EU Law - courses of Action direct/indirect effect

Robin Pearce
Flashcards by Robin Pearce, updated more than 1 year ago
Robin Pearce
Created by Robin Pearce almost 6 years ago
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Direct/indirect effect flashcards

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Question Answer
Where does EU supremacy come from? There is no express treaty reference to supremacy. The CoJ has repeatedly held that supremacy is implied in the treaty.
Example of where supremacy is implied int he treaty? Art 4 TEU Member states must take all measures necessary to ensure fulfilment of treaty obligations and to abstain from measures that could jepordise treaty objectives.
Case which established that EU treaties are directly effective? Van Gend en Loos
Effect of Costa v Enel Member states have accepted a permanent limitation on their sovereign rights creating a body of law binding their nationals and themselves. The integration of EU law into national law makes it impossible for subsequent national law to take precedence over EU law.
Effect of Handelsgesellschaft EU Law takes precedence over all forms of national law and must set aside national provisions that conflict with EU law.
Effect of Factortame II National procedural rules (such as UK courts not being able to suspend an Act of Parliament!!) must not interfere with an EU right even if that right had not yet been established! - Powerful stuff!
Which UK Act incorporates EU law? European communities Act 1972
Section of the european Communities Act which incorporates EU Law? s. 2(4) ECA 1972
Difference between Directly Applicable and Direct Effect? Direct Applicability is about whether the provision is 'self-executing' and has effect on its own right (such as a treaty which is nationally ratified) without the need for implementation. Direct effect means individuals can enforce it in national the court.
Which EU provisions are directly applicable? Regulations and Treaties
Why aren't Directives directly applicable? They require implementation into domestic law
Good definition of 'direct effect'? If a provision has direct Effect, individuals (natural persons and businesses) can enforce it in the national court.
Where did Direct Effect come from? It is not contained in the Treaties but has been developed from case law - van Gend en Loos
What are the Van Gend en Loos requirements for a Treaty Article to have direct effect? 1. Must be sufficiently clear and precise 2. unconditional 3. must leave no room for discretion in implementation by the member state These criteria are applied generously
What is the difference between vertical and horizontal direct effect? Vertical direct effect = Citizen v state Horizontal direct effect = Citizen v citizen
Vertical direct effect was established in which case? Van Gend en Loos This did not establish horizontal direct effect!
Horizontal direct effect was established in which case? Defrenne v Sabena (Air hostess)
Because it is super important lets repeat the two cases where vertical and horizontal direct effect were establish!! Van Gend en Loos - Vertical Defreene v Sabena - horizontal
Van Gend and Defreenes establish vert and horiz direct effect for treaties. What case extended this to Regulations? Leonesio
Which case established the principle that Directives can have Vertical (not horizontal) direct effect? Van Duyn (Scientology case)
Conditions for a directive to have vertical direct effect? Same as Van Gend en Loos 1. clear 2. precise 3. unconditional + a directive cannot be directly effective until its implementation deadline has passed - Publico Ministereo v Ratti
Can directives have horizontal direct effect? No - has to use indirect effect
Case which confirms directives cannot have horizontal direct effect? Marshall v Southampton (Compulsory retirement)
Why might it seem unfair that directives cannot have horizontal direct effect? An employee of the state or a public body can invoke rights under a directive against their employer but those working for a private employer cannot. EU law responds by saying Directives should be implemented to give effect nationally and if not only the member state should be accountable for not having implimented
Case to help establish if the body is a public body/emanation of the state Foster v British Gas
What are the 3 tests for a public body? 1. a body made responsible by the state for providing a public service 2. under state control 3. with special powers for that purpose
Case which confirmed the test in Foster v British Gas was not a conclusive list? NUT v Governing body of St marys School
Good definition of Indirect Effect? 'National Law must be interpreted in accordance with relevant EU Law'
What is the purpose of Indirect Effectiveness? It allows national courts to interpret national legislation so as to give effect to EU Directives. It was developed to provide a HORIZONTAL remedy where Directives were not correctly implemented.
What was the case that established Indirect Effectiveness? Van Colson
Why is indirect effect important? It is vitally important for individuals who cannot rely directly on EU Law because the relevant provision is not sufficiently clear, precise and unconditional or more commonly because their claim is horizontal and concerns rights contained in a directive.
Case which established limits to the courts ability to interpret? Wagner Miret Indirect effect cannot be used where national legislation clearly conflicts.
Case where scope of Indirect effect was widened to include interpreting legislation not intended to give effect to a directive? Marleasing
What is state Liability? Where the state has failed to implement a directive and there are no horizontal rights available to an individual someone may sue the state for its failure.
Which case established the criteria for state liability? Francovich
What are the Francovich Criteria for state liability? 1. There must be a right conferred upon individuals contained within a directive 2. There must be a direct casual link between the failure to implement and the damage 3. The content of the rights must be identifiable from the directive
The forth test of state liability was added by which cases? Factortame III and Brassierie du Pecherie
What was the fourth test of state liability added by Factortame III and Brasserie du Pecherie? The breach must be 'sufficiently serious'
What does 'sufficiently serious' mean in relation to Factortame III and Brasserie du Pecherie? the state has 'manifestly and gravely disregarded the limits on its powers
Which case helps us decide if the state has 'manifestly and gravely disregarded the limits on its powers? British Telecom
What was the guidance from 'British Telecom' to help decide if the state has acted manifestly and gravely? 1. Is the directive Clear of Vague? 2. has the Commission issued guidence? 3. have there been and previous cases on the matter? 4. have other member states made the same mistake?
Which case states that 'non-implimentation' is sufficiently serious in its own right? Dillenkofer
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