EU Directives Problem

Hi,
I have been trying to wrap my head around the direct/indirect effect for few days now, however if it comes to problem questions I'm clueless.

Spoiler

As far as I know, according to Art. 288 TFEU, directives must be implemented into national law during specified period of time. I have completely no idea how can I apply either direct/indirect effect or even state liability.

If anyone is able to help me out or tell me where to look for an answer I will be extremely grateful. Thanks in advance.

Reply 1

hotliketea

Original post by awooooo

Hi,
I have been trying to wrap my head around the direct/indirect effect for few days now, however if it comes to problem questions I'm clueless.

Spoiler

Hi honey {: this is an example of a harmonisation procedure , which basically means that the EU is imposing a standard that is either a minimum, hybrid or maximum standard - if it is a maximum standard, the UK cannot derogate (see, for example, Dip Dim; Moormann; Com v Germany on uncastrated male pigs), if it is a minimum standard the UK can impose a higher standard (see, for example, KO v De Agostini) and if it is a hybrid standard, the UK can impose a higher standard on DOMESTIC traders but not on imports (for example, Gallaher)

In this example, Café Nova and Pharmacorp would likely want to challenge the legality of the use of the harmonisation procedure under Article 114. Such use needs to be residuary (Com v Council (VAT)) , for the approximation of national laws (Tobacco Advertising 1 - from hereon called TA1) and needs to either be trying to remove obstacles to trade or distortions in competition (TA1) which are either potential or future obstacles/distortions , but always appreciable/likely (Titanium Dioxide for distortions, TA1 for obstacles).

In this case, it could be argued that the use of Article 114 was not for the approximation of national laws to establish/improve the functioning of the internal market - cycle-only highways seems truly irrelevant to such an objective. You could point to the case of TA1 where the fact that the Directive had a huge overlap with public health was one of the reasons for the entire Directive being struck down (although also keep in mind that, in TA2, the fact that the Directive had a 'decisive impact' on public health did not affect the validity of the Directive).

Additionally, even if it was found to be valid, the UK could try to derogate from the standard imposed under Paragraph 4 of Article 114, arguing that for the protection of the working environment, it is vital that they do not implement the Directive. To prove it would affect the working environment, they should point to how P are threatening to move their offices elsewhere, and the fact that it might be a lot harder to receive deliveries etc.

Hope that helps :smile:

Reply 2

awooooo

Thanks for the reply!

I haven't heard of the harmonisation procedure nor maximum/minimum standard as the exam is on constitutional law not EU law. It's not mentioned in the textbooks nor the slides so I guess that's "too far" :P.

I did some more research though, would it be enough - at this level, to say that both cafe and P have rights under TFEU art. 263 as non-priviledged applicants to seek an annulment of the directive? MS as well as they are a priviledged applicant, however they not to meet the time requirement laid out in art.263(5). Then argue that the use of Article 114 was not for the approximation of national laws to establish/improve the functioning of the internal market and the cycle-only streets seem to be irrelevant, then finish it off with the argument that it will affect the working enviroment with P threatening to move the offices etc.?

I would really appreciate if you could clarify it, thanks again for the reply.

EU Directives Problem

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