Direct Applicability And Effect

Question 0

Van Duyn

Answer 0

Criteria for whether a provision of community law has direct effect
- needs to be clear and precise

• unconditional without exceptions
• does not require any further measures to be implemented by the MS

Question 1

Van gend en Loos

Answer 1

Tried to enforce Art 30 (prohibition of customs duties and charged on imports/exports and any equivalent measures - Van Gend could enforce this against the Dutch government if

• provision is clear and precise
• provision is unconditional and not dependent on other legal provisions
• must confer a specific right upon which a citizen can base a claim

If these are met provisions of the treaties can be given the same legal effect as regulations under Art 288 TFEU
Established the classic understanding of direct effect – the immediate enforceability by individual applicants of those provisions in national court

Question 2

Van Duyn criteria 1 : needs to be clear and precise

Answer 2

Those treaty articles that are general will not suffice. Art 4(3) of TEU is an example “ union and MS shall in full mutual respect assists each other in carrying out tasks which flow from the treaties” - General and insufficient to cause a direct effect application

Question 3

Van Duyn criteria no 2 : unconditional without exceptions

Answer 3

Provisions should not be dependent on other provisions or actions and must be self sufficient. Art 30 is a good example - prohibition of customs duties and charges

Question 4

Van Duyn criteria no 3 : does not require any further measures to be implemented by the MS

Answer 4

Means that direct effect is postponed until the deadline for implementing a measure has passed and is more applicable to directives than to primary EU law

Question 5

Definition of Direct Applicability

Answer 5

Refers to the means or mode of incorporation or the way in which international law finds validity in national legal systems - international law automatically binding in national states

Question 6

Definition of Directly Effective

Answer 6

Term given to judicial enforcement of rights arising from provisions of EU law which can be upheld in favour of individuals in the court of MS

Question 7

Direct Effect

Answer 7

The right to rely directly on EU law in the absence of national law or in the face of conflicting national law
- can apply to articles of treaty, regulations, directives and decisions – any binding law in terms of Art 288 TFEU

Question 8

Direct Applicability v Direct Effect

Answer 8

DA– mode of incorporation ; can only apply to some forms of law
DE– judicial development for the enforcement of rights ; can apply to all forms of law

Question 9

Are directives directly applicable?

Answer 9

NO

• directives can only apply to persons whom they are addressed
• they are no self executing and in most cases must be transformed by national legislation into national law
• can give rise to vertical direct effect (horizontal - questionable will be discussed in other cards )

Question 10

Definition of a Regulation

Answer 10

General provisions of legislation applicable to all legal persons in the EU rather than to specific individuals or groups

• detailed form of legislation to ensure that the law in the MS is exactly the same
• become legally valid in the MS without any need for implementation and this process is sometimes described as self executing

Question 11

Commission v Italy (slaughtered cows)

Answer 11

MS cannot subject the regulation to any implementing measures than those required by the act itself

Question 12

Commission v UK (tachographs)

Answer 12

Circumstances where MS are required to provide implementing measures to ensure the effectiveness of the regulation.

Question 13

Definition of a Directive

Answer 13

Set out aims in which must be achieved but leave the choice of the form and method of implementation to the MS
-MS are given a period in which to implement directives which can range from one year to five or more depending on the complexity of the subject matter and the urgency for legislation

Question 14

Regulations v Directives

Answer 14

D:

• aimed at MS or named individuals
• require some form of implementation in order to take effect or have validity in the EU legal order
• designed with the harmonization of different national rules in mind
• more likely to be framework provisions laying down general guidelines and are therefore less precise by nature

R:

• apply to everyone
• directly applicable (Art 288)
• aimed to be prescriptive by providing one rule for the whole of the EU
• detailed and precise

Question 15

Verbond van Nederlandse

Answer 15

Although directives are not directly applicable in that they are not automatic or general in application and give rights without further implementation, directives have been held to give rise to directly enforceable rights in specific circumstances ie. where they have not been implemented or have been incorrectly implemented

Question 16

Marshall v Southampton and South West Health Authority

Answer 16

Court of justice decided that directives could not give rise to rights which could be enforced against other individuals (horizontal direct effect)

Question 17

Pubblico Ministero v Ratti

Answer 17

Held that if the time limit given for the implementation of the directive has not expired it cannot have direct effect
- directives are only directly effective if the prescribed date by which the MS should have implemented it had passed

Question 18

Defrenne v SABENA

Answer 18

Directive must give clearly identifiable rights to individuals
- EU court decided that “the principle that men and women should receive equal pay laid out in Art 157 TFEU may be relied inn before national courts - these courts have a duty to ensure the protection of rights that the provision vests to the individual”

Question 19

Conditions to enforce direct effect of directives

Answer 19

A) directive must give clearly identifiable rights to individuals (Dafrenne v SABENA)

B) the time limit for the MS to implement the directive must have passed (Pubblico Ministero v Ratti)

C) directive can be enforce only against the state (vertically) (Marshall v Southampton and South West Health Authority)