Direct Effect Flashcards
Van Gend en Loos
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
Costa v ENEL
When EU law conflicts with national law, EU must take precedent (principle of supremacy of EU law)
Handelgesellschaft
EU law takes precedence over national constitution (including fundamental rights provided by them)
Simenthal
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)
Cooperativa Agricola Zootecnica
Requirements for direct effect
1) Treaty provision is clear and precise to give rise to an identifiable individual right
2) Unconditional
Lutticke
Once the deadline has passed, then at this point provisions became directly effective
Defrenne v Sabena
Can have direct effect against private parties (Horizontal direct effect)
Franz Grade v Finanzamt Traunsteain/ Politi S.A.S v Ministry of Finance of Italian Republic
Regulations are directly applicable and therefore by virtue of their nature capable of producing direct effect
Antonio Munoz y Cia Sa v Frumer
Regulations can also have horizontal direct effect
Azienda Agricola
EU held that provisions of 2 regulations did not have direct effect because they were not clear and certain
Grimaldi
Recommendations do not have direct effect because they are not forms of legally binding law
Van Duyn v Home Office
ECJ: directives have direct effect as long as they satisfy the Van Gend en Loos criteria; also have vertical direct effect
Ratti
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
VNO v Inspecteur de Invoerrechten en Accijinzen
a directive could have direct effect where a MS has only partially or incorrectly implemented it
Marks and Spencer
Correctly implemented but national measures not being applied by national authorities in a away that achieves the results sought by it
Marshall v Southampton and South West Area Health Authority
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)
Foster v British Gas PlC
Test for an emanation of the state:
1) Bi Partitie test
2) Tri partite Test
Salamander
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
Reiser Internationale
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
Portgas v Ministerio da Agricultura
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
Berlusconi
Directives could not give direct effect to set aside the more lenient criminal penalties imposed my italian law
