Direct and indirect effect Flashcards
What is direct effect?
Directly effective provisions of EU law give rise to rights and obligations that an individual may enforce before their national courts.
Treaty articles have direct effect if what test is met?
The Van Gend test
What is the Van Gend test?
- Sufficiently clear and precise
- Unconditional
- Leaves no room for discretion
Regulations are vertically and horizontally effective. Which Treaty Article?
Article 288 TFEU
Directives are vertically effective. Which two cases?
Van Duyn; Marshall v Southampton
Directives are not capable of horizontal direct effect. Which case?
Duke v GEC Reliance
“The national government must have exceeded the time limit without the measure being properly implemented.” Which case?
Ratti
In which case is the test set out for whether something is an “emanation of the state” and thus capable of vertical direct effect?
Foster v British Gas
What are the Foster criteria?
- Carries out a public service pursuant to a statutory duty
- The service is under statutory control
- The body has special powers
Not all Foster criteria need to be fulfilled. Which case?
NUT v St Mary’s School
In which case was it found that a private, water company was an “emanation of the state”?
Griffin v South West Water
In what case was it found that a state owned company was not an emanation of the state?
Doughty v Rolls Royce Plc
What is the doctrine of indirect effect?
The doctrine of indirect effect, developed in Von Colson and Marleasing, is the principle that national courts are under a duty to interpret national laws to be in line with the aims of any relevant EU law.
In which case did the House of Lords find that Equal Pay legislation had to be read in accordance with (what is now) Article 157 TFEU?
Pickstone v Freemans
In which case did the House of Lords find that Equal Pay legislation had to be read in accordance with (what is now) Article 157 TFEU?
Lister v Forth Dry Dock
In which case did Lord Templeman say the following?
Lord Templeman, Lister v Forth Dry Dock
The ‘courts of the United Kingdom are under a duty to follow the practice of the European Court of Justice by giving a purposive construction to Directives and to Regulations issued for the purpose of complying with Directive…’
Lister v Forth Dry Dock
What is Lord Templeman’s ruling in Lister v Forth Dry Dock?
The ‘courts of the United Kingdom are under a duty to follow the practice of the European Court of Justice by giving a purposive construction to Directives and to Regulations issued for the purpose of complying with Directive…’
If there is a clear conflict between UK and EU law, the courts cannot interpret national legislation in line with a directive Which case?
Wagner Miret
What are the Frankovich criteria for state liability?
In Francovich, the ECJ ruled that a right of action arises where the following three
conditions are fulfilled:
- ) the Directive confers rights on individuals;
2) the content of those rights is identifiable from the Directive;
3) there is a causal link between the failure to implement the Directive and the
damage
In which case did the ECJ reformulate the test for state liability? What are the new four criteria?
Brasserie du Percher/Factortame
1) the breach infringes a rule of law intended to confer rights on individuals;
2) the breach is sufficiently serious;
3) there is a direct causal link between the breach of the State’s obligation and the
damage to the applicant.
Which case sets out the factors that a court might consider “sufficiently serious”?
R v HM Treasury, ex parte BT plc
In R v HM Treasury Ex Parte BP what factors was it decided the court may consider?
- Have other states made similar mistakes?
- Was there comission guidance
- Clarity and precision of the rule breached
Non implementation will always be “sufficiently serious”. Which case?
DIllenkofer
Failing to make an Article 267 reference will be “sufficiently serious”. Which case?
Kobler
In which case was it found that courts should apply indirect effect to non implementing legislation?
Marleasing
