direct effect

Question 1

what are the three mechanisms that the court can use to protect the rights of individuals under EU law?

Answer 1

direct effect
indirect effect
state liability

these go in a logical order
if one fails go on to the next

Question 2

what is direct effect?

Answer 2

the capacity of a provision of EU law to be invoked and relied upon by individuals before national courts

Question 3

what is direct applicability?

Answer 3

the capacity of an EU act to have immediate legal effect within national legal orders

no need to make domestic law in order to transpose the EU act into the national legal order

EU regulations and directives are directly applicable

EU directives are not

Question 4

what is horizontal direct effect?

Answer 4

private party brings a claim before a national court against another private party

equally powerful

Question 5

what is vertical direct effect?

Answer 5

private party brings a claim before a national court against the state
hierarchal

Question 6

what does the case of Van Gend en Loos hold that a provision must be for it to have direct effect?

Answer 6

sufficiently:
- clear
- precise
- unconditional

Question 7

do EU treaties have direct effect?

Answer 7

yes
vertical direct effect - Van Gend en Loos
horizontal direct effect - Defrenne

Question 8

do EU regulations have direct effect?

Answer 8

yes
vertical direct effect - Leonesia
horizontal direct effect - Munoz

Question 9

do directives have direct effect?

Answer 9

vertical direct effect - Van Duyn v Home office
not horizontal direct effect - Marshall

Question 10

how can someone get around the limits of Marshall = directives have no horizontal direct effect ?

Answer 10

if the defendant is an emanation of the notion of state
indirect effect
incidental effect
EU directives giving effect to general principles of EU law

Question 11

what is the test for the emanation of the notion of state?

Answer 11

Farell test
is an entity under the authority or control of the state
OR
does it perform a public interest task for which it has special powers beyond those applicable to normal rules applying between individuals

e.g. universities, tax authorities

Question 12

can EU decisions have direct effect?

Answer 12

vertical direct effect
may have horizontal direct effect

Question 13

what is indirect effect?

Answer 13

national courts must interpret national law as far as possible in the light of the wording and purpose of the EU directive

Question 14

what does the case of Marleasing hold - indirect effect?

Answer 14

all national legislation whether adopted before or after a directive, must be interpreted in line with EU law

Question 15

what are the limits to indirect effect?

Answer 15

there must be no contra legem interpretation

Question 16

what is the negative obligation of national courts?

Answer 16

before the expiry of transposition deadline

obligation of national courts not to adopt an interpretation that would seriously compromise after the period for transposition has expired, attainment of the objectives pursued by the directive - Adeneler

Question 17

what is the positive obligation - after the expiry of transposition period?

Answer 17

indirect effect
obligation to interpret as far as possible national law compliantly - Marleasing

Question 18

what is incidental effect?

Answer 18

protects against the enforcement of a domestic law that is incompatible with an EU directive

establishes the illegality of national law and prevent its application thereby offering protection from claims of third parties

Question 19

what did the case of Mangold hold in relation to general principles

Answer 19

a general principle can have direct effect even if relevant directive has not yet entered into force