Fundamental Principles of EU Law - Assignment Example

Q1) The central rationale of the ECJ decision in the Ratti case was the assertion that an individual could only bring a claim in respect of failure to implement a Directive if the time limit for implementation had expired and certain specified conditions had been complied with. The ECJ’s rationale in reaching this conclusion highlighted an assumption that Directives imposed an obligation on national courts to consider them regardless of Member State failure to implement as specifically pointed out in the Summary in paragraph 1 and paragraphs 20-22. Therefore, the best way to describe what the decision in the Ratti case is principally about is option b); namely, that the Ratti decision is concerned with when EC Directives can be enforced in national courts. As highlighted above, the ECJ took it as given that Directives are enforceable in national courts as highlighted by the summary of the preliminary ruling in paragraph 1 where the ECJ asserted that “in cases in which the community authorities have, by means of Directive, placed members states under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration”. However, in the Ratti decision, the ECJ were concerned with when EC directives can be enforced in national courts as the case involved two directives, with the deadline date for one of the directives not having passed for implementation. This case involved prosecution of Mr Ratti by the Italian Authorities for breaches of national law concerning product labelling and whilst Mr Ratti had complied with two Directives, the expiry for implementation of one had not passed and the court asserted he could only rely the Directive for which the implementation time period had expired provided it was unconditional and sufficiently precise, but not for the Directive whose time period hadn’t expired. In highlighting the right to rely on Directives in national courts, the ECJ asserted in the paragraph 1 summary that “consequently, a member state which has not adopted the implementing measures required by the Directive in the prescribed periods may not rely, as against individuals on its own failure to perform the obligations which the Directive entails”. Nevertheless, the ECJ highlight in the summary and in the grounds section (paragraphs 20-24) that to be relied on, the Directive must be sufficiently precise and unconditional. Moreover, the ECJ highlighted that the time limit for implementation must have expired in paragraph 2 as follows: “as long as the period prescribed for ….member states to incorporate…. the Directive …..has not yet expired, the Directive cannot have direct effect”. Q2) The ECJ decision in Van Gend en Loos ([1963] ECR 1) accorded direct effect to the EC Treaty, Regulations and Directives and introduced the criteria for determining direct effect of Community law provisions as follows: 1) The relevant Community provision be sufficiently clear and precise; and 2) Unconditional; and 3) Confer a specific right for the individual relying on the provision. In the Ratti case, one of the Directives being relied on was Directive 73/173/EEC. Paragraph 17 of the Ratti judgment specifically refers to Directive 73/173/EEC and the applicability of the Van Gend En Loos criteria by asserting the relevant test being whether “Council Directive 73/173//EEC of 4 June 1973 in particular constitute directly applicable legislation conferring upon individuals personal rights which the national courts must protect?” Moreover paragraph 24 asserts that if the implementation deadline has passed and the Directive’s obligations are unconditional and sufficiently precise as required by the Van Gend en Loos criteria, the national courts must not apply law that is incompatible with the Directive provisions. Q3) If Ratti had been prosecuted for breach of Italian law in December 1979, the ECJ position would have been the same regarding Directive 73/173 as the date for implementation had passed. However, as regards Directive 77/728, the position would have been different as the deadline for implementing this directive would have expired. The preliminary ruling was delivered in April 1979 and the deadline date for Directive 77/728 was November 1979, which prevented Ratti relying on the 77/728 Directive. Accordingly, if the prosecution had taken place in December 1979, Ratti would also have been able to rely on Directive 77/728. Q4) With regard to Alison’s position under the Ratti reasoning, she would be able to rely on the Directive under option b) if the deadline date for implementation has passed and the right satisfies the direct effects criteria. This is further highlighted by the rationale in the Ratti case, in particular paragraph 23 of the judgment where the ECJ commented that it “follows that a national court requested by a person who has complied with the Directive not to apply a national provisions incompatible with the Directive not incorporated into the internal legal order of a defaulting member state, must uphold that request if the obligation in question is unconditional and sufficiently precise”. Furthermore, paragraph 24 of the judgment provides that once the deadline for implementation has passed, the member state cannot apply national law incompatible with the Directive. Q5) The Ratti ruling refers to the following article numbers of the Treaty of Rome: - Article 189 (paragraph 18); -Article 36 (paragraph 35); - Article 100 (paragraph, 4, 9 and 36); and - Article 177. Under the amending Treaty of Amsterdam (1997), the Article numbers referred to in the Ratti decision have been replaced as follows: 1) Article 189 is now Article 249; 2) Article 36 is now Article 30; 3) Article 100 is now Article 94; and 4) Article 177 is now Article 234. Q6) In the Ratti case, the implementation date for both Directives supports the suggestion that Directives often have an implementation period of approximately 2 years. The 1973 Directive implementation period was 18 months and the 1977 Directive implementation period was two years. Q7) If the Ratti decision had been in front of the ECJ after the Marshall (1986) decision; in the Marshall I case, the ECJ determined that an individual would be able to rely on the rights under the Directive vertically against the state and that Directives were not horizontally directly effective. As such, the Court of Justice asserted that Directives could not give rise to rights against other individuals and therefore there have no horizontal direct effect. Q8) The Ratti decision was a reference from the Pretura di Milano for a preliminary ruling by the ECJ under Article 234 (ex Art.177). The purpose of Article 234 is to bridge the gap between Community and national legal systems and to ensure consistent interpretation of Community law. Moreover, the reference procedure provides national courts with assistance in cases concerning interpretation of Community law. The Article 234 procedure is a judicial device and does not comprise part of the appeal system and is only available to the national court of last resort. Therefore, the national court may under Article 234 request an interpretation of the Treaty or validity of Community acts of the institutions. If the national court is unable to do so and is the court of last resort, it is then required to make a reference under Article 234. Initially the ECJ asserted that national courts should determine if reference necessary. However, in the case of Foglia v Novello ([1980] ECR 745), the ECJ held that there must be a genuine dispute as to the facts and interpretation of or validity of Community law. Additionally, any rulings on validity must also be referred under Article 234 and the 2005 ECJ guidelines have now been changed to simplify the procedure where certain subject Article 234 references can be heard by the Court of First Instance (CFI). However, if the CFI feel that the question raises a point better suited to the ECJ, the case may be referred to the ECJ or ECJ can review a CFI decision. In terms of requirements to refer to the ECJ, the leading case of CILFIT ([1982] ECR 3415) clarified the conditions in which national courts are not obliged to make a reference under Article 234; asserting the acte clair principle thus: “the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied may the national court or tribunal refrain from submitting the question to the Court of Justice”. Q9) The parties to the case were the Italian public prosecutor and Tullio Ratti. Q10) It is possible to distinguish between ECJ and CFI cases from the case number reference. When cases are referred to the ECJ, the case number will have the letter C in front of case number and alternatively, the letter T for CFI cases. Q11) The order was received by the ECJ on 21 June 1978 under Article 177 (now Article 234) and the Judgment was delivered just less than 10 months later, in April 1979. Read More