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Viking and Laval: Issues of Horizontal Direct Effect

Published online by Cambridge University Press:  27 October 2017

Alan Dashwood
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Extract

It is more than 40 years since the Court of Justice first articulated in Van Gend en Loos the principle that has come to be known as the direct effect of Community law, and which means, in broad terms, that rules derived from the EC Treaty, so long as they are capable of being applied using ordinary judicial techniques, form part of the law available to courts and tribunals in the Member States for resolving disputes before them. As the Court famously stated:

… the Community constitutes a new legal order of international law ... the subjects of which comprise not only the Member States but also their nationals ... Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 10 , 2008 , pp. 525 - 540
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2008

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References

1 Case 26/62, Van Gend en Loos v Nederlandse Adninistratie der Belastungen [1963] ECR 1, 12.

2 Ibid.

3 A Dashwood, ‘The Principle of Direct Effect in European Community Law’ (1978) Journal of Common Market Studies 229.

4 Dashwood, A, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?’ 9 (2006–2007) CYELS 81 Google Scholar.

5 Distinguished from ‘vertical direct effect’, which enables a Community rule to be invoked by an individual against the authorities of a Member State, as was the case in Van Gend en Loos.

6 See earlier in this volume, ‘Viking and Laval: An Introduction’ at section III.B, first paragraph.

7 In the article referred to in n 4 above.

8 Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L18/1.

9 Case 36/74, Walrave and Koch [1974] ECR 1405, para 17; Case 13/76, Donà v Mantero [1976] ECR 1333, para 17; Case C-415/93, Bosman [1995] ECR I-4921; Joined Cases C-51/96 & 191/97, Deliège [2000] ECR I-2549, para 47; and Case C-309/99 Wouters [2002] ECR I-1577, para 120.

10 Above n 9: Walrave, para 18; Bosman, para 83; Deliège, para 47; and Wouters, para 120.

11 Above n 9: Walrave, para 19; and Bosman, para 84.

12 Above n 9: Walrave, para 4; Donà, para 12; Bosman, para 73; and Deliège, para 41.

13 As Catherine Barnard has observed, the view that matches between national teams are not commercial is, to say the least, contentious—especially where football is concerned. See Barnard, , The Substantive Law of the EU: The Four Freedoms 2nd edn (Oxford, Oxford University Press, 2007) 267 Google Scholar. The Court’s point is, presumably, that the principle of selection is dictated purely by considerations of national pride in sporting prowess.

14 Deliège, above n 9, para 64.

15 Viz at least three foreign players, and two other foreigners who had been playing in the country concerned for a period of at least five years. See the much fuller account of Bosman and of the other authorities considered here in Barnard, above n 13, ch 11.

16 See also Case C-176/96, Lehtonen and Castors Braine [2000] ECR I-268; and Case C-519/04 P, Meca-Medina and Majcen v Commission [2006] ECR I-6991.

17 Case C-281/98, Roman Angonese v Cassa di Risparmiodi Bolzano SpA [2000] ECR I-4139.

18 Ibid, para 34.

19 Ibid, paras 35 & 36.

20 In para 86 of its Bosman judgment, above n 9, the Court said: ‘There is nothing to preclude individuals from relying on justifications on grounds of public policy, public security or public health. Neither the scope nor the content of those grounds of justification is in any way affected by the public or private nature of the rules in question ’ (emphasis added). It seems clear that, in referring to ‘individuals’, the Court had non-governmental regulatory bodies in mind.

21 Case C-438/05, Viking, judgment of 11 December 2007, para 27.

22 Case C-438/05, Viking, Opinion of 23 May 2007, para 33.

23 Ibid, para 35.

24 Ibid, para 37. See the literature cited in fns 33 and 34 of the Opinion; also Quinn, M and MacGowan, N, ‘Could Article 30 Impose Obligations on Individuals?’ (1987) 12 EL Rev 163 Google Scholar.

25 Ibid, para 38.

26 Case C-265/95, Commission v France [1997] ECR I-6959. Referred to below as ‘Rioting Farmers’.

27 Case C-112/00, Schmidberger [2003] ECR I-5659.

28 See earlier in this volume.

29 Viking Opinion, above n 22, para 38.

30 The elements that distinguish the situation of trade unions are considered below.

31 Viking Opinion, above n 22, para 48.

32 Ibid, paras 49–54.

33 Case C-341/05, Laval, Opinion of 23 May 2007, para 156.

34 Ibid and para 157. See above nn 9 and 10.

35 Walrave, above n 9, para 19.

36 Laval Opinion, above n 33, para 159.

37 Case C-341/05, Laval [2007] ECR I-11767, para 98.

38 International Transport Workers Federation v Viking Line ABP [2005] EWCA Civ 1299, [2006] 1 CMLR 27. The first question asked whether trade union action of the kind in question fell, in principle, outside the scope of Article 43 EC. The second question explicitly raised the horizontal direct effect issue.

39 Viking, above n 21, para 35.

40 Ibid, para 36. See also para 60.

41 Ibid, para 62.

42 Ibid, para 64.

43 See above n 4.

44 Joined Cases C-397–403/01, Pfeiffer v Deutsche Rotes Kreuz [2004] ECR I-8835.

45 Ibid, paras 109–19.

46 The matter is considered in paras 134–43 of the Opinion, above n 33.

47 Laval Opinion, above n 33, para 135.

48 Ibid, para 138.

49 Ibid, para 140.