Direct Effect

Question 1

What are the three principals developed by the CJEU to protect citizens

Answer 1

1. Direct effect
2. Indirect effect
3. State liability

Question 2

What is a directly effective provision?

Answer 2

EU law which contains a right – or an obligation – and which is capable of being enforced by individuals in national courts.

Question 3

What makes up the dual objective of direct effect?

Answer 3

1. Effectively protect citizens’ rights under EU law in national courts.
   Ensure Member States’ compliance with EU law.

Question 4

What does direct effect mean for member states?

Answer 4

The commission and the citizen are watching that the member states are complying with EU Law.

Question 5

What is the leading case of Direct effect ?

Answer 5

Van Gend en Loos

Question 6

What is the Van Gend en Loos Test?

Answer 6

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.

Question 7

What are the three requirements of the Van Gend en Loos Test?

Answer 7

1. The provision must be sufficiently clear and precise.
   
   2. The provision must be unconditional (i.e. not be qualified by any reservation or condition).
2. The provision must not be dependent on further action by the Member States or the EU.

Question 8

What does a provision have to be to be directly effective?

Answer 8

Clearly identifiable right. It must not be vague or aspirational.

Question 9

What did Zaera find?

Answer 9

A reference to “raising the standard of living” in Art. 2 EC Treaty was not capable of direct effect.

Question 10

What is vertical direct effect?

Answer 10

Individuals can rely on directly effective EU law in proceedings against the State or public authorities.

Question 11

What is horizontal direct effect?

Answer 11

Individuals can rely on directly effective EU law in proceedings against other individuals or private entities.

Question 12

If the Van Gend Test is met are treaty provisions vertically and horizontally effective?

Answer 12

Yes

Question 13

Are regulations directly effective?

Answer 13

No they are directly applicable - they can only be effective if they satisfy the Van Gend test.

Question 14

Why do regulations usually fail the Van Gend test?

Answer 14

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.

Question 15

On what condition is a decision effective both horizontally and vertically

Answer 15

Depending on its addressee.

Question 16

What does Fruit Company say about the direct effect of International Agreements?

Answer 16

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.

Question 17

What did Portugal v Council conclude?

Answer 17

Not possible for the GATT provision to have direct effect.

Question 18

What are the two scenarios on direct effect and international agreements?

Answer 18

1. Direct effect of international agreement used to confer right on individual
2. Direct effect of international agreement used to challenge legal validity of conflicting EU law.

Question 19

What is the case proving scenario one ?

Answer 19

Case 101/81 Kupferberg.

Question 20

Even though limited possibilities when is scenario 2 possible under common law?

Answer 20

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.

Question 21

What must occur post Brexit in-regard to directives and direct effect?

Answer 21

Directives are not directly applicable but must be transposed into national law – always dependent on further action by the Member States.

Question 22

What does the case of Ratti state about estoppel?

Answer 22

“[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.”

Question 23

When is the third limb of the Van Gend Test satisfied by default?

Answer 23

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.

Question 24

When is a directive capable of direct effect post implementation deadline?

Answer 24

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)

Question 25

Which case established that Directives can have vertical direct effect?

Answer 25

Case 8/81 Becker

Question 26

Which case established the possibility of horizontal direct effect?

Answer 26

Case C-152/84 Marshall EU:C:1986:84:

Question 27

What did the CJEU conclude in Faccini Dori

Answer 27

the CJEU confirmed that Directives cannot have horizontal direct effect

Question 28

What was the jurisdiction given by the CJEU inregard to directives not being horizontal direct effect?

Answer 28

1. Textual (wording of Art. 288 TFEU)
2. Would blur the distinction between Regulations and Directives
3. Legal certainty