Topic 2 Overview of anti-racism and victim protection related EU treaties, law, rules and soft law (theory and recent jurisprudence)

Overview of anti-racism and victim protection related EU treaties, legislation, rules and soft law (theory and recent jurisprudence)

->Coherence, Unity, Effectiveness of EU Law

  • Guarantees uniformity of application of EU law – role of ECJ
  • Prevents Member States from pursuing self-interest legislation
  • Ensures Treaty rights of, inter alia, free movement available to all EU Citizens

 

-> Transforming the EU from ‘International’ to ‘Constitutional’

  Article 4 (3) TEU

  The Member States shall take any appropriate measure, general or particular, to ensure the fulfillment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

  The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

Treaty of Lisbon Declaration 17 Concerning Primacy

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

  • EU institutions are explicitly granted powers from the EU Treaties à actions to combat discrimination + adopt legislation to ensure a common high level of protection against discrimination in all the Member States

  • All EU legislation and policies adopted must comply with the provisions of the Charter, e.g. the Directives
  • Case C-236/09 Test-Achats and Others: the validity of the provision of the Directive must be assessed in light of the relevant provisions of the Charter, since the Recitals of that Directive expressly referred to the Charter​

 

What happens if the Member States do not implement a Directive? Or if they wrongly implement a Directive in the national legal order?

The principle of Direct Effect as an option for the individual?

  • Ability to give rise to rights for individuals which they may enforce in their domestic courts (Van Gend en Loos)
  • Direct effect for Directives?
    • Van Duyn v Home Office, confirmed that Directives can have direct effect
    • Directly effective Directives must be sufficiently clear, precise, unconditional, and the time limit for implementation must be expired.
    • Directives can only be invoked vertically against the State or a public authority (Marshall v Southampton Area Health Authority)
    • What happens if an individual wants to enforce their rights included in a Directive against a private party, e.g. a private employer?

Case study: Assess whether the following provisions (1) can have direct effect and (2) the addressee of the claim, (3) why would an individual to seek to enforce these provisions using direct effect?

  • Article 6 Council Directive 76/207/EEC

‘Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.’

  • Art 255 EC:

‘every citizen of the Union shall have a right of access … subject to the principles and conditions to be defined’