Direct and Indirect Effect

Question 1

When is the principle of Direct Effect applied?

Answer 1

Where a MS:
i) failed to implement a directive
ii) has implemented it in a defective manner
iii) does not give the individual the full extent of the rights that should be enjoyed under the EU measure

Question 2

Van Gend En Loos

Answer 2

• EU law not only applies to MS, but institutions of the state
• In deciding whether a provision is directly effective, the provision must
  1) Be sufficiently clear and precise
  2) Be unconditional
• Leave no room for the exercise of discretion in implementation by the MS institutions

Question 3

Reyners v Belgium

Answer 3

• Dutch national challenged a Belgian law that excluded non-Belgians from the legal profession, saying that it breached Article 49 TFEU
• Freedom of establishment
• Court followed Van Gend en Loos
• Article 49 did have direct effect

Question 4

Bosman

Answer 4

• Football transfer system meant that clubs could hold onto players after contract expired until they accepted an offer from another team
• Argued that the rule was contrary to the treaties
• Free movement of goods, people
• Won case

Question 5

Commission v Italy

Answer 5

• ‘A regulation shall have general application. It shall be binding in its entirety and directly applicable in all states’

Question 6

Antonio Munoz v Frumar

Answer 6

• Establishes that regulations are subject to direct effect
• Regulation laid down standards by which grapes were to be classified
• Munoz took action against Frumar on the basis that he sold incorrectly labelled grapes
• Regulation was specified to apply to all operators in the grape industry
• ECJ held - Since the purpose of the regulation was to keep products of poor quality off the market, it must have intended to give a trader an opportunity to bring proceedings against a competitor to enforce the regulation

Question 7

Franz Grand

Answer 7

‘A decision shall be binding in its entirety upon those to whom it is addressed’

Question 8

Viking Line

Answer 8

• Trade union sought to prevent Viking Line from shifting its legal base to Estonia where lower pay rates applied than in Finland
• Argued freedom of establishment
• Established that direct effect can operate on a private body

Question 9

Marshall

Answer 9

• Mrs Marshall challenged the health authority’s compulsory retirement age of 65 for men and 60 for women
• UK Court of Appeal sent a preliminary reference to see whether the health authority was a State (vertical) or a private body (horizontal)
• Held as an organ of the State

Question 10

Foster v British Gas

Answer 10

• Determined ‘organ of the state’ as a body which has been given responsibility for providing
  a) a public service
  b) under the control of the state and
  c)has powers beyond that normally applicable to relations between private individuals

Question 11

Van Duyn v Home Office

Answer 11

• Van Duyn was refused entrance into the UK to work with the church of Scientology
• UK government had imposed a ban on foreign scientologists entering the UK
• Van Duyn argued that it was against her rights as an EU citizen
• Article 3 provided that measures taken to deny someone entrance to a MS had to be based on the personal conduct of that individual
• ECJ held that it would be incompatible with the binding effect of a directive if a MS was able to change it based on a national measure
• In this case a ban on foreign scientologists
• Changed since 2004 Directive - must be judged on personal conduct

Question 12

Ratti

Answer 12

• Mr Ratti was a solvents manufacturer who was prosecuted for failure to label his products in accordance with national law
• He sought to rely on two directives that amended the Italian law he was being prosecuted under
• One time limit had passed and one had not
• Question was whether he could rely on the directives to avoid prosecution under national law
• Established that once the time limit had passed, one could rely on them
• Therefore Ratti could rely on the one that had passed, but not the other

Question 13

Verbond

Answer 13

• A directive had been implemented in an incomplete manner by the Dutch government
• Despite the fact that the directive had been implemented into Dutch law, Verbond could still invoke the directive as it was meant to be

Question 14

Colson

Answer 14

• Two female workers sought employment at an all-male prison
• Refused on the grounds of their sex
• Sued under German law which had implemented the Directive on Equal Treatment
• As the terms of the directive were not sufficiently clear and unconditional, they did not satisfy the test for direct effect - Van Gend en Loos
• ECJ Held
• Objective of directive was to implement equal treatment for men and women particularly in the area of access to work
• National courts were required to interpret their national law in the light of the wording and purpose of the directive

Question 15

Marleasing

Answer 15

• Directive 68/151/EC issued which provided a list of reasons why a company could be seen as void
• Had not been transposed into Spanish law
• Defendants did not fall within the reasons set out in the new (not transposed) directive
• Spanish court was obliged to interpret Spanish law in line with the Directive despite not being transposed
• Also held that all legislation must be interpreted accordingly whether it was enacted before or after EU law

Question 16

Pfeiffer

Answer 16

• Held the interpretive obligation applies not only to national law but to the national legal system as a whole

Question 17

Arcaro

Answer 17

• Plaintiff had breached terms of a Directive in the area of environmental pollution
• Not fully transposed yet
• Italian court referred question as to whether it could prosecute any offences against an unimplemented directive
  Not possible to prosecute

Question 18

Adeneler

Answer 18

• CJEU established a tiered obligation
  i) Post date of transposition - full duty
  ii) During period of transposition - MS must refrain from taking any measure that would oppose the Directive