Eu law Lectures History of the eu

Lecture 2

The direct applicability of a directive should not happen as a state should implement directives first. Certain individuals may rely on the direct applicability of a directive regardless of a state’s failure in implementing the directive.

Exception from direct applicability-

1. 
   Security system case- Criterion 1 is met, criterion 3 was met, criterion 2 was not met. The company wanted to use the triangular relationship with other companies and the state to level their own playing field and wanted to force the state to help them. Narrow in applicability and scope.
   
2. 
   Tax fraud case- the parties were acting in bad faith. In order to stop them, the directive was not implemented, the dutch authorities used the directive directly to refuse tax exemption against the company using non-implemented rules. The state acting in a way in which the benefitted at the exempt of another party. Even if they infringed the directive, they benefitted from applying a non-implemented directive. This was accepted by the court. It had 2 issues. 1. Infringement 2. Tax fraud. What is worse?
   

Decisions

Most complicated of sec EU laws

Decisions- common feature with regulations. They are directly applicable.

Additional distinguishable feature of decision- They are individual in nature. They are directly applicably to the entities to which they are directed/addressed. The applicability of decisions is similar to regulations. They are the most numerous legal acts of the EU.

Scope of applicability-

1. 
   The decision directs and addresses a specific entity/entities. e.g., abusing dominant position, decision against state, decision on a company’s merger etc.
   
2. 
   Create a set of criteria which addresses any person/entity who fulfills these criteria and legally forces them to inherit certain rights or obligations.
   

Decision is issued with criteria, an individual who meets these criteria derives rights/obligations from them. The number of addresses affected is not known as it can be applied to any individual/entity who meets these criteria.

e.g., decision to any company employing (number) of employees etc.

We can argue that the second method of applicability is very close to regulations.

Decisions have been used to circumvent the competence of the commission in issuing regulations.

They are straight forward and generally applicable to the addressees.

Exemption- a way to apply decisions to entities to whom the aforementioned decision has not been addressed. Comes from case law. It is subject to subjective interpretation. The possibility of applying the decision to non-addressed individuals/ entities.

This is a plan B; it should not happen. It is used when some addressee has been omitted and the addressee is outside the decisions scope of application. It is usually used in economic matters/activities. ‘Ploughman’ test, it is inherently arbitrary.

An entity who is not an addressee to the decision can rely on that decision if they are related to the content of the decision, its nature, and addressees. In a situation where a company is not an addressee of a decision, yet is similar to the decision’s scope of application and yet different from other companies which are not in the decisions scope of application.

Each case of such nature is up to debate and can be argued how similar is similar enough.

Such a vague open-ended criteria can be argued to be arbitrary. In practical terms, the way we combat such a situation is arbitrary in nature.