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direct/indirect effect & state liability

divine_lyadiee Eu law degree Englisch 1.205 Aufrufe

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direct/indirect effect & state liability

  • Direct effect - enables individuals to invoke a provision of Union legislation directly in their national courts ( this ensures effective application of Union law.)
  • Principle of Direct effect created in Van Gend- held that Union law constituted a new legal order. M/s are not only obligated but rights are created for individuals. hence individuals should be able to invoke EU law directly in their national courts. ( Treaty articles capable of having direct effect.
  1. Direct effect

    • enables individual to invoke EU directly in national courts- this ensures effective application of Union law.
    • Principle created in Van Gend - Q whether nationals can enforce a treaty art? Held: the treaty constituted a new legal order where M/S have limited their sovereignty- treaty art must be seen as conferring rights to individuals which the national courts must protect
      • Conditions: clear, unconditional (not positive), no further implementation needed.
        • Regulations- art 288 - binding in their entirety must satisfy conditions in Van Gend
        • Directives - Van Duyn - C wanted to rely on a directive that had not yet been implemented to her advantage, held: it was possible for directives to have direct effect.
          • Conditions - sufficiently clear, precise, unconditional. Ratti- implementation of the deadline must have passed. Dori- directives can only be invoked vertically against the state not individuals.
            • This was criticised because it meant that in employment cases those that worked for private companies cannot invoke rights under a directive. CJEU held that directives are addressed to m/s hence they should not escape their liability by blaming an individual. This was mitigated by introducing a wider interpretation of the state, indirect effect and state liability.
              • Emanation of State - Marshall v Southampton - person may rely on a directive against the state regardless of what capacity there are acting in.
                • Foster V British Gas - a public body is - a body responsible by the State, for providing a service under the control of a state & has special powers beyond those normally applicable between individuals.
      • Defranne V Sabena - private company infringed on D's rights to Art 157- held, horizontal direct effect was possible for treaty art & regulations.
  2. Indirect effect -

    • Principle created in Von Colson - requires relevant national law to be interpreted in accordance with Union law
      • Marleasing - principle applies regardless of when the national law was enacted & national law must be interpreted as far as possible.
        • Arco - there is no duty for the national courts to adopt a contra legem interpretation which will amount to re-writing the law ( giving the law a different meaning which was not intended.
          • This is limited because a national provision has to be in place to interpret, but it can only be given an interpretation which is possible.
  3. State liability

    • derives authority from Art 4
      • provides compensation to a claimant where they have suffered loss due to a m/s having breached a provision of Union law
        • Developed in Francovich- M/s should take appropriate measures to ensure the fulfilment of obligations arising out of a treaty consequently they should make good any loss/damage caused to individuals as a result of a breach to community law.
          • Conditions- result prescribed by the directive must grant rights to individuals, rights must be identifiable, causal link between m/s failure and loss suffered. Applies regardless of which body of state was responsible for the breach.
            • Braisserie du Pecher - where the m/s enjoy a wide discretion 3 conditions must be satisfied, rule of law must confer rights to individuals, breach must be sufficiently serious & a dire casual link
              • Factors taken into account - has the m/s manifestly + gravely disregarded the limits of discretion, clarity + precision of rule breached, discretion left by the community authorities, whether infringement was intentional/ involuntary, error of law is it excusable/inexcusable, whether the position taken by the community institution contributed.
                • e.g. - r v HM treasuryex parte BT - incorrect implementation = defence because of good faith.
                  • Non transportation in time = automatically sufficient serious breach. Kobler - state liability to a decision of a court of last instance must be an erroneous interpretation of community law by a court of last instance.

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degree Eu law Mindmap am direct/indirect effect & state liability, erstellt von divine_lyadiee am 03/05/2013.
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divine_lyadiee
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eu law
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