Direct and indirect effect

Question 1

What is direct effect?

Answer 1

Directly effective provisions of EU law give rise to rights and obligations that an individual may enforce before their national courts.

Question 2

Treaty articles have direct effect if what test is met?

Answer 2

The Van Gend test

Question 3

What is the Van Gend test?

Answer 3

1. Sufficiently clear and precise
2. Unconditional
3. Leaves no room for discretion

Question 4

Regulations are vertically and horizontally effective. Which Treaty Article?

Answer 4

Article 288 TFEU

Question 5

Directives are vertically effective. Which two cases?

Answer 5

Van Duyn; Marshall v Southampton

Question 6

Directives are not capable of horizontal direct effect. Which case?

Answer 6

Duke v GEC Reliance

Question 7

“The national government must have exceeded the time limit without the measure being properly implemented.” Which case?

Answer 7

Ratti

Question 8

In which case is the test set out for whether something is an “emanation of the state” and thus capable of vertical direct effect?

Answer 8

Foster v British Gas

Question 9

What are the Foster criteria?

Answer 9

1. Carries out a public service pursuant to a statutory duty
2. The service is under statutory control
3. The body has special powers

Question 10

Not all Foster criteria need to be fulfilled. Which case?

Answer 10

NUT v St Mary’s School

Question 11

In which case was it found that a private, water company was an “emanation of the state”?

Answer 11

Griffin v South West Water

Question 12

In what case was it found that a state owned company was not an emanation of the state?

Answer 12

Doughty v Rolls Royce Plc

Question 13

What is the doctrine of indirect effect?

Answer 13

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.

Question 14

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?

Answer 14

Pickstone v Freemans

Question 15

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?

Answer 15

Lister v Forth Dry Dock

Question 16

In which case did Lord Templeman say the following?

Answer 16

Lord Templeman, Lister v Forth Dry Dock

Question 17

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…’

Answer 17

Lister v Forth Dry Dock

Question 18

What is Lord Templeman’s ruling in Lister v Forth Dry Dock?

Answer 18

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…’

Question 19

If there is a clear conflict between UK and EU law, the courts cannot interpret national legislation in line with a directive Which case?

Answer 19

Wagner Miret

Question 20

What are the Frankovich criteria for state liability?

Answer 20

In Francovich, the ECJ ruled that a right of action arises where the following three
conditions are fulfilled:

1. ) 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

Question 21

In which case did the ECJ reformulate the test for state liability? What are the new four criteria?

Answer 21

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.

Question 22

Which case sets out the factors that a court might consider “sufficiently serious”?

Answer 22

R v HM Treasury, ex parte BT plc

Question 23

In R v HM Treasury Ex Parte BP what factors was it decided the court may consider?

Answer 23

1. Have other states made similar mistakes?
2. Was there comission guidance
3. Clarity and precision of the rule breached

Question 24

Non implementation will always be “sufficiently serious”. Which case?

Answer 24

DIllenkofer

Question 25

Failing to make an Article 267 reference will be “sufficiently serious”. Which case?

Answer 25

Kobler

Question 26

In which case was it found that courts should apply indirect effect to non implementing legislation?

Answer 26

Marleasing