Direct Effect

Question 1

Van Gend en Loos

Answer 1

Dutch authorities charging higher import duties from 3-8%. Van Gend en Loos argued that this breached EEC treaty

Question for courts: can an individual rely on treaty 12 of the EEC treaty against the Dutch court

Judgement: Article 12 EEC treaty creates provisions on individual rights that national courts must protect

Question 2

Costa v ENEL

Answer 2

When EU law conflicts with national law, EU must take precedent (principle of supremacy of EU law)

Question 3

Handelgesellschaft

Answer 3

EU law takes precedence over national constitution (including fundamental rights provided by them)

Question 4

Simenthal

Answer 4

A national court must not wait for a national measure which conflicted with EU law to be set aside by a national authority. Direct effect occurs irrespective of whether the national law was enacted (either before or after the EU treaty)

Question 5

Cooperativa Agricola Zootecnica

Answer 5

Requirements for direct effect

1) Treaty provision is clear and precise to give rise to an identifiable individual right
2) Unconditional

Question 6

Lutticke

Answer 6

Once the deadline has passed, then at this point provisions became directly effective

Question 7

Defrenne v Sabena

Answer 7

Can have direct effect against private parties (Horizontal direct effect)

Question 8

Franz Grade v Finanzamt Traunsteain/ Politi S.A.S v Ministry of Finance of Italian Republic

Answer 8

Regulations are directly applicable and therefore by virtue of their nature capable of producing direct effect

Question 9

Antonio Munoz y Cia Sa v Frumer

Answer 9

Regulations can also have horizontal direct effect

Question 10

Azienda Agricola

Answer 10

EU held that provisions of 2 regulations did not have direct effect because they were not clear and certain

Question 11

Grimaldi

Answer 11

Recommendations do not have direct effect because they are not forms of legally binding law

Question 12

Van Duyn v Home Office

Answer 12

ECJ: directives have direct effect as long as they satisfy the Van Gend en Loos criteria; also have vertical direct effect

Question 13

Ratti

Answer 13

Implementation must have passed - ‘a member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations the directive entail

Question 14

VNO v Inspecteur de Invoerrechten en Accijinzen

Answer 14

a directive could have direct effect where a MS has only partially or incorrectly implemented it

Question 15

Marks and Spencer

Answer 15

Correctly implemented but national measures not being applied by national authorities in a away that achieves the results sought by it

Question 16

Marshall v Southampton and South West Area Health Authority

Answer 16

ECJ: held that a person could not rely on a directive against a private entity. But a person could rely on a directive against the state regardless of the capacity the state was acting in (e.g. as an employer)

Question 17

Foster v British Gas PlC

Answer 17

Test for an emanation of the state:

1) Bi Partitie test
2) Tri partite Test

Question 18

Salamander

Answer 18

ECJ: Even if it was under the control of the state, it did not provide a public service under measures adopted by the state it did not have special powers

Question 19

Reiser Internationale

Answer 19

An Austrian Company which had been incorporated as a private company but the sole shareholder was the Austrian state. It had been granted a contractual licence by the state making it responsible for constructing and maintaining Austrian motorways and expressways and allowed it to levy tolls. The company was held to be an emanation of the state

Question 20

Portgas v Ministerio da Agricultura

Answer 20

Portgas is a private undertaking which has the exclusive right to distribute gas under a concession granted by a contract wight he Portuguese government.

Not only individuals can rely on directives against a member state, authorities can rely on directives against organs of the state (if in this case Portgas satisfied the tripartite test)

ECJ: not clear whether Portgas satisfied the tripartite test (whilst Portgas did hold a public service concession, it is not clear that it was under state control). Also, the mere fact that Portgas enjoyed certain special exclusive rights under its concession contract did not mean that it had special powers. ECJ elect to national courts to established whether the test has been satisfied

Question 21

Berlusconi

Answer 21

Directives could not give direct effect to set aside the more lenient criminal penalties imposed my italian law