Direct Effect Flashcards
Define direct applicability
Fully, and uniformly applicable in the MS from the date of its entry without the state implementing it
Define direct effect
Confers immediate right on individuals which can be enforced via national courts, without the express implementation of the national court
Describe the facts of the Van Gend En Loos case
The Netherlands implemented a duty contrary to article 12 of the treaty of Rome, banning increases in customs duties. VGL took Netherlands to court using direct effect. Duty revoked.
What is the reasoning behind the VGL decision?
EEC treaty creates rights as well as obligations. More than just an agreement, new legal order.
VGL was upheld on the basis that the negative obligations contained in the treaty were what?
Clear, precise and unconditional
Which case allows for positive as well as negative obligations under direct effect?
Lutticke
Which case demonstrates that direct effect is horizontally as well as vertically effective in the case of treaties?
Defrenne v SABENA - Female flight attendant
Regulations are directly applicable. True or false.
True
Regulations have direct effect. True or false?
True
Are directives directly effective?
Yes but only vertically
What is the authority for the direct effect of a directive?
Van Duyn v Home Office
Under what circumstances may a directive have direct effect?
If it is sufficiently clear precise and unconditional (VGL)
If the implementation date has passed and it has not been implemented at all (Ratti).
It has been partially or incorrectly implemented (VNO) or it has been correctly implemented but the national measures are not being applied by national authorities in such a way as to achieve the results sought (marks & Spencer plc)
What is the tripartite test of state emanation?
Any body which;
- Is responsible for providing public service
- Is under control of the state
- Has for that purpose special powers
What is the bipartite test, and what case was it applied in?
- Subject to authority of state
- Special powers beyond those applicable between individuals
- Kampleman v Landscaftsverband Westfalen-Lippe
What is the authority for direct effect having vertical effect?
Marshall
What did Costa v ENEL demonstrate?
EU supremacy of law, over Italian law
What are the details of Lutticke? What is the ffect?
Removal of discriminatory internal taes in Germany, this is a negative obligation, but shows that direct effect can be for both positive and negative obligations
Do articles regulations and directives all have direct effect?
Yes
What EEC legislation can have horizontal direct effect?
Regulations an articles
What is the authority case for an emanation of the state?
Foster
Describe the facts of Marshall.
Woman forced to retire 5 years earlier than men, did she have a claim under an EEC directive? Yes as Southhampton authority is an emanation of the state, so EEC directive has vertical effect.
What are the 3 questions that must be asked to ascertain DE from a directive?
- CPU
- Implementation date passed
- State emanation
