Direct And Indirect Effect

Question 0

Van Gend en Loos

Answer 0

1963

Facts - customs duties imposed on goods going into the Netherlands

MS argued - individuals should not be able to directly rely on international law in the national courts. International law should only be binding at the intergovernmental level.

ECJ held - individuals should be able to rely

Conditions : the treaty article has to be clear, precise and unconditional.

Reasoning
(1) Treaty created a new legal order
(2)

Question 1

What is Direct Effect?

Answer 1

Broad meaning : provisions of EU law can be relied on by individuals before national courts

Narrow meaning : EU law can confer rights directly on individuals

Craig and de Burca

Question 2

DE of Treaty Articles

Answer 2

Yes

Van Gend en Loos

Question 3

DE of Regulations

Answer 3

Art 288 TFEU - regulation shall have general application

Leonesio v Italian Ministry of Agriculture - regulations become part of the national legal system

Question 4

DE of Decisions

Answer 4

Art 288 a decision shall be binding to whom it is addressed

Grad v Finanzamt

Question 5

DE of Directives

Answer 5

Van Duyn v Home Office : directives can have DE, their objective is binding

(1) Clear, precise and unconditional - Van Gend en Loos

(2) Deadline for implementation has passed, Ratti
Inter-Environment Wallonie - during the period for implementation, the government cannot do anything contrary to the objectives

(3) Action against the state or an emanation of the state, Marshall v SHA
Foster v British Gas
1) provides a public service
2) given that responsibility by the state
3) has, for that purpose, special powers
NUT v St Mary’s School - May not need to have special powers

Question 6

Examples of ‘Emanation of a state’

Answer 6

Tax authorities, Becker
Local authorities, Fratelli Constanzo
Police, Johnston
Public health authorities, Marshall v SHA
Schools, NUT v St Mary's School

Question 7

Vertical vs Horizontal DE

Answer 7

Vertical - action against the state
Van Gend en Loos

Horizontal - action against a private individual
Defrenne v SABENA, airline stewardess

Question 8

Indirect effect

Answer 8

‘Compatible interpretation’

Von Colson and Kannan : courts are required to interpret national laws in a way to comply with EU law
Marleasing : “in so far as the court is given discretion”
Wagner Miret : unless he national law is completely incompatible

Hard v Deautsch Tradaz : horizontal application

Kolpinghuis Nijmengen BV - no retroactive criminal prosecution