Chapter 1 Flashcards
What were the initial primary mechanisms in the EEC Treaty which enforced the obligations of MS?
Article 169
Article 170
Article 177 (referral of qs)
Article 189 - regs are binding and directly applicable
Explain Van Gend En Loos
About Article 12 - MSs must not introduce new custom duties on imports or exports of CEE CoJ decided that the EEC Treaty was a: > new legal order > that treaty articles had direct effect > paved the way for EU Supremacy
Costa case
The Supremacy of EU Law
backed up by Handelgesellschaft + Simmenthal
Formally recognised in Article 17 of the Lison Treaty
Handelgesellschaft
EU law takes precedence over the national constitution of a MS including fundamental rights
Simmenthal
Nat courts must NOT wait for a national measure which conflicted with EU law to be set aside by national authority
Van Gend en Loos critea
> sufficiently clear and precise
unconditional
defined in Zootecnica
Van Gend en Loos will not be stopped by…
Questions of interpretation which can be resolved by a court
Van Duyn
A MS choosing among several possible means of achieving the result required by the Directive
Francovich
Defrenne v Sabene
Air hostess sex discrimination
Infringed article 119 EEC (now article 157 TFEU)
Not clear - to identify situations which other indirect disc arose
MS had to take more explicit measures
Van Colson
prison sex discrim
Article 6 of Equal Treatment Directive
Not clear + precise - ‘such measures as are necessary’
Francovich
Directive 80/897
Bankruptcy - claim outstanding wages
Identity of person liable not clear
No direct effect
Alfrons Lutticke
Article 110 TFEU
Imposed a positive obligation
Was directly effective
Horizontal / Direct Effect for Treaties
Yes both
Van Gend en Loos - Vertical
Sabena - Horizontal
Horizontal / Direct Effect for Regulations
Yes both
Politics s.a.s
Must comply with Van Gend en Loos
for example in Azienda, he provisions of 2 regulations did not have direct effect because those provisions specifically required MS to define a phrase
Horizontal / Direct Effect for Decisions
Yes they have direct effect (Franx Grad)
But only to the party tp whom the decision was addressed (Carp Snc)
Direct Effect for Directives
Vertical / Horizontal
Van Duyn
They could have Direct Effect as long as they satisfy the VGeL critera
BUT
Ratti
Created a new rationale
A MS cannot rely against individuals on its own failure to perform the obligations that the Directive entails
A DE is a SOLUTION when MS fail to implement properly
No horizontal effect - Marshall
Conditions for a Directive having DE
> must satisfy the VGeL critera The Implementation Date must have passed Ratti > package solvents in conformity with Directive 73/173 and to apply Directive 77/728 > Directive 73 had DE as deadline passed
A Directive can also have DE even when…
Partially or incorrectly implemented
Verbond van Nederlandse
Implemented but not applied in such a way as to achieve the result sought by it
Marks & Spencer plc v
Can a directive have horizontal effect?
Marshall v Southampton and South West Area Health Authority
sex discrimination - violated Directive 76/307
CoJ agreed that Directive could not have horizontal effect against a private individual
But a person could rely on a Directive against the State regardless of the capacity that the State was acting in
What are emanations of the state?
Becker - tax authorities
Local/regional authorities - Fratelli
Cindependent police force - Johnston
Criteria for checking something is an emanations of the force
Foster
Biparte Test +
Tripartite test used
What is the Tripartite test?
A body which:
> has been made responsible bc of a measure adopted by the State for providing a public service
> under the control of the state and
> has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals
^^^ all elements must be satisfied
What is the Bipartite test?
Organisations or bodies which:
> were subject to the authority or control of the state
> had special powers beyond those which result from the normal rules applicable in relations between individuals
When was the Tripartite Test used?
Doughty v Rolls Royce
Griffin
Salamander AG
(annulment of Directive 98/43/EC)
Portgas
When was the Bipartite Test used?
National Union of Teachers (kinda)
Kampelmann
Sozialhilfeverband
How was the Bipartite/Tripartite test resolved?
In Farrell
Reformulated Bipartite Test
> They are legal persons governed by public law that are part of the State in the broad sense such as local or regional authorities; or
> They are subject to the authority or control of a public body; or
> They have been required, by such a body, to perform a task in the public interest and have been given, for that purpose, such special powers.
What is Indirect Effect
Imposing an interpretive obligation
Interpretation of national law in a way that conforms to the Directive
Von Colson
No direct effect as not unconditonal/clear
Introduced indirect effect
Replied on Article 5 EC which requires that Member States ‘take all appropriate measures’ to ensure that their obligations under EU law are fulfilled, and drew from this the principle of indirect effect.
Is Indirect Effect horizontal and vertical?
It is vertical - Van Colson
Also horizontal - Harz
Can Indirect Effect apply when the law was passed before the EU rule?
Yes
Marleasing
Pre-existing Spanish civil code
Spain has not implemented the Directive + deadline passed
What scope does Indirect Effect have?
Adeneler
Only available once implementation deadline passed
Marleasing
To interpret ‘as far as possible’
Wagner
No way of interpreting spanish law to conform it to EU law so no indirect effect
Pupino
Cant have a contradiction
(Kolpinghuis)
Limited by General Principles of EU Law
IDT Card Services:
- doesnt have to be ambiguous
- interpretation can change meaning
- cannot go BEYOND / rewrite legislation
- not to make policy choices that it is not equipped to male
What is State Liability
Compensation where they have incurred a loss as a result of the failure of that MS to fulfil its obligations under EU law
Where did State Liability come from?
Francovich
No Direct Effect
No pre-existing national law
Italy was liable for not having implemented this Directive
Article 5 EC - requirement on Member States to fulfil their Treaty obligations also included remedying the consequences of breaching those obligations.
What are the Francovich conditions ?
For State Liability initially
> result prescribed by the directive should entail the grant of rights to individuals
> possible to identify the content of those rights
> causal link between breach of state and loss by parties
Where were the Francovich conditions applied ?
Wagner
Spanish management fees one
> liable as Spain had failed to implement the Directive properly
What are the Brasserie conditions?
For State Liability
- The rule of law infringed must be intended to confer rights on individuals.
- The breach must be sufficiently serious.
- There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.
What does it mean by ‘sufficiently serious’? Brasserie
whether the Member State had ‘manifestly and gravely disregarded the limits of its discretion’
Factors:
> Clarity and precision of the rule breached
> The measure of discretion left to the MS by the rule
> Whether the breach was intentional
> Whether the breach was excusable
> The extent to which a position taken by a union institution may have contributed to the breach
> The extent to which the Member States had adopted or retained national measures contrary to EU law.
Where were the Brasserie conditions applied?
R v HM Treasury
Excusable bc
The lack of precision in the relevant provision of the directive.
The UK’s interpretation of what was required was made in good faith.
The same interpretation of the provision as made by the UK had also been made by other Member States.
That interpretation ‘was not manifestly contrary to the wording of the directive or the objective pursued by it’.
There was no guidance available through either case law of the Court of Justice or from the Commission, which had not raised the matter with the UK when it had implemented the Directive.
Hedley Lomas
> The Court found that, in this context, the first condition for state liability in the test in Brasserie du Pêcheur was fulfilled because Article 34 TFEU conferred rights on exporters.
How were the two tests for state liability resolved?
Dillenkofer
Two tests are the same in substance
F test - only when there is a failure to take any steps to implement a directive
A failure by a Member State to take steps to implement a directive once the deadline for implementation has passed, as had occurred in Francovich, is of itself a sufficiently serious breach under the Brasserie du Pêcheur test.
any breach which would satisfy the Francovich test would also satisfy the Brasserie du Pêcheur test.
That makes it an AUTOMATICALLY SERIOUS BREACH !
Therefore anything under the F test is automatically under the B test as it is a serious breach
