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

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1
Q

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

A

Article 258 TFEU

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2
Q

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

A

article 259 TFEU

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3
Q

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

A
  • 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
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4
Q

What case determined the superiority of EU law?

A

Costa v ENEL

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5
Q

What is direct applicability?

A

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

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6
Q

What is direct effect?

A

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

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7
Q

What is the VGL criteria for direct effect?

A
  • the provision must be sufficiently clear and precise to create an individual right
  • provision must be unconditional
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8
Q

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

A

Alfons Lutticke v Hauptzollamt Saarlouis

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9
Q

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

A

Defrenne (No 2)

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10
Q

What established whether directives can be directly effective?

A

Van Duyn

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11
Q

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

A

Marshall v Southampton and SWAHA

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12
Q

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

A
  • implementation date needs to have passed
  • directive must be clear and precise enough to give rise to an individual right
  • directive must be unconditional
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13
Q

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

A

Foster v British Gas

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14
Q

What is the bipartite test?

A

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
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15
Q

What is the tripartite test?

A

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
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16
Q

What are the limitations of direct effect?

A
  • strict conditional requirements must be met

- directives are only vertically directly effective

17
Q

What is indirect effect?

A

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

18
Q

What set out indirect effect?

A

Van Colson

19
Q

What happened in Van Colson?

A
  • 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
20
Q

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

A
  • 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

21
Q

What case clarified problems with Van Colson?

A

Marleasing

22
Q

What did Marleasing decide in relation to indirect effect?

A
  • 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
23
Q

What is the principle of state liability?

A

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

24
Q

What is the leading case on state liability?

A

Francovich

25
Q

What are the circumstances of the Francovich case?

A
  • 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.
26
Q

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

A
  • 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.
27
Q

What does “sufficiently serious” mean?

A

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

28
Q

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

A
  • 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