-32771-6_8

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