Direct And Indirect Effect

Front 1

Van Gend en Loos Principle

Back 1

By signing up to treaties, member states effectively limited their sovereign rights

Treates can also be relied upon by individuals in national courts - Direct Effect

Front 2

Costa v ENEL

Back 2

Primacy of EU law - By signing the EEC treaty member states had signed away some of their sovereign rights. Generally laws stemming from the EEC treaty cannot be overridden by national laws.

Clear and precise provisions were stated in the treaty where member states were permitted to act unilaterally.

Front 3

Internationale Handselgesselschaft

Back 3

EU law will take precedent over even national constitutional law including fundamental rights in that constitution

Added to this the courts stated that the protection of fundamental rights was a general principle of EU law

Front 4

Amministrazione delle Finanze dello Stato

Back 4

A national court must not wait for a national measure which conflicted with EU law to be set aside by a national authority before giving effect to and EU law.

Front 5

Define: Direct Applicability of Regulations

Back 5

Regulation does not need to be implemented into the domestic law of member states. Once implemeted by the EU it automatically becomes part of domestic law

Front 6

Cooperativa Agricola Zootecnica

Back 6

Van Gend en Loos Principles Established

For a provision of EU law to have direct effect it must be sufficiently clear and precise as to give rise to an identifiable individual right and must be unconditional.

Front 7

Van Duyn v Home Office

Back 7

Direct Effect will not be precluded by the mere fact that the provision raises questions of intepretation which can be resolved by a court

Front 8

Francovich & Bonifaci v Italian Republic

Back 8

Direct effect will not be precluded just because the member state is able to choose among several different possible means of achieving the result required by the directive

Front 9

Alfons Lutticke GmbH v Hauptzollamt Saarlouis

Back 9

Van Gend en Loos case only considered a treaty which imposed a negative implication on a member state

This case stated that direct effect could affect a positive obligation as long as the implementation date has passed

Front 10

Defrenne v SABENA

Back 10

Treaty articles can have horizontal effect as well as vertical effect

Front 11

Franz Grad v Finanzamt Traunstein

Antonio Munoz y Cia SA v Frumer Ltd

Azienda Agricola Monte Arcosu Srl Case

Back 11

Regulations and decisions can have direct effect virtue of their nature of being directly applicable

They can have both horizontal and vertical direct effect

To do so they must comply with the Van Gend en Loos criteria

Front 12

Direct Effect of Recommendations and Opinions

Back 12

Recommendations and Opinions are not binding forms of EU law and as such cannot have direct effect

Front 13

Direct Effect of Directives

Back 13

Court held in Van Duyn v Home Office that directives can have direct effect as long as they satisfy the Van Gend en Loos criteria.

Front 14

Pubblico Ministerio v Ratti

Verbond van Nederlandse Ondernemingen case

Back 14

A directive can have direct effect only once the implementation date has passed or, if it is silent, within 20 days of publication of the directive in the official journal.

Directives can have direct effect both when they have failed to be implemented and when they have been only partially or incorrectly implemented

Front 15

Marshall v Southampton and South West Area Health Authority

Back 15

A directive can only have vertical direct effect as i is only binding on those who it is addressed to

Front 16

Foster v British Gas pls

Back 16

Emanations of the State

The Bipartite Test: Organisations or bodies which were subject to the authority or contorll of the state or had special powers beyond those which result from the normal rules applicable to relations between individuals

The Tripartite Test: A body which has been made responsible for providing a public service, under the control of the state and has speical powers beyond those that normally apply

Front 17

Limitations of Direct Effect

Back 17

Must satisfy the Van Gend en Loos Criteria

Directives, one of the most important forms of EU law, can only have vertical effect

Front 18

Von Colson & Kamann v Land Nordrhein Westfalen

Back 18

Directives can have indirect effect

Front 19

Define: Indirect Effect (Van Colson Principle)

Back 19

National Courts of member states are required to interpret national law inline with the provisions of EU law

Indirect Effect applies regardless of whether the claim is horizontal or vertical

Front 20

Marleasing SA v La Comercial Internacional

Back 20

Provisions of an unimplemented directive could be used to interpret national law, even in a purely horizontal case

It does not matter if the national law had been made before or after the directive. The directive can still be used to interpret that law.

Front 21

Wagner Miret v Fondo di Garantia Salarial

Back 21

In response to marleasing it was found that national courts should interpret national law in line with EU law as far as possible

Front 22

HMRC v IDT Card Services Ireland

Back 22

There is no need to find language ambiguous before interpreting

The interpretation can change the meaning of legislation

Court must not rewrite legislation in a way that goes beyond intepretation

The interpretation cannot entail maing a decision which involves policy choices

Front 23

Define: State Liability

Francovich & Bonifaci v Italian Republic

Back 23

Allows an individual to recover compensation from a member state where he or she has incurred loss as a result of the failure of that member state to fulfil it's obligations under EU Law

Can provide remedies where direct and indirect effect are not available

Front 24

Three Conditions for State Liability to Apply

Brasserie du Pechuer

Back 24

The rule of law infringed must be intended to confer rights to individuals

The breach must be sufficiently serious

Must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

Front 25

Factors when assessing the sufficiently serious clause of state liability

Back 25

The clarity and precision of the rule breached

The measure of discretion left to the member state by the rule

Whether the breach was intentional

Whether the breach was excusable

The extent to which a position taken by a union institution may have contributed to the breach

The extent to which the member states had adopted or retained national measures contrary to EU Law

Front 26

Summary of Direct and Indirect Effect and State Liability

Back 26

Direct effect may not be available because the conditions are not satisfied

Indirect effect may fail because it is not possible to interpret national law in conformity with the object and purpose of EU Law

State liability only provides compensation and, in any event, will not be established where a breach is not considered sufficiently serious