Direct Effect - European Union

Tatiana Nikolaid
Flashcards by Tatiana Nikolaid, updated more than 1 year ago
Tatiana Nikolaid
Created by Tatiana Nikolaid over 6 years ago
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LAW Public European Law Flashcards on Direct Effect - European Union, created by Tatiana Nikolaid on 10/08/2014.

Resource summary

Question Answer
Direct Effect EU law capable of confering rights on individuals which the Courts of a Member State shall abide (Van Gend en Loos)
Vertical and Horizontal Direct Effect ''Vertical'' = relation of individual and Member State ''Horizontal'' = relation between individuals.
Emanation of State Foster v. British Gas 'A body whatever its legal form, which has been made responsible, pursuant to a measure adopted by the state, for providing a PUBLIC SERVICE, UNDER the control of the State and has for that purpose SPECIAL POWERS BEYOND that which result from the normal rules applicable in RELATIONS BETWEEN INDIVIDUALS'
Van Gend en Loos Argument 1 Teleological Interpretation 'light, wording and purpose of the provision' Court held: The Community constituted 'a new legal order of international law, for the benefit of which the states have limited their sovereign rights' and whose subjects comprised not only the MSs but also their nationals. Thus, the Community Law not only imposed obligations on MSs but also 'intended to confer upon [individuals] rights which become part of their legal heritage'
Van Gend en Loos Argument 2 Principle of Effectiveness - Is a double check. Not only the Commission can supervise but also nationals of the State
Van Gend en Loos Argument 3 If nationals would not be able to invoke the Treaty then, Art.267 (preliminary rulings) would be meaningless. Nationals ask the EU indirectly through national courts.
Van Gend en Loos Conditions for Direct Effect Privision must be: (a) Clear and Precise (b) Unconditional (c) Confer a specific right upon which a citizen can base a claim
Von Colson 'Unconditional' a) not subject to any condition or exception b) does not require intervention on the part of the Community or MS.
ECHR Horizontal Direct Effect? No. Created by states. Confering obligations only upon them, thus cannot invoke a right against individuals or private entities.
Regulations Direct Effect? Yes. Both Vertical and Horizontal.
Directives Direct Effect? Yes but only Vertical Direct Effect and not Horizontal. Vertical after the expiration of the implementing period and only if the State has failed to implement the Directive correctly or has not implemented it at all.
Decisions Direct Effect? Yes. However, only to the persons addressed.
Indirect Effect When a Member State has either failed to implement the Directive or has not implemented it at all. Can be used in cases where the party against whom the Directive is sought is a Private Entity. Indirect Effect implys that the Member State shall interpret national law in line with an unimplemented or badly implemented Directive.
When do we use State Liability? When there is no domestic law on a matter to which the Directive relates or domestic law is contrary to EU Law.
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