thursday’s class
On Thursday we will begin with the question about how much discretion the Member States had about how to go about implementing the Food Supplements Directive. Do the Member States just have to include the directive’s rules in their own legal systems? Note the ways in which the UK’s implementing regulations diverge from the contents of the directive. Write out a list.
If the UK’s regulations are different from the directive do you think that the difference(s) is/are within the powers of the UK under the directive or not? Which aspects of the directive look as though they reflect the idea of the UK choosing its “form and methods” of implementation under Art 249 (i.e. adjusting implementation to national conditions)?
As a directive, the Food Supplements Directive won’t produce direct effects allowing a purchaser to enforce the directive against a manufacturer/seller of food supplements which don’t conform to the requirements of the directive (because this would be horizontal direct effect which does not exist in relation to directives). However, it would be possible to enforce rights under the directive against a Member State (e.g. if a Member State omitted to ensure that conforming products could be sold in its territory).
Do your conclusions about the Member States’ discretion affect whether you think this is the right answer in this case?
If the EU institutions had acted by regulation would that have made a difference?
Then we will start to look at the litigation over the Directive. I don’t think that Judge Richards’ decision will take very long. Do you agree with his approach to the decision about whether the reference should be made?
Then I think (contrary to what I said in class) that we will have time to look at the Advocate General’s opinion in the case at pp 65-81 (and not the ECJ’s decision). The claimants raised a number of different challenges to the vailidity of the Directive, based on various provisions of the Treaty and on general principles of Community law and fundamental rights. Assess these challenges and the Advocate General’s responses. Do you agree with the opinion in all respects/some/none?
Advocate General Geelhoed’s bio on the Court’s website is as follows:
Leendert A. Geelhoed
Born 1942; Research Assistant, University of Utrecht (1970-71); Legal Secretary at the Court of Justice of the European Communities (1971-74); Senior Adviser, Ministry of Justice (1975-82); Member of the Advisory Council on Government Policy (1983-90); various teaching assignments; Secretary-General, Ministry of Economic Affairs (1990-97); Secretary-General, Ministry of General Affairs (1997-2000); Advocate General at the Court of Justice since 7 October 2000.
In what ways does the Advocate General’s opinion read differently from the ECJ’s decisions we have been studying?
(This posting was amended at 9.40 pm Tuesday)