Direct and Indirect Effect

Terataki
Mind Map by Terataki, updated more than 1 year ago
Terataki
Created by Terataki almost 6 years ago
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Mind Map on Direct and Indirect Effect, created by Terataki on 04/19/2014.
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Direct and Indirect Effect
1 Direct Effect
1.1 Principle established in Van Gend en Loos
1.2 Defrenne v Sabena: Treaty provisions are capable of creating dir­ect effects both vertically between the state and individuals and horizontally between individuals.
1.3 DIRECTIVES
1.3.1 Vertical effect only Van Duyn
1.3.1.1 Marshall v S.W Area Health authority - enforced v public bodies
1.3.1.1.1 Foster v British Gas- public service- under state control- special powers
1.3.1.1.2 Rolls Royce plc. v Doughty- qualifications: broad interpretation
1.3.1.1.2.1 cf N. T. U. v Governing body of St Mary's Church of England
1.3.1.2 Faccini v Recreb- Limitations of D.E
1.3.2 Directive:To be capable of Direct effect: Conditions: Van Duyn : sufficiently clear and precise; unconditional Ratti: Time limit (D.E from the date of the deadline)
1.3.2.1
1.4 **To be capable of direct effect, Treaty articles must:** • Be sufficiently clear and precise • unconditional• Leave no room for the exercise of discretion in implementation by Member States or the EU institutions. if one is not satisfied- the article cannot have direct effect- the person cannot rely on the article
1.4.1 Where not sufficient (direct effect does not apply) : indirect effect applies:
1.4.1.1 Indirect effect provide means to enforce EU rights- IMPOSES A DUTY OF consistent interpretation of national Courts
1.4.1.1.1 principle established in Von Colson and Kamann v Land Nordhein-Westfalen
1.4.1.1.2 Vertical and Horizontal indirect effect
1.4.1.1.2.1 Court imposes this obligation to national law adopted with a duty to implement the directive - all domestic law needs to be interpreted according to the directive - at the begining was specific but the broaden in Marleasing
1.4.1.2 Indirect effect is capable of vertical and horizontal direct effect in respect of Directives.
1.4.1.2.1 Kolpinguis: CJ : the duty of consistent interpretation existed from the time the directive was adopted (but not yet implemented)
1.4.1.2.1.1 The Q was subsequently put to the CJ in Adeneler : held: national Courts: positive and negative duty
1.4.1.3 Limitations
1.4.1.3.1 Wagner Miret v Fondo de Garantira Salaria
1.4.1.3.2 Acaro
1.5 Regulations are stated in Art.189 to be “of general application”. If they are also clear and unconditional, they may be directly effective: Leonesio v Italian Ministry of Agriculture.
1.5.1
1.6 Grad v Finanzamt Traustein: The wording of Art.249 (ex 189) does not prevent individuals from relying in the national courts on decisions addressed to Member States. (2) The decision was directly effective; the directive merely fixed the date on which the VAT regime in the decision took effect.
1.6.1
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