1. Direct Effect, Indirect Effect, State Liability Flashcards
Costa v ENEL
Supremacy of EU law over national
Van Gend en Loos
Direct effect of treaty articles
Negative obligation
Sufficiently clear and precise to confer right on individual
Unconditional
Not subject to further implementation by MS
Alfons Lütticke v Hauptzollamt Saarlouis
Positive obligation
Defrenne v sabena
Treaty articles have horizontal direct effect
Franz Grad v Finanzamt Traustein
Regulations and decisions have direct effect
Antonio Munoz v Frumer
Regulations have horizontal direct effect
Azienda Agricola Monte
Regulations must comply with vanGend en Loos criteria
Van Duyn v Home Office
Directives capable of direct effect
Pubblico Ministero v Ratti
Directives can only have direct effect once deadline has passed
Estoppel theory
Marshall I
No horizontal direct effect of directives
Faccini Dori
Confirms no horizontal direct effect of directives
Bipartite test for emanation of state (Foster v British Gas)
- Bodies subject to authority/control of state, or
2. Bodies which have special powers
Tripartite test for determining emanation of state (Foster v British Gas)
- Bodies responsible for providing service
- Under control of state, and
- Have special powers
Von Colson
Indirect effect
Draws on Art 4(3) TEU
National courts required to interpret domestic laws implementing directive in conformity with wording and purpose of directive
Marleasing
Indirect effect can apply to non-implementing laws, and irrespective of whether national law made before or after directive
Wagner miret
Indirect effect not possible where national law expressly contradicts directive
Adeneler v Ellinikos Organismos Galaktos
Indirect effect applies only once implementation deadline has passed
Kolpinghuis Nijmengen BV
Indirect effect cannot be applied to national law implementing directive that is not yet in force
Francovich & Bonifaci v Italian Republic
State liability
Three conditions
- Directive grants rights to individuals
- Possible to identify content of those rights from directive
- Causal link between state’s failure to implement directive and loss
Brasserie du Pêcheur
State liability
- Law infringed must confer right on individuals
- Breach must be sufficiently serious
- Causal link between state’s breach and loss
Dillenkofer
Failure to take any steps to implement directive is automatically a sufficiently serious breach
Conditions in Frankovich and Brasserie du Pêcheur therefore held to be the same in substance
Köbler
Breach of EU law by national court can give rise to state liability
Simmenthal
Supremacy of EU law confirmed unconditionally
Grimaldi
Recommendations and opinions are not binding forms of EU law - no direct effect
Pupino
National courts are not required to apply indirect effect against the principles of their own law
Cooperativa Agricola Zoologica S. Antonio v Amministrazione delle finanze dello Stato
- Sufficiently clear and precise
2. Unconditional
Verbond van Nederlandse Ondernemingen VNO) v Inspecteur der Invoerrechten en Accijnzen
Where MS has only partially or incorrectly implemented directive, direct effect applies
Marks & Spencer v Commission of Customs and Excise
Even where directive completely and correctly implemented, individual may continue to rely upon clear, precise and unconditional directive in national court
Becker
Tax authorities are emanation of state
Fratelli Costanzo
Local or regional authorities are emanation of state
Johnston v CConst. of RUC
Constitutionally independent police force is emanation of state
Doughty v Rolls Royce
Nationalised company run at arm’s length from government is not emanation of state
Harz v Deutsch Tradaz
Indirect effect applies to horizontal cases
Customs v IDT Card Services Ireland
Indirect effect
Substantial departure from language of legislation permissible, but court must not go beyond interpretation and rewrite legislation
R v HM Treasury, ex parte British Telecommunications
State liability - UK not liable in spite of failure to implement directive correctly (Brasserie du Pêcheur test applied)
R v Ministry of Agriculture, Fisheries and Food
State liability applies
‘Sufficiently serious’ not confined to situations where MS had wide discretion (as in Braserie)
Factortame
Acts of Parliament capable of breaching EU law
