Article 10 TEC

1
Article 10 TEC

• Member States shall take all appropriate
  measures, whether general or particular, to
  ensure fulfillment of the obligations arising out
  of this Treaty or resulting from action taken by
  the institutions of the Community. They shall
  facilitate the achievement of the Communitys
  tasks.
• They shall abstain from any measure which could
  jeopardize the attainment of the objectives of
  this Treaty.

Nick Gaede
2
Article 249 TEC, 3rd  

• 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.

3
Vertical Direct Effect Van Duyn v. Home Office,
p. 253 (also p. 246)

• Facts UK denies Van Duyn admission he is
  member of Scientology Church UK citizens can
  practice Scientology UK cannot reference to
  Court of Justice
• Jurisdiction Court Article 234
• Issue
• Is Article 39 TEC directly effective?
• Does Directive 64/24 confer individual rights?
  Pertinent to issue, Directive sought to direct
  how MSs were to define grounds of public policy
  or public security

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Article 39 TEC

• Freedom of movement for workers shall be secured
  within the Community.
• 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.
• It shall entail the right, subject to limitations
  justified on grounds of public policy, public
  security or public health

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Van Duyn case (contd)

• Decision on 1st Issue Van Duyn has individual
  right under Article 39 which the MS court is to
  enforce.
• Decision on 2nd Issue Examine Directive (and
  other Community acts) to determine whether the
  nature, general scheme and wording . . . are
  capable of having direct effect on relations
  between MS and individuals. This Directive
  creates individual right which can be enforced in
  MS courts.

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Van Duyn case (contd)

• Rationale
• Language of Article 249 does not prevent a
  Directive from having direct effect Directive
  is to be binding and it would be incompatible
  with binding effect on MS to exclude
  possibility that the obligation imposed can be
  invoked by concerned individuals.
• Useful effect of Directive weakened if
  individuals cannot rely on in MS courts.
• To not allow individual to rely on would weaken
  Article 234 (reference procedure) which implies
  acts of community can be relied upon in MS courts

7
Van Duyn case (contd)

• This Directive lays down an obligation based
  exclusively on personal conduct which is not
  subject to exception or condition
• This Directive derogates (i.e., provides the
  basis for an exception to) one of the fundamental
  principles of the Treaty.

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Discuss Note 1, p. 255 with 14 of the Van Duyn
Discuss Note 4, p. 256 Decisions can have
direct effect
9
Horizontal Direct EffectMarshall v. Health
Authority, p. 260

• Facts Marshallfemaledismissed at age 60, the
  Health Authority retirement age retirement age
  for men was 65 Marshall claims discrimination
  based on Directive which required equal working
  conditions for women and men UK dismissed case
  because (i) Directive not properly implemented
  and (ii) individual could not rely on Directive
  in suit against another individual.

10
Marshall v. Health Authority, p. 260 (contd)

• Jurisdiction of Court Article 234
• The Court of Justice shall have jurisdiction to
  give preliminary rulings concerning
• (a) the validity and interpretation of acts of
  the institutions of the Community and of the ECB
• (b) the validity and interpretation of acts of
  the institutions of the Community and of the ECB
• (c) the interpretation of the statutes of
  bodies established by an act of the Council,
  where those statutes so provide.

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Marshall v. Health Authority, p. 260 (contd)

• 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 of Justice 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
  of Justice.

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Marshall v. Health Authority, p. 260 (contd)

• Issues
• May a Directive be relied upon by an individual
  in a MS court in a claim against another
  individual?
• Did Health Authority act as an individual?
• Decision
• 1st Issue No Article 249 address Directives to
  MS only
• 2nd Issue Yes and does not matter if MS acting
  as an employer or as a public authority

13
Marshall v. Health Authority, p. 260 (contd)

• Directive not implement
• Time to implement had passed
• Individual could not rely horizontal direct
  effect
• Court recasts issue
• Court says MS must interpret law consistent with
  Directive (even though not implemented)

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Supremacy of Community Law

• Article 10 TEC
• Member States shall take all appropriate
  measures, whether general or particular, to
  ensure fulfillment of the obligations arising out
  of this Treaty or resulting from action taken by
  the institutions of the Community. They shall
  facilitate the achievement of the Communitys
  tasks.
• They shall abstain from any measure which could
  jeopardize the attainment of the objectives of
  this Treaty.
• New Legal Order
• Traditional MS rules not followed
• Traditional public international law rules not
  followed

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Supremacy of Community Law (contd.)Costa v.
ENEL, p. 269

• Facts Italy nationalized electric industry
  Costa challenged the act of naturalization as
  violating Italian Constitution and Articles 31,
  88, and 97 TEC Milan Court referred issue to
  Italian constitutional court and to the Court or
  Justice Italian constitutional court ruled TEC
  ranked as a law of Italy because Italy ratified
  TEC by a statute and therefore TEC was
  subordinate to subsequent Italian legislation.
• Jurisdiction of Court Article 234
• Issue Which law controls (i.e., is supreme)?

16
Costa v. ENEL, p. 269 (contd)

• Decision Community law has primary over
  conflicting MS law
• Rationale
• TEC created its own legal system, different
  than ordinary international treaties
• TEC integral part of MS law and MS courts
  bound to apply
• Powers transferred to Community by MSs and MSs
  have limited sovereign rights
• Community law cannot vary from MS to MS, pointing
  to Articles 10 and 12 TEC
• Precedence of Community Law confirmed in Article
  249 TEC

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Environmental Law Development

• Directive 75/442
• Articles 94 and 308
• Disparities may create unequal conditions of
  completion and thus directly offset the
  functioning of the common market
• Approximation of law as provided for in Article
  94 necessary in field of waste disposal
• Aim of Community in the sphere of protection of
  environment and improve quality of life
• Article 308 for powers required that have not
  been provided for by Treaty

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• Directive 75/442 (contd)
• Need effective and consistent regulations on
  waste disposal which neither obstruct intra
  Community trade nor affect conditions of
  competition . . .
• Polluter pays principle
• Article 2 MS may adopt specific rules
• Article 3 MS encouraged to act MS shall inform
  Commission
• Article 4 MS shall take necessary measures to
  ensure that waste is disposed of without
  endangering human health and without harming the
  environment . . .
• Article 11 Polluter pays
• Article 13 MS comply within 24 months

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Environment (cont.)Commission v. Italy , p. 1245

• Facts Italy failed to implement Directive
  regarding sulfur content in fuels Italy says a
  convention and in effect beyond Community powers
• Jurisdiction Article 230
• Issue Does Commission have power to issue the
  Directive?

20
Environment (cont.)Commission v. Italy , p. 1245

• Decision
• Directive is not an international agreement
  instead, a part of Community Law
• Properly based on Action Program and also Article
  94 approximate law of MSs to eliminate
  technical barriers which result from MS law
  disparities
• Without Directive competition may be appreciably
  disturbed

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Environment (contd)

• ADBHU case, p. 1246
• Is system of permits per Directive compatible
  with free movement of goods (free trade)?
• Free trade is not to be viewed in absolute
  terms
• View Directive in perspective of environmental
  protection, which is one of the Communitys
  essential objectives

22
Environment

• Article 2 TEC
• The Community shall have as its task, by
  establishing a common market and an economic and
  monetary union and by implementing common
  policies or activities referred to in Articles 3
  and 4, to promote throughout the Community a
  harmonious, balanced and sustainable development
  of economic activities, a high level of
  employment and of social protection, equality
  between men and women, sustainable and
  non-inflationary growth, a high degree of
  competitiveness and convergence of economic
  performance, a high level of protection and
  improvement of the quality of the environment,
  the raising of the standard of living and quality
  of life, and economic and social cohesion and
  solidarity among Member States.

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Environment (contd)

• Article 3(l) TEC
• For the purposes set out in Article 2, the
  activities of the Community shall include, as
  provided in this Treaty and in accordance with
  the timetable set out therein
• (l) a policy in the sphere of the environment

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Environment (contd)

• Article 174 (1) TEC
• Community policy on the environment shall
  contribute to pursuit of the following
  objectives
• preserving, protecting and improving the quality
  of the environment,
• protecting human health,
• prudent and rational utilization of natural
  resources,
• promoting measures at international level to deal
  with regional or worldwide environmental problems.

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Environment (contd)

• Article 174 (2) TEC
• Community policy on the environment shall aim at
  a high level of protection taking into account
  the diversity of situations in the various
  regions of the Community. It shall be based on
  the precautionary principle and on the principles
  that preventive action should be taken, that
  environmental damage should as a priority be
  rectified at source and that the polluter should
  pay.
• In this context, harmonization measures
  answering environmental protection requirements
  shall include, where appropriate, a safeguard
  clause allowing Member States to take provisional
  measures, for non-economic environmental reasons,
  subject to a Community inspection procedure.

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Environment (contd)

• Article 174 (3) TEC
• In preparing its policy on the environment, the
  Community shall take account of
• available scientific and technical data,
• environmental conditions in the various regions
  of the Community,
• the potential benefits and costs of action or
  lack of action,
• the economic and social development of the
  Community as a whole and the balanced development
  of its regions.

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Environment (contd)

• Article 176 TEC
• The protective measures adopted pursuant to
  Article 175 shall not prevent any Member State
  from maintaining or introducing more stringent
  protective measures. Such measures must be
  compatible with this Treaty. They shall be
  notified to the Commission.