Direct effect Flashcards
Van Gend en Loos
- The Community constitutes a new legal order of international law for the benefit of which States have limited their sovereign rights.
- direct effect means that an EU provision becomes the immediate source of law for the national court and administrator
Van Gend en Loos 3 conditions
- clear
- unconditional, not allowing any reservations
- not dependent on further implementation
Van Duyn - provisions which allow reservations
still have direct effect
Reyness
The provision must impose an obligation to attain a precise result and provisions which fulfill this requirement are directly effective.
Treaty provisions: Van Gend en Loos
They have direct effect
Treaty provisions: Defrenne
Applicable in any kind of legal relationship, vertical, reverse vertical and horizontal.
Treaty provisions: Foster v British Gas
-it depends on the type of the provision whether it is horizontally or vertically applicable. For example, Art 101 and 102 TFEU referring to competition and ‘behavior’ of companies are horizontally applicable, but Art 34 and 35 TFEU, referring to the freedom of goods ensured by Member States is vertically effective
Treaty provisions: Walrave and Bosman
Private state-like organizations such as sports federations are included in the application of horizontal direct effect
Regulations: Art 288 TFEU
A regulation shall be binding in its entirety and directly applicable in all Member States
Regulations: Directly applicable = directly effective?
Politi (1971): The court equated direct effect with directly applicable,
However, later, in Defrenne v Sabena (1976) and recently argued in Roman Angonese (2000): direct applicability means that unless expressly requested by the regulation itself, no implementing act is necessary -> Therefore, the 2 concepts are different.
Regulations: SGB Belgium
The provisions of regulations generally have immediate direct effect in the national legal system.
Regulations: Tele 2 Polska (2011)
The direct effect of regulations is generally presumed and need not to be specifically examined
Regulations: Monte Arcosu (2001)
If the regulation is so abstract and conditional on further implementation, that it contains no executable rules for national courts to apply, it cannot be directly effective.
Decisions: Pupino (2005)
The Court of Justice held that decisions can be enforced by national courts
Decisions: Foselev (2008)
Decisions addressed to Member States can produce direct effect, provided thy are sufficiently clear, precise and unconditional.
Decisions: Carp
A decision cannot be invoked between individuals, only between an individual and the state
Directives: Van Duyn
- sufficiently clear and precise, unconditional an the time limit for the state to implement the directive must have passed.
- vertically effective
Defrenne v Sabena (1976)
The directive must give clear, identifiable rights to the individuals.
Ministero Publico v Ratti
The time limit that the state had to implement a directive must have lapsed
And
Failure to implement the directive cannot be invoked by the state against an individual.
Marshall v Southampton
A directive can only be enforced against the state.
NUT v The Governing Body of St Mary’s Church of England
The state definition must be broadly interpreted so it includes public bodies, and even public schools or other educational establishments.
Foster v British Gas
‘Public body’
- subject to the control of the State
- must have special powers given by the State
Dominguez (2012)
-reapplied Foster and stated that public bodies include public hospitals and fully-owned public companies.
Rolls Royce v Doughty
Although publicly owned, it did not constitute to state because it did not conform to the requirements laid down in Foster v British Gas
CIA Security (1996)
The Court let the failure of the state to implement a directive to spill into private relations and affect individuals who war unaware of the state’s failure.
Mangold (2005)
General principles of law are horizontally applicable
