Essay on Court of Justice of the European Union
|📌Published:||26 March 2021|
A “Directive” is a legislative instrument that defines and sets goals for member states of the EU to achieve, Article 288 (3) of the TFEU gives member states of the EU the freedom to choose the method of implementation of Directives for e.g., by administrative action or legislation. Direct Effect allows individuals to invoke principles of EU law against the state although, it is not enshrined in the EU treaties, the CJ has established direct effect as a tool of the enforcement of EU law. The the CJ has expanded the scope of the direct effect of directives by holding that an Individual can claim against the Member State for non-application and incorrect application of a directive.
In the Van Gend case the direct effect of EU treaty provisions was confirmed. An individual could directly invoke a provision of EU law before the court if the provision was precise, clear and unconditional. But the direct effect of directives was still in doubt until the case of Van Dyun ,the CJ held that binding effect given to directives by Art 189 (now Art 288 of the TFEU) would be frustrated if an individual could not rely on it in court and a member state were free to ignore its application.
The CJ held in Becker that an individual can invoke the provisions of a directive “insofar as they define rights which individuals are able to assert against the state”. In Verbond the CJ held that national courts can check whether the state has implemented the directive within the limits of its discretion. Further in Verholen the CJ held that the requires that national legislation should not undermine the right judicial protection of EU community law and the enforcement of rights conferred on the individual. In Risskattervert the CJ held that an individual may rely on a provision of directive which is precise and unconditional, after the State has applied its discretionary element. Further in Francovich and Kuhne the CJ held that national authorities must ensure full application of community law and the rights it confers on an individual. In Marks and Spencer the CJ held that member states are bound to ensure the full application of the directives even after implementing the directive.
The vertical direct effect of a directive against a Member State was firmly established in the CJ’s ruling in Marshall that a directive is addressed to a member state and therefore may not impose an obligation on an individual. Further at para 49 of Marshall the court confirmed an individual can rely on directives against State regardless of its capacity i.e. employer or public authority. In Foster the CJ held that sufficiently precise and unconditional provisions of a directive could be relied on by individuals against bodies under the control of the state or with special powers exceeding the normal rules applicable to relations between individuals.
Further, the CJ held in Kükudeveci and Mangold that if a directive aims to give expression to general principles of EU law then a national court should ensure the effective application of these principles.
In our problem question, the provision of Directive 18/012 is clear, sufficient and precise. Guy satisfies the 4 years work experience criteria. Belgium has exceeded its discretion in applying a 5 year work experience criteria.