Direct effect

Question 1

Van Gend en Loos

Answer 1

• 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

Question 2

Van Gend en Loos 3 conditions

Answer 2

• clear
• unconditional, not allowing any reservations
• not dependent on further implementation

Question 3

Van Duyn - provisions which allow reservations

Answer 3

still have direct effect

Question 4

Reyness

Answer 4

The provision must impose an obligation to attain a precise result and provisions which fulfill this requirement are directly effective.

Question 5

Treaty provisions: Van Gend en Loos

Answer 5

They have direct effect

Question 6

Treaty provisions: Defrenne

Answer 6

Applicable in any kind of legal relationship, vertical, reverse vertical and horizontal.

Question 7

Treaty provisions: Foster v British Gas

Answer 7

-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

Question 8

Treaty provisions: Walrave and Bosman

Answer 8

Private state-like organizations such as sports federations are included in the application of horizontal direct effect

Question 9

Regulations: Art 288 TFEU

Answer 9

A regulation shall be binding in its entirety and directly applicable in all Member States

Question 10

Regulations: Directly applicable = directly effective?

Answer 10

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.

Question 11

Regulations: SGB Belgium

Answer 11

The provisions of regulations generally have immediate direct effect in the national legal system.

Question 12

Regulations: Tele 2 Polska (2011)

Answer 12

The direct effect of regulations is generally presumed and need not to be specifically examined

Question 13

Regulations: Monte Arcosu (2001)

Answer 13

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.

Question 14

Decisions: Pupino (2005)

Answer 14

The Court of Justice held that decisions can be enforced by national courts

Question 15

Decisions: Foselev (2008)

Answer 15

Decisions addressed to Member States can produce direct effect, provided thy are sufficiently clear, precise and unconditional.

Question 16

Decisions: Carp

Answer 16

A decision cannot be invoked between individuals, only between an individual and the state

Question 17

Directives: Van Duyn

Answer 17

• sufficiently clear and precise, unconditional an the time limit for the state to implement the directive must have passed.
• vertically effective

Question 18

Defrenne v Sabena (1976)

Answer 18

The directive must give clear, identifiable rights to the individuals.

Question 19

Ministero Publico v Ratti

Answer 19

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.

Question 20

Marshall v Southampton

Answer 20

A directive can only be enforced against the state.

Question 21

NUT v The Governing Body of St Mary’s Church of England

Answer 21

The state definition must be broadly interpreted so it includes public bodies, and even public schools or other educational establishments.

Question 22

Foster v British Gas

Answer 22

‘Public body’

• subject to the control of the State
• must have special powers given by the State

Question 23

Dominguez (2012)

Answer 23

-reapplied Foster and stated that public bodies include public hospitals and fully-owned public companies.

Question 24

Rolls Royce v Doughty

Answer 24

Although publicly owned, it did not constitute to state because it did not conform to the requirements laid down in Foster v British Gas

Question 25

CIA Security (1996)

Answer 25

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.

Question 26

Mangold (2005)

Answer 26

General principles of law are horizontally applicable