BPP Study Manual Ch6 - Direct & Indirect Effect and State Liability

Question 1

What EU law allows the Commission to bring a case in the CJ against a MS for not fulfilling their treaty obligations?

Answer 1

Article 258 TFEU

Question 2

What EU law allows MS to bring cases against other MS for not fulfilling their treaty obligations?

Answer 2

article 259 TFEU

Question 3

What are the consequences of VGL? What’s the proper name?

Answer 3

• 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

Question 4

What case determined the superiority of EU law?

Answer 4

Costa v ENEL

Question 5

What is direct applicability?

Answer 5

where a regulation is automatically incorporated into MS law without the need for the MS to transpose it

Question 6

What is direct effect?

Answer 6

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

Question 7

What is the VGL criteria for direct effect?

Answer 7

• the provision must be sufficiently clear and precise to create an individual right
• provision must be unconditional

Question 8

What case determined whether treaty articles which contained a positive obligation had direct effect?

Answer 8

Alfons Lutticke v Hauptzollamt Saarlouis

Question 9

What determined whether VGL applied horizontally as well as vertically for treaty articles?

Answer 9

Defrenne (No 2)

Question 10

What established whether directives can be directly effective?

Answer 10

Van Duyn

Question 11

What case established that directives could only be directly effective vertically?

Answer 11

Marshall v Southampton and SWAHA

Question 12

What conditions need to be satisfied for a directive to have direct effect?

Answer 12

• implementation date needs to have passed
• directive must be clear and precise enough to give rise to an individual right
• directive must be unconditional

Question 13

What case sets out the tests for an emanation of the state?

Answer 13

Foster v British Gas

Question 14

What is the bipartite test?

Answer 14

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

Question 15

What is the tripartite test?

Answer 15

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

Question 16

What are the limitations of direct effect?

Answer 16

• strict conditional requirements must be met

- directives are only vertically directly effective

Question 17

What is indirect effect?

Answer 17

where the provisions of an EU directive are used by domestic courts to interpret the meaning and scope of preexisting domestic legislation

Question 18

What set out indirect effect?

Answer 18

Van Colson

Question 19

What happened in Van Colson?

Answer 19

• 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

Question 20

In what case did UK courts refuse to apply the Van Colson principle? Why?

Answer 20

• 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

Question 21

What case clarified problems with Van Colson?

Answer 21

Marleasing

Question 22

What did Marleasing decide in relation to indirect effect?

Answer 22

• 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

Question 23

What is the principle of state liability?

Answer 23

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

Question 24

What is the leading case on state liability?

Answer 24

Francovich

Question 25

What are the circumstances of the Francovich case?

Answer 25

• 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.

Question 26

What three conditions need to be satisfied before state liability can be used? From what case?

Answer 26

• 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.

Question 27

What does “sufficiently serious” mean?

Answer 27

issue is whether the MS manifestly and gravely disregarded the limits of its discretion.

Question 28

Why was the UK excused liability in the British Telecom case?

Answer 28

• 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