DIRECT AND INDIRECT EFFECT

Question 1

Direct effect

Answer 1

A measure that has direct is one that is capable of direct enforcement in national courts

Question 2

‘Directly applicable’

Answer 2

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

Question 3

Article 288 TFEU- measure that may have direct effect

Answer 3

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.

Question 4

Van Gend en Loos

Answer 4

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.

Question 5

Case 43/71 Politi Sas v Ministero delle Finanze [1973] - regulations

Answer 5

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.

Question 6

Case 9/70 Grad v Finanzamt Traunstein - direct effect of decisions

Answer 6

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.

Question 7

Case 41/74 Van Duyn v Home Office [1974]- directives

Answer 7

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

Question 8

Case C-322/88 Grimaldi v Fonds des Maladies Profesionnels [1989] - recommendations and opinions

Answer 8

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.

Question 9

Conditions for the direct effect of treaty articles and directives

Answer 9

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.

Question 10

Case 43/75 Defrenne v Sabena [1976]

Answer 10

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.

Question 11

R (on the application of Bancoult) v Secretary of State for foreign and commonwealth affairs -

Answer 11

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.

Question 12

131/79 R v Secretary of State for Home Affairs

Answer 12

regulations need to be sufficiently clear and unconditional if they are to have direct effect.

Question 13

conditions for direct effect of decisions

Answer 13

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.

Question 14

exception for rules like decisions not to have direct effect.

Answer 14

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

Question 15

conditions for the direct effect of directives

Answer 15

• 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.

Question 16

vertical direct effect

Answer 16

can only have direct effect in proceeding brought by an individual or business against the state

Question 17

horizontal direct effect

Answer 17

proceeding brought by an individual or business against another individual or business.

Question 18

case c-188/89 foster v british gas plc

Answer 18

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

Question 19

Case C-413/15 Farrell v Whitty and others

Answer 19

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.

Question 20

indirect effect

Answer 20

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.

Question 21

indirect effect of treaty articles, regulations and decisions

Answer 21

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

Question 22

indirect effect of recommendations and opinions

Answer 22

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

Question 23

indirect effect of directives

Answer 23

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.

Question 24

Case 14/83 Van Colson and Kamann v Land Nordrhein-Westfalen - indirect effect of directives

Answer 24

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.

Question 25

horizontal indirect effect - Case c-106 Marleasing

Answer 25

Case: Marleasing SA v La Comercial (background facts not that important). Spanish case, regarding Spanish Civil Code.
Re EU Company Law Directive 68/151 vs Spanish Civil
Code. Spain had no implemented the Directive, deadline passed. Marleasing challenges validity of a company, La Commercial. Arguing that the company was created without cause (grounds provided by the Spanish Civil Code). La Commercial has a defence, the Directive, which gives an exhaustive list of all the circumstances under which a
company can be invalid, and ‘lack of cause’ was not one of
them.
ECJ decides that indirect effect is available irrespective
of when the national law was made, even if it was
made before the relevant EU Law, indirect effect is still
applicable. (‘in applying national law, whether the provisions
in question were adopted before or after the directive, the
national court called upon to interpret it is required to do so,
as far as possible, in the light of the wording and the
purpose of the directive in order to achieve the result pursued
by the latter’).

Question 26

difference between indirect and direct effect in directives

Answer 26

in direct effect you rely on the
provision of EU law itself; if relying on indirect effect, you have to
get national court to interpret national law in a way that is
compatible.

Question 27

Can Indirect Effect apply horizontally?

Answer 27

YES Harz v Deutsche Tradax -Indirect effect available against a private party. Judgement handed down same day as Von
Colson. This gives it a huge advantage over direct effect: a
Directive cannot have direct effect against a private party; but can have indirect effect against a private party.

Question 28

limits of indirect effect: when its not available

Answer 28

• Provisions of national law are unambiguous
• Time for implementation of an EU Directive has not expired.
• It is against principles of legal certainty and non-retroactivity

Question 29

Case C-334/92 Wagner - indirect effect when national law is unambiguous

Answer 29

insolvency directive that protected wages, but directive didn’t distinguish what types of employees that were entitled to a compensation. spanish law did not apply to senior management. Wagner wanted spanish law to comply with EU law but this was not possible as the national law was unambiguous and therefore its remedy was to sue the MS

Question 30

Case C-212/04 Adeneler v ELOG [2006] ECR I-6057 - time for implementation of an EU Directive has not expired

Answer 30

Can’t benchmark an EU law that has not passed the implementation period

Question 31

it is against principles of legal certainty and non-retroactivity -

Answer 31

a directive cannot, of itself and independently of a law adopted for its implementation, have the effect of determining or aggravating the liability in criminal law of persons who act in contravention of the provisions of that directive.” [14] IT IS NOT FOR EU LAW TO IMPOSE CRIMINAL SANCTIONS