Question 1

What is the justification for the inclusion of general principles in the EU legal order?

Answer guidance

When the EC (now EU) was established, the EU legal system was to be found only in the Treaties and the limited secondary legislation that existed at the time. However, because the Treaties are largely framework Treaties, they require substantial supplement. Whilst, much of this is provided by the secondary legislation of the EU, both the secondary legislation and the founding and primary treaties' articles may need to be interpreted. There is then much scope for judicial creativity on the part of the Court of Justice. Furthermore, as with all legal systems, codified or written law cannot possibly cater for all economic and social developments that can take place and the judges must at times either adapt existing rules to fit the situation or introduce new rules to settle the matter judiciously. The Court of Justice has previously determined that the Treaty and secondary legislation must be interpreted and applied according to the scheme of the Treaty as a whole and in the light of the broad principles of the preamble and Articles 2, 3, 10, and 12 of the EC Treaty (now the preamble and Arts 3 and 4 TEU and 18 TFEU) to achieve the result required for the EU.

Question 2

Article 288 TFEU provides that Regulations shall be directly applicable in all Member States. Does this mean they are also necessarily directly effective?

Answer guidance

Clearly, the starting point for the answer to this question lies with Art 288 TFEU and first of all a consideration of the nature of Regulations (see Case 16 and 17/62 Fruit & Vegetable Confederation v Council), then move on to a definition of ‘directly applicable’ and, furthermore, an explanation of the consequences of this concept. Direct applicability refers to a means or mode of incorporation, or the way in which international law finds validity in national legal systems. Once that has been set out you need to define the concept of directly effective which is that: Directly effective is the term given to judicial enforcement of rights arising from provisions of EU law which can be upheld in favour of individuals in the courts of the Member States and then discuss the criteria that need to be satisfied. Then finally decide whether Regulations, by virtue of the fact they are directly applicable, are by necessity directly effective. The conclusions is that whilst generally Regulations are capable of direct effects, it is not necessarily the case that individually they will give rise to direct effects capable of enforcement by an individual; see e.g. Eridania v Ministry of Agriculture and Forestry (230/78).

Question 3

Could the following provisions of a Community law Directive be upheld in favour of the stated individuals before the national courts?

(i)   “Member States shall ensure that Companies which employ more than 50 employees in one Workplace, shall provide a Canteen from which hot meals can be purchased at a subsidized reduction of 25%.“

(ii)   “For those companies employing less than 50 employees, member states shall take whatever measures they consider necessary to ensure that subsidised hot Food is made available or in the alternative meal vouchers are provided by employers to be redeemed for hot meals at outside food outlets and restaurants.”

Bernard who works for “Prime”, a photo development laboratory company.

Humphrey who works for the State Department of Administrative Affairs.

Answer guidance

The first provision is probably directly effective as it satisfies the criteria laid down in Van Gend en Loos, clear and precise etc.

The second provisions is probably not directly effective because it is vague (whatever measures they consider necessary.

Bernhard is in private employment and therefore not subject to horizontal direct effects of directives. Whereas Humphrey is in public employment and therefore will have the Vertical direct effects of directives available.

So Bernard cannot enforce direct effects in either of the situations and must seek to rely o indirect effects or other means. Humphrey on the other hand works for a public employer and can derive direct effects which can be enforced in the nationals courts. It depends then on which of the clauses apply to Humphrey. (i) applies to companies with more than 50 employees – would this apply – most likely that the department of admin affairs has more than 50 employees. So yes, is it then DE? Yes, probably.

(ii) on the other hand, if it applies and the department has less than 50 employees, is probably not directly effective as it is not precise and unconditional. In other words it does not satisfy the criteria of Van Gend.