Direct Effect

Question 1

Which case established Direct Effect?

Answer 1

Van Gend En Loos

Question 2

Which case established EU supremacy?

Answer 2

Costa v ENEL

Question 3

Which case confirmed Costa v ENEL?

Answer 3

Simmenthal

Question 4

What is direct applicability?

Answer 4

Direct applicability refers to EU legislation that is automatically enforced in all MS when passed by the EU.

Question 5

What is direct effect?

Answer 5

Rights granted by EU provisions on individuals who may enforce them against the State.

Question 6

What are the two/three conditions given in Van Gend En Loos for a provision to be directly effective?

Answer 6

Clear, precise and unconditional

Question 7

Which Article describes the nature of regulations, directives, decisions, recommendations and opinions?

Answer 7

Article 288 TFEU

Question 8

Are directives directly applicable?

Answer 8

No

Question 9

How did Cooperative Agricola Zootecnica clarify the three criteria given in Van Gend En Loos for a provision to be directly effective?

Answer 9

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.

Question 10

The case of Van Duyn had what to say about the Van Gend En Loos criteria?

Answer 10

If the CJ has to interpret a provision or limit a derogation that does not make the provision or derogation unclear or imprecise.

Question 11

The case of Becker has also qualified the VGL criteria. What did the case say?

Answer 11

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.

Question 12

Francovich also added judgment to the VGL criteria. What did it say?

Answer 12

That because a directive granted Member States an option as to implementation did not take away the direct effect of a provision legally complete.

Question 13

The case of Defrenne v SABENA (No 2) illustrates direct effect in action. What was Miss Defrenne claiming and under which provision?

Answer 13

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.

Question 14

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?

Answer 14

Indirect discrimination such as work conditions etc which it was not sufficiently clear and precise how it would protect.

Question 15

What was unclear about Art 6 of the Equal Treatment Directive under which Von Colson based her claim?

Answer 15

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.

Question 16

How were Francovich and Bonafaci unable to enforce the unimplemented directive in their claim?

Answer 16

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.

Question 17

Van Gend En Loos concerned an Article 12, as it was then, now Art 30. What did Art 12 exclude?

Answer 17

Any new or increased customs duties.

Question 18

Van Gend En Loos specifically concerned a negative obligation on Member States. Which case extended direct effect to cover positive obligations?

Answer 18

Alfons Lutticke

Question 19

Which Article did the case of Alfons Lutticke concern?

Answer 19

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.

Question 20

Which case confirms that direct effect is available for horizontal actions based in Treaty articles?

Answer 20

Defrenne v SABENA (No 2)

Question 21

For which types of legislation is a horizontal action not available?

Answer 21

Directives

Question 22

Which cases established and confirmed that directives are not directly effective in horizontal actions?

Answer 22

Established by Marshall v Southampton and South West Area Health Authority (Teaching) (No 1). Confirmed by Dori (Faccini).

Question 23

Why has the CJ held that directives cannot be given direct effect in horizontal actions?

Answer 23

Because directives are not addressed to individuals, but are addressed to the state.

Question 24

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?

Answer 24

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.

Question 25

Which case establishes that a directive only becomes directly effective once the implementation date has passed?

Answer 25

Ratti

Question 26

Which case establishes that a Member State cannot rely on a directive if it has failed to implement by the deadline?

Answer 26

Ratti

Question 27

In which case did the ruling given in Ratti also apply to a partially or incorrectly implemented directive?

Answer 27

VNO

Question 28

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

Answer 28

M&S v Commissioners of Customs and Excise

Question 29

What is said to be the injustice of Marshall v SWAHA? Which case illustrates this?

Answer 29

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).

Question 30

Which case tells us tax authorities are an emanation of the State?

Answer 30

Becker

Question 31

Which case tells us that local and regional authorities are emanations of the State?

Answer 31

Fratelli Constanzo Spa

Question 32

Which case tells an independent police force is an emanation of the State?

Answer 32

Johnston v Chief Constable of RUC

Question 33

Which British case developed the bipartite and tripartite tests for deducing whether organisations were emanations of the state?

Answer 33

Foster v British Gas

Question 34

What are the criteria for the bipartite test?

Answer 34

Is the organisation under state control or authority OR does the organisation have special powers

Question 35

What are the criteria for the tripartite test?

Answer 35

Is the organisation under state control or authority, does it have special powers, AND is it responsible for providing a public service

Question 36

What facts do the cases of Marshall and Foster have in common?

Answer 36

They are both cases concerning different retirement ages of men and women, pensions, and Equal Treatment Directive.

Question 37

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.

Answer 37

Tripartite. South West Water fulfilled all the criteria under the test.

Question 38

Which test was applied in the case of National Union of Teachers v Governing Body of St. Mary’s Church of England School?

Answer 38

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.

Question 39

When did the CJ first visit the bipartite and tripartite tests?

Answer 39

Kampelmann v Landschaftsverband Westfalen-Lippe

Question 40

Which test, bipartite or tripartite, do the UK courts apply first? What do the CJ do instead?

Answer 40

The UK courts apply the tripartite test first. The CJ, however, just apply the test which seems more relevant.

Question 41

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?

Answer 41

Sozialhilfeverband Rohrbach v Arbeiterkammer Oberosterreich

Question 42

Was Una Film City Revue an emanation of state? Why or why not?

Answer 42

No, distributing advertising films to cinemas was not a public service and the organisation had no special powers.

Question 43

Reiser was a construction company found to be an emanation of the state. Why?

Answer 43

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.

Question 44

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?

Answer 44

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.

Question 45

Which case has supported the judgment in Wells?

Answer 45

Arcor AG & Co KG v Germany