Direct Effect Flashcards
Which case established Direct Effect?
Van Gend En Loos
Which case established EU supremacy?
Costa v ENEL
Which case confirmed Costa v ENEL?
Simmenthal
What is direct applicability?
Direct applicability refers to EU legislation that is automatically enforced in all MS when passed by the EU.
What is direct effect?
Rights granted by EU provisions on individuals who may enforce them against the State.
What are the two/three conditions given in Van Gend En Loos for a provision to be directly effective?
Clear, precise and unconditional
Which Article describes the nature of regulations, directives, decisions, recommendations and opinions?
Article 288 TFEU
Are directives directly applicable?
No
How did Cooperative Agricola Zootecnica clarify the three criteria given in Van Gend En Loos for a provision to be directly effective?
It said a provision that should be clear and precise as to its rights which it grants to individuals. It also said that unconditionality referred to a provision requiring no more than implementation in any way the MS saw fit.
The case of Van Duyn had what to say about the Van Gend En Loos criteria?
If the CJ has to interpret a provision or limit a derogation that does not make the provision or derogation unclear or imprecise.
The case of Becker has also qualified the VGL criteria. What did the case say?
That conditions which ensure a provision grants an individual legal right and ensures it is correctly applied without abuse does not take away the provision’s direct effect.
Francovich also added judgment to the VGL criteria. What did it say?
That because a directive granted Member States an option as to implementation did not take away the direct effect of a provision legally complete.
The case of Defrenne v SABENA (No 2) illustrates direct effect in action. What was Miss Defrenne claiming and under which provision?
Defrenne was claiming under Art 157 TFEU that she was being discriminated against on the basis of her sex by not being paid equal pay for equal work with regard to her male colleagues.
The CJ held in Defrenne v SABENA (No 2) that Miss Defrenne was directly discriminated against on the basis of her sex. What did the CJ add in obiter that Art 157 TFEU could not have protected against?
Indirect discrimination such as work conditions etc which it was not sufficiently clear and precise how it would protect.
What was unclear about Art 6 of the Equal Treatment Directive under which Von Colson based her claim?
Art 6 said that Member States should incorporate ‘all measures that are necessary’ to apply equal treatment. The West German Court was unsure whether this meant Von Colson should be given the job she applied for in the male prison or whether damages were sufficient.
How were Francovich and Bonafaci unable to enforce the unimplemented directive in their claim?
The case was about staff wage protection in case of insolvency of their employer. The directive was not sufficiently clear about who should provide the guarantee, whether it was public or private.
Van Gend En Loos concerned an Article 12, as it was then, now Art 30. What did Art 12 exclude?
Any new or increased customs duties.
Van Gend En Loos specifically concerned a negative obligation on Member States. Which case extended direct effect to cover positive obligations?
Alfons Lutticke
Which Article did the case of Alfons Lutticke concern?
Article 110 (ex Article 95) which at the time contained a positive obligation on Member States to remove any discriminatory internal taxation measures by 1 Jan 1962.
Which case confirms that direct effect is available for horizontal actions based in Treaty articles?
Defrenne v SABENA (No 2)
For which types of legislation is a horizontal action not available?
Directives
Which cases established and confirmed that directives are not directly effective in horizontal actions?
Established by Marshall v Southampton and South West Area Health Authority (Teaching) (No 1). Confirmed by Dori (Faccini).
Why has the CJ held that directives cannot be given direct effect in horizontal actions?
Because directives are not addressed to individuals, but are addressed to the state.
The UK and health authority in Marshall argued that she could not rely on an unimplemented directive against another individual. Why then did Marshall win her case?
The CJ held the Southampton Health Authority to be an emanation of the state. It did not matter that they were acting as her employer.
Which case establishes that a directive only becomes directly effective once the implementation date has passed?
Ratti
Which case establishes that a Member State cannot rely on a directive if it has failed to implement by the deadline?
Ratti
In which case did the ruling given in Ratti also apply to a partially or incorrectly implemented directive?
VNO
In which case did the CJ rule that an individual may rely on a directive that has been implemented correctly but has been improperly applied
M&S v Commissioners of Customs and Excise
What is said to be the injustice of Marshall v SWAHA? Which case illustrates this?
Employees are allowed to base their claim in a directive if their employer is a public body or emanation of the state, but are not allowed to make claims against their employer if they are a private body even if there is a connection with the State (Doughty v Rolls Royce).
Which case tells us tax authorities are an emanation of the State?
Becker
Which case tells us that local and regional authorities are emanations of the State?
Fratelli Constanzo Spa
Which case tells an independent police force is an emanation of the State?
Johnston v Chief Constable of RUC
Which British case developed the bipartite and tripartite tests for deducing whether organisations were emanations of the state?
Foster v British Gas
What are the criteria for the bipartite test?
Is the organisation under state control or authority OR does the organisation have special powers
What are the criteria for the tripartite test?
Is the organisation under state control or authority, does it have special powers, AND is it responsible for providing a public service
What facts do the cases of Marshall and Foster have in common?
They are both cases concerning different retirement ages of men and women, pensions, and Equal Treatment Directive.
Did the Court apply the bipartite or tripartite tests in Doughty v Rolls Royce and Griffin v South West Water Services Ltd? In which case was there found to be an emanation of the state.
Tripartite. South West Water fulfilled all the criteria under the test.
Which test was applied in the case of National Union of Teachers v Governing Body of St. Mary’s Church of England School?
Bipartite test. The school was providing a public service by entering the state school system and accepting education grants, and the local education authority had sufficient control over the school.
When did the CJ first visit the bipartite and tripartite tests?
Kampelmann v Landschaftsverband Westfalen-Lippe
Which test, bipartite or tripartite, do the UK courts apply first? What do the CJ do instead?
The UK courts apply the tripartite test first. The CJ, however, just apply the test which seems more relevant.
In which case were two limited liability companies providing work for the disabled found to be emanations of the state as they were owned by local authorities?
Sozialhilfeverband Rohrbach v Arbeiterkammer Oberosterreich
Was Una Film City Revue an emanation of state? Why or why not?
No, distributing advertising films to cinemas was not a public service and the organisation had no special powers.
Reiser was a construction company found to be an emanation of the state. Why?
It fulfilled all three criteria of the tripartite test. It had government contracts in construction of highways etc and was heavily controlled by the State.
How has the case of R(Wells) v Secretary of State for Transport, Local Govt and Regions said to have undermined the impossibility of seeking a horizontal claim using direct effect?
Ms Wells took her claim out against the Government for not having carried out environmental checks when a private company began work in a quarry near her home. While her claim was against the Government, the effect was felt by the quarry owners.
Which case has supported the judgment in Wells?
Arcor AG & Co KG v Germany
