DIRECT AND INDIRECT EFFECT Flashcards
Direct effect
A measure that has direct is one that is capable of direct enforcement in national courts
‘Directly applicable’
some EU laws are said to be directly applicable in the sense that they become part of a member state law without the need for them to be transposed into national law
Article 288 TFEU- measure that may have direct effect
article that provides that the EU may exercise its power through various types of legislations. legislations like treaties, regulations, and decisions. Directives are only binding on MS as to the result that is to be achieved as MS have discretion on how directives are achieved.
Van Gend en Loos
case that established the principle of direct effect. the case concerned a treaty article as Van Gend en Loos was required by Dutch law to pay an increased customs duty on imports and this is a violation of what we now know to be article 30. A litigant can rely on provisions of an EU treaty before national courts.
Case 43/71 Politi Sas v Ministero delle Finanze [1973] - regulations
Italy had levied import taxes on pork, contrary to the provision of an EU regulation, litigant relied on the regulation to challenge the taxes and the CoJ ruled that EU regulations could be directly effective.
Case 9/70 Grad v Finanzamt Traunstein - direct effect of decisions
A decision provided for the replacement of national freight taxes by a common EU freight tax. A freight transported sought to rely on the decision to challenge German freight tax. CoJ ruled that the decision had binding effect.
Case 41/74 Van Duyn v Home Office [1974]- directives
dutch national applied for permission to enter the UK to work for the church of scientology. UK officially disapproved of this organisation and they refused him entry under article 45 TFEU which allowed MS to derogate on public policy. Van duyn sought to enforce council directive 64/221/EEC of 25th of feb on the co-ordination of special measure concerning the movement and residence of foreign nationals which are justified on the grounds of public policy, which stated that derogation could be based only on the personal conduct of the applicant.CoJ held that it was possible to rely on the directive to enforce the rights that it contained
Case C-322/88 Grimaldi v Fonds des Maladies Profesionnels [1989] - recommendations and opinions
Grimaldi suffered from a disease that was classified under EU recommendation as an occupational disease, thereby entitling him to compensation. Under french law it was not classified and he sought to rely on the recommendation.CoJ ruled that since recommendations were not intended to have binding legal effect, it would be clearly inappropriate for them to have direct effect. This is the same for opinions.
Conditions for the direct effect of treaty articles and directives
the only precondition for any measures to have direct effect is that the provision in question must be sufficiently clear, precise, and unconditional for reliance to be placed on it in the national courts.
Case 43/75 Defrenne v Sabena [1976]
it is not necessary for an EU law to be clear in its entirety, it just has to be sufficiently clear. the case involves a dispute over the policy of the airline to pay its female cabin crew less than its male crew and compulsorily retire them at a younger age. A woman that worked for the company claimed that this infringed the principle of equality. CoJ held that what is now Article 157 TFEU imposed a clear and unconditional prohibition on direct discrimination and was directly effective to this extent. however it was not sufficiently clear in respect of more indirect discrimination as it didn’t identify what might constitute such discrimination. IF DIRECT DISCRIMINATION IS CONCERNED THEN THE ARTICLE ALWAYS HAS DIRECT EFFECT.
R (on the application of Bancoult) v Secretary of State for foreign and commonwealth affairs -
the applicant, a member of the native population of the Chagos archipelago in the British Indian ocean territory challenged the government’s decision to remove them from the island and stop them from coming back as the island was being used by the UK for defence purposes. he relied on articles 198 and 199 TFEU. in these articles MS agreed to associate countries and territories with the EU in order to promote their development. CoA held that the articles were statements of aspiration and there was no detailed ways in which those objectives could be fulfilled.
131/79 R v Secretary of State for Home Affairs
regulations need to be sufficiently clear and unconditional if they are to have direct effect.
conditions for direct effect of decisions
in case 9/20 Grand v Finanzant Traunstein [1970] the CoJ ruled that a decision could have direct effect if it was unconditional and sufficiently clear and precise to be capable of creating a direct effect. Treaty of Lisbon extended the scope of decisions to decisions who do not have an addressee.
exception for rules like decisions not to have direct effect.
the exception is that a decision which is addressed to the MS (instead of individuals or businesses) will have direct effect if the defendant against whom it is being enforced is a MS or an emanation of the state
conditions for the direct effect of directives
- the provision must be sufficiently clear, precise and unconditional ->Francovich and others v Italy
- the deadline for the transposition into national law must have passed -> Case 148/78 Pubblico Ministero v Ratti
- the defendant must be an emanation of the state -> Case152/84 Marshall v Southampton and South west area health authority.
vertical direct effect
can only have direct effect in proceeding brought by an individual or business against the state
horizontal direct effect
proceeding brought by an individual or business against another individual or business.
case c-188/89 foster v british gas plc
CoJ held that the directive could be relied upon against British Gas because it was an emanation of the MS. it was an emanation of a state because it satisfied the following criteria:
1- it had been responsible by the state for providing a public service
2- it provided that service under the control of the state
3- it had been given special powers to provide that service beyond those normally applicable in relations between individuals.
LOCAL AUTHORITIES ARE GENERALLY EMANATIONS OF A STATE
Case C-413/15 Farrell v Whitty and others
before this case, there was an assumption that the 3 parts of the foster case need to be proved. the CoJ suggested that the 3 parts of the test were alternatives and that a directive may be capable of having direct effect against a body that does not satisfy all three requirements.
indirect effect
obligation on national courts to interpret national law consistently with EU law. EU law is said to have an indirect effect since it influences the interpretation of national law.
indirect effect of treaty articles, regulations and decisions
in principle they have direct effect, but it is an unimportant concept to them, as they won’t have direct effect only if they are unclear or conditional and therefore won’t be of much assistance when interpreting law
indirect effect of recommendations and opinions
they can’t have direct effect, but in Case C-322/88 Grimaldi v Fonds des maladies Professionnelles the CoJ ruled that they could have indirect effect and the reasoning is that since they must have legal effect and therefore should be taken into consideration when interpreting national implementing measures
indirect effect of directives
as some directives may not have direct effect because they are not sufficiently clear and unconditional, and may not be relied upon only against the state of emanation, there arises a possibility for a directives to be used in a national court in interpreting the relevant national court.
Case 14/83 Van Colson and Kamann v Land Nordrhein-Westfalen - indirect effect of directives
2 men appointed as social workers, and 2 females felt that they were discriminated against the Equal treatment directive(76/207) which prohibited discrimination at work on the grounds of sex and required the claimants to pursue claims before the court. the females sought an order for a contract of employment but under german law they were only entitled to recover the travel expenses to their interview. CoJ ruled that the german compensation was not enough.
