Direct Effect Flashcards
(28 cards)
What are the three principals developed by the CJEU to protect citizens
- Direct effect
- Indirect effect
- State liability
What is a directly effective provision?
EU law which contains a right – or an obligation – and which is capable of being enforced by individuals in national courts.
What makes up the dual objective of direct effect?
- Effectively protect citizens’ rights under EU law in national courts.
Ensure Member States’ compliance with EU law.
What does direct effect mean for member states?
The commission and the citizen are watching that the member states are complying with EU Law.
What is the leading case of Direct effect ?
Van Gend en Loos
What is the Van Gend en Loos Test?
Following Van Gend en Loos, in order to be directly effective, a provision of EU law must constitute a complete legal obligation capable of enforcement by the courts.
What are the three requirements of the Van Gend en Loos Test?
- The provision must be sufficiently clear and precise.
- The provision must be unconditional (i.e. not be qualified by any reservation or condition).
- The provision must not be dependent on further action by the Member States or the EU.
What does a provision have to be to be directly effective?
Clearly identifiable right. It must not be vague or aspirational.
What did Zaera find?
A reference to “raising the standard of living” in Art. 2 EC Treaty was not capable of direct effect.
What is vertical direct effect?
Individuals can rely on directly effective EU law in proceedings against the State or public authorities.
What is horizontal direct effect?
Individuals can rely on directly effective EU law in proceedings against other individuals or private entities.
If the Van Gend Test is met are treaty provisions vertically and horizontally effective?
Yes
Are regulations directly effective?
No they are directly applicable - they can only be effective if they satisfy the Van Gend test.
Why do regulations usually fail the Van Gend test?
Most of the time if a direct effect claim fails it is because sections of an article is unclear.
Regulations very rarely fail though because they are so clear.
On what condition is a decision effective both horizontally and vertically
Depending on its addressee.
What does Fruit Company say about the direct effect of International Agreements?
On balance, given the flexibility of the agreement, the possibility of derogation and the power of unilateral withdrawal from its obligations, the agreement was NOT capable of conferring directly effective rights on citizens.
What did Portugal v Council conclude?
Not possible for the GATT provision to have direct effect.
What are the two scenarios on direct effect and international agreements?
- Direct effect of international agreement used to confer right on individual
- Direct effect of international agreement used to challenge legal validity of conflicting EU law.
What is the case proving scenario one ?
Case 101/81 Kupferberg.
Even though limited possibilities when is scenario 2 possible under common law?
Cases C-401-403/12 Utrecht EU:C:2015:4
1. Nature of the international agreement must be such as to not preclude reliance on it. 2. Provisions of the agreement must be sufficiently certain and precise.
What must occur post Brexit in-regard to directives and direct effect?
Directives are not directly applicable but must be transposed into national law – always dependent on further action by the Member States.
What does the case of Ratti state about estoppel?
“[A] Member State which has not adopted the implementing measures required by the Directive in the prescribed period may not rely, as against individuals, on its own failure to perform the obligations which the Directive entails.”
When is the third limb of the Van Gend Test satisfied by default?
Third condition of Van Gend test is taken to be satisfied if the implementation deadline has passed. Because the chance of the member state to act has gone meaning that they are to blame.
When is a directive capable of direct effect post implementation deadline?
Not implemented the Directive at all (Ratti)
Incorrectly or improperly implemented the Directive (Case 51/76 VNO)
Correctly implemented the Directive but the application of the national measures is such that the result of the Directive is not achieved (Case C-62/00, Marks and Spencer)
