BPP Study Manual Ch6 - Direct & Indirect Effect and State Liability Flashcards
What EU law allows the Commission to bring a case in the CJ against a MS for not fulfilling their treaty obligations?
Article 258 TFEU
What EU law allows MS to bring cases against other MS for not fulfilling their treaty obligations?
article 259 TFEU
What are the consequences of VGL? What’s the proper name?
- Van Gend en Loos
- CJ recognised that EU law created rights and obligations which had direct effect ie could be claimed by EU citizens in their domestic courts
What case determined the superiority of EU law?
Costa v ENEL
What is direct applicability?
where a regulation is automatically incorporated into MS law without the need for the MS to transpose it
What is direct effect?
Where EU law may give rise to rights for the citizens of a MS without the transposition of the EU law into their domestic system
these rights can be claimed in domestic courts
What is the VGL criteria for direct effect?
- the provision must be sufficiently clear and precise to create an individual right
- provision must be unconditional
What case determined whether treaty articles which contained a positive obligation had direct effect?
Alfons Lutticke v Hauptzollamt Saarlouis
What determined whether VGL applied horizontally as well as vertically for treaty articles?
Defrenne (No 2)
What established whether directives can be directly effective?
Van Duyn
What case established that directives could only be directly effective vertically?
Marshall v Southampton and SWAHA
What conditions need to be satisfied for a directive to have direct effect?
- implementation date needs to have passed
- directive must be clear and precise enough to give rise to an individual right
- directive must be unconditional
What case sets out the tests for an emanation of the state?
Foster v British Gas
What is the bipartite test?
directives can be used against bodies that
- were subject to the authority or control of the state OR
- had special powers beyond those which normally govern relations between individuals
What is the tripartite test?
directives could be relied on against bodies which
- had been made responsible by the state for providing a public service AND
- are under the control of the state AND
- have special powers beyond those which normally govern relations between individuals
What are the limitations of direct effect?
- strict conditional requirements must be met
- directives are only vertically directly effective
What is indirect effect?
where the provisions of an EU directive are used by domestic courts to interpret the meaning and scope of preexisting domestic legislation
What set out indirect effect?
Van Colson
What happened in Van Colson?
- the CJ found the relevant provision wasn not sufficiently clear, precise and unconditional to allow direct effect
- instead found that national courts were required to interpret domestic law to implement directives
- this negated the problem with horizontal claims
In what case did UK courts refuse to apply the Van Colson principle? Why?
- Duke v G.E.C. Reliance
- felt the UK statute could not be interpreted to give indirect effect without distorting the meaning of the Act
What case clarified problems with Van Colson?
Marleasing
What did Marleasing decide in relation to indirect effect?
- that the provisions of an unimplemented directive could be used to interpret national law, even in horizontal cases
- whether a national law predates or is newer than an unimplemented directive is irrelevant
What is the principle of state liability?
where a MS has failed to fulfil its obligations under EU law it is liable to be sued for compensation by individuals if they have incurred loss as a result
What is the leading case on state liability?
Francovich
What are the circumstances of the Francovich case?
- Italy had failed to pass a directive that would have protected Francovich when his employers went bankrupt
- the directive’s provisions did not satisfy the requirements for direct effect
- there was no pre-existing law which could be interpreted through indirect effect.
What three conditions need to be satisfied before state liability can be used? From what case?
- Brasserie du Pecheur
- the rule of law infringed should intend to grant rights to individuals
- the breach must be sufficiently serious
- direct causal link between MS breach of obligation and harm to individual.
What does “sufficiently serious” mean?
issue is whether the MS manifestly and gravely disregarded the limits of its discretion.
Why was the UK excused liability in the British Telecom case?
- the directive was unclear
- the UK acted in good faith
- other MS had made the same mistake
- the UK’s interpretation was not manifestly contrary to the directive
- the UK had no guidance to follow
