Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

EULAW1 > DIRECT EFFECT > Flashcards

DIRECT EFFECT Flashcards

1
Q

overview of part 1 introduction?

A

Part I: Introduction

Definition of direct effect

Where does direct effect fit in?

Importance of direct effect

Relationship between direct effect and supremacy of EU law

Direct effect vs. direct applicability

Direct effect after Brexit?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Part I.1: Definition of direct effect - definition of direct effect?

A

Definition of direct effect

Definition: EU law has direct effect when individuals (= you) can enforce their rights created by EU law in national courts

-Important constitutional principle of EU law

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Part I.1: Definition of direct effect - purpose of direct effect?Part I.1: Definition of direct effect

A

Purpose :there so individs can enforce eu law and protect their rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Part I.1: Definition of direct effect - academic debate?

A

Academic debate:
Is an EU right a pre-condition for direct effect?
Is ‘direct effect’ about enforcement of individual rights or ensuring effectiveness of EU provisions, whether or not they create individual rights? [further reading]

academic debate? - leave for further reading

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Part I.2: Where does direct effect fit in?

A
  1. The wider picture – where does direct effect “fit in”?

it basically ask q- How does EU law enter the national legal system?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Part I.3: Importance direct effect - what about this?

A

connected to Supremacy of EU law - under this if National law in conflict with your EU right must be disapplied [Simmenthal]

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Part I.3: Importance direct effect -why does direct effect come in?

A

Useless if you cannot enforce your EU right in national courts = this is where direct effect comes in

YOU NEED TO BE ABLE TO ENFORCE EU LAW IN NATIONAL COURTS SO THEN NATION COURTS CAN DISAPPLY

DIRECT EFFECT IS FIRST STEP AND THEN U PUT SUPREMACY ON TOP OF IT

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Part I.3: Importance direct effect - how do we think about this in wider terms? for the importnace

A
  1. Importance of direct effect

EU rights can be enforced in national courts

  • Coming together of national and EU legal order [TFEU preamble: ‘ever closer Union’] - uk and eu legal order come closer together bc direct effect
  • Closer relationship between national courts and CJEU
  • Role of individuals in enforcing EU law!
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Part I.3: Importance direct effect - e.g of ever closer union?

A

e.g so she enforce in uk courts but they have no idea but then they refer to cjeu how to be interpreted AND COULD BE INTERPRETED BC A COULD RELY ON NATIONAL CTS- EVER CLOSER UNION AND INDIVIDUALS CAN ENFORCE EU LAW

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Part I.3: Importance direct effect -practical consequences of direct effect?

A

Practical consequences of direct effect (examples)

-ability to challenge an EU law-incompatible charge in national courts (van Gend)
-ability to challenge an EU law-incompatible refusal to
–
issue a work permit in the UK in UK courts (van Duyn)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

what did martin do?s

A

skipped 2 next slides

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Part I.6: Direct effect post-Brexit?

A
  1. Direct effect post-Brexit?

EU law creates rights for individuals. What will happen to those rights after Brexit?

They cease to exist. - SO DONT NEED DIRECT EFFECT ANYMORE

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

but what will happen?

A

But see European Union (Withdrawal) Bill clauses 3 and 4: Some of these rights will become (retained) English rights! - what does happen though

you will have rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

most important bit of intro?

A

DEFINITION PART!!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Part II: Direct effect explored-what are we going to look at now?

A

Part II: Direct effect explored

Vertical and horizontal direct effect

Origin of direct effect

Conditions of direct effect

when u have prob q - START WITH YOUR EU RIGHT
THEN DEFINITION OF DIRECT EFFECT - BUT WANT TO ESTABLISH AGAINST WHOM U WILL ENFORCE UR RIGHT - THINK ABOUT VERTICAL AND DIRECT EFFECT?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

what about vertical and horizontal direct effect?

A
  1. Vertical and horizontal direct effect

vertical - Individual can enforce an EU right in national proceedings against the state

horizontal - Individual can enforce an EU right in national proceedings against another private party

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

why is this disitnc relevant?

A

we will see not all eu measure possess horitzontal direct effect - that is why?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Part II.2: Origin of direct effect - what about the origin of direct effect and what case was it born in

A
  1. Origin of direct effect

Origin: CJEU case law; no formal basis in the Treaties

Case 26/62, van Gend - the doctrine of direct effect is born!

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Part II.2: Origin of direct effect -facts on ven gend?

A

Dutch government increased an import duty on chemicals. A Dutch company (van Gend) had to pay these duties for their imports from Germany. In the Dutch courts, van Gend wanted to rely on art. 30 TFEU. Van Gend argued that the Dutch government was in breach of art. 30 TFEU.

Q: could he rely on art 30 tfeu ? is it possible?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Part II.2: Origin of direct effect -held in van gend?

A

‘Independently of the legislation of the Member States’, EU law is intended to confer rights on individuals
Remember: deviation from orthodox international law [Topic 4: supremacy]

  • so ct saying independently of this - EU LAW HAS DIRECT EFFECT - SO THIS IS DIFF FROM INT LAW THIS IS SPECIAL

EU right at issue: Right not to be charged a customs duty (art. 30 TFEU) - CT SEES OBLIGATION IMPOSED ON MS AND OTHER SIDE EU FOR INDIVID WHICH IS RIGHT NOT BE CHARGED SO VAN GEND COULD RELY ON ART 30

Treaty can impose obligations on MS, and that can correspond to an individual‘s right

Result: van Gend can rely on art. 30 TFEU in the Dutch courts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Part II.2: Origin of direct effect - take home message of Case 26/62, van Gend [contd.]

A

van Gend established that Treaty provisions (1) can create individual rights and (2) are capable of having vertical direct effect

  • HE WANTED TO ENFORCE HIS RIGHTS AGAINST STATE
22
Q

Part II.2: Origin of direct effect - what are the implications? of take home?

A

Implications: CJEU developed private enforcement of EU law through direct effect  brings EU closer to its citizens!

Genius idea because EU law is enforced by millions of individuals

direct effect not in treaties - the only enforce mech in text is that commision can sue non compliant ms - why this here been enforced is quite signficant if think about effectiveness of eu law

23
Q

Part II.2: Origin of direct effect - what are the implications? what about this?

A

it may be effective but it does not mean that ms have agreed to it so cts had to justify

24
Q

Part II.2: Origin of direct effect - reasons for ct justifying

A

Case 26/62, van Gend [contd.]

What reasons did the Court give in van Gend to justify vertical direct effect of Treaty provisions?

  1. Functioning of EU is of direct concern to private parties - NOT AS GOOD ARG COS DONT SHOW AS SPECIAL
  2. Preliminary reference procedure [art. 267 TFEU] presupposes that EU law can be invoked by nationals in national courts - THIS GOOD ARG - WHEN HAPEPN WEHN INDIVID TELL NATIONAL CTS TO LOOK AT EU LAW- PRESUPPOSES THAT IT IS POSSIBLE AS WHY IT IS GOOD ARG - AND PP IS SPECIAL FOR EU LAW
  3. Direct effect = effective supervision of EU law due to “vigilance of individuals concerned to protect their [EU] rights”
    = effectiveness (teleological) reasoning - YES IS CORRECT BUT REAL Q IS DID MS AGREED TO IT?
25
Q

Part II.2: Origin of direct effect - but to these reasoningS?

A

BUT: Should the CJEU create entire EU doctrines outside the text of the Treaty?

Wider context: Legitimate purposive reasoning vs. politically driven judicial activism

26
Q

Part II.2: Origin of direct effect - who werent convinced by reasonings?

A

Case 26/62, van Gend [contd.]

Not all are convinced by the Court’s arguments:

now art 30 was art 12

SEE CONTROVERSILA HE SPOKE ENFORCEMENT MECHANAMISM IS ENFORCEMENT PROCEEDINGS THAT COMMISION CAN INTIAITE - ACTUALLY WHAT GOVERNMENT ARGUED IN VAN GEND

27
Q

Part II.3: Conditions of direct effect - what are the conditions

A
  1. Conditions of direct effect

NEED TO UDNERSTAND THAT NOT ALL EU AUTOMATICALLY HAS DIRECT EFFECT - VEN GEND SAID CERTAIN COND NEED TO BE FULFFILED TO PLEASE MS SO STARTTPING POS

  • Starting point: Individual right created by a provision of EU law (e.g. art. 30 TFEU)
  • Then: Legal test(!) = the van Gend criteria = the EU right must meet these criteria
  1. Sufficiently clear
  2. Precise
  3. Unconditional

IF NOT MET CANNOT RELY ON EU LAW IN NATIONAL CTS

28
Q

ACTIVITY?

A

Activity: Do these statements satisfy the can Gend criteria (sufficiently clear, precise and unconditional)?:

  1. ‘Custom duties on imports and exports […] shall be prohibited between Member States’ [art. 30 TFEU] - CANT DO IT “PROHIBITED”
  2. ‘A Member State may issue 200 licences, as it sees fit, amongst traders of volatile chemicals’ -
  3. ‘If a Member State feels that there has been a breach of competition law it may require contracts between individuals to be re-negotiated. It shall only exercise this power after consultation with the Commission’ - IT DOES -

WHY DO U THINK THAT FULFILLS COND IT SAYS “SHALL” TRICKY BC THIS POWER CONDITIONAL AND 1ST SENTENCE MAY - MAY OR MAY NOT IF DOES EXCERICES - WHENEBER U HAVE THIS Q NOT UNCONDITIONAL BASICALLY

4‘Notice of cancellation must be given within a period of not less than seven days’

  • SUFFICENTLY PRECISE UNCOND? - YES MUST BE ATLEAST 7 DAYS -CT SAID MIMINUM PROTECTION IS CLEAR = 7 DAYS MUST BE ABLE TO GIVE NOTICE OF CANCELLATION - IF U READ STAEMENT MUSNT GO LOWER THAN 7 - WEHNEEVR HAVE MINIMAL RIGHT = CONDITIONAL, PRECISE AND SUFFICENTLY CLEAR - CASE FOR THIS

PROBLEM Q -MUST ALWAYS SAY WHETHER THESE COND MET

29
Q

overview of 1st and what looking at next?

A

1ST HALF - WE START WITH EU RIGHT - E.G RIGHT TO GET PAID - Q DOES RIGHT HAVE IRECT EFFECT - ASSESS BY TESTING AGAINST VEN GEND CRITERIA AND WHERE DOES IT COME FROM ? RELEVANT IN CASE OF DIRECTIVES

Part III: Direct effect of Treaty articles

Part IV: Direct effect of Regulations

Part V: Direct effect of Directives

Part VI: Alternatives to the rule that directives do not have horizontal direct effect

30
Q

overview 3 2 5?

A

Parts III to V: To which types of EU law does direct effect apply? so where doeS YOUR EU RIGHT COME FROM

  • Treaty articles
    [Part III]

-Regulations, art. 288 TFEU
[Part IV]

-Directives, art. 288 TFEU
[Part V]

-General principles of EU law
[Part VI.4]

-Charter of Fundamental Rights
[Further reading]

-Decisions, art. 288 TFEU
[Further reading] - NOT RELEVANT FOR CTS

31
Q

Part III: Direct effect of Treaty articles

A

Part III: Direct effect of Treaty articles

Vertical direct effect: van Gend (as discussed above) - we know this

BUT CAN IT BE ALSO POSSINBLE IN HORITZONAL SCENARIO - AGAINST INDIVIDHorizontal direct effect of Treaty articles:
Case 43/75, Defrenne v. Sabena

  • PRIVATE AIRLINE AND SHE CLAIMED BREACH- PRIVATE BTW PRIVATE - FOR EQAUL PAY FOR EUAL WORK = RIGHT - CT SAID
32
Q

Part III: Direct effect of Treaty articles-what was held in Case 43/75, Defrenne v. Sabena??

A
  1. EU Right at issue: Equal pay for equal work (art. 157 TFEU) = her RIGHT

2.van Gend-criteria are met (+) - CRITERIA MET
‘Since [art. 157 TFEU] is mandatory in nature’, the principle of equal pay contained in that article also applies to contracts between individuals
[Criticism: the text of 157 TFEU only refers to MS]’

  • BAD REASON - WHY? THERES NO MENRION OF IDNIVIDS - THIS IS JUST BIND- WHY SHOULD THAT APPLY TO INDIVD DIRECTLY - BC MANDTORY IN NATURE? WHAT DOES THAT MEAN - ENFORE RIGHT AGAINST MS

ANY WAY RESULT IS
Result: art. 157 TFEU has horizontal direct effect
= it can be enforced in national courts against a private party (here: Sabena)

33
Q

Part III: Direct effect of Treaty articles-TAKE HOME MESSAGE FROM DEFRENE?

A

Treaty provisions are capable of having horizontal direct effect - HAVE A LOOK AT WORD CAPABLE AS NOT ALL TREATY PROVISION HAVE DIRECT EFFECT

CAPABLE BC U NEED RIGHT - IF NOT = NO DIRECT EFFECT
IF U HAVE RIGHT BUT DOESNT FUFLFILL VAN GEND = THATS IT N= NO

DEFREENE = MORE IN THEORY - FOR ART 157 IT WORKED

Important: Not all Treaty provisions actually have horizontal direct effect
Why? Because not all Treaty provisions contain an EU right or fulfil the van Gend-criteria - AS SAID ABOVE

SO U HAVE 2 WAYS DE CAN WORK ESTABLISHED

34
Q

Part IV: Direct effect of Regulations - what is the same true for?

A

Part IV: Direct effect of Regulations

Provisions in regulations are capable of having vertical and horizontal direct effect - REGULATIONS THAT DO EFFECT US HAVE HORIZONTAL E.G MISS FLY COS RAYN SCREWED UP U HAVE UR RIGHT - NOT VERY CONTROVERSIAL

35
Q

Part IV: Direct effect of Regulations - cases for this?

A

Case 34/73, Fratelli Variola – vertical case:
A regulation is ‘directly applicable in all MS’ (art. 288 TFEU). Therefore, ‘a Regulation has immediate effect and, consequently, operates to confer rights on private parties which the national courts have a duty to protect.’ [8]

Case C-253/00, Munoz – horizontal case:
The full effectiveness of the EU right contained in the Regulation requires that it must be possible to enforce that right by means of civil proceedings between two private parties. [30]

HIGHLY RELEVANT FOR THE EXAM

36
Q

Part V: Direct effect of Directives- recap of directives?

A

Part V: Direct effect of Directives

Recap: WHAT ARE DIRECTIVES? EU directives bind MS. They need implementation in the MS via national law (art. 288 TFEU). - SO IDEA IS U GIVE FLEX TO MS AND THEN MS INTEGREATES DIRECTIVE INTO NATIONAL LAW SO IT FITS WELL INTO INTERNAIL LEGAL ORDER - U CAN SEE HERE IF DO IMPLEMENTATION CORRECTLY THEN U HAVE DIRECTIVE - DIRECTIVE SAID U NEED TO IMPLEMENT - IF ALREADY AHVE IN NATIONAL LAW DONT NEED DIRECTIVE

Case 8/81, Becker [19]: If a directive is correctly implemented, national law “mirrors” EU law and an individual can rely on national law in court  direct effect of directive not needed!

37
Q

Part V: Direct effect of Directives- so when does q of direct effect of directives arise?

A

So when does the question of direct effect of Directives arise?
In case of unimplemented or incorrectly implemented Directives

38
Q
  1. Vertical direct effect of Directives WHAT ABOUT THIS?
A

Case 41/74, van Duyn v. Home Office
FACTS: UK Home office (= state body) refused Ms. van Duyn permission to enter the UK to take up employment as a secretary with Scientology. Ms. van Duyn challenged this decision on the grounds that it breached Directive 64/221/EEC. Can she rely on the Directive in UK courts?

TAKE HOME : Provisions in Directives are capable of having vertical direct effect.

this fullfils ven gend critera- AND UNCIOTNAL - HAS TO BE IMPLEMENTED SO WHAT HAS TO BE UNCON IS RIGHT ITSELF DONT FOCUS ON DIRETIVE FOCUS ON THE RIGHT AND IN THIS CASE SAID WAS UNCONDITIONAL

39
Q
  1. Vertical direct effect of Directives - REASONINGS?
A

Case 41/74, van Duyn v. Home Office [contd.]

HELD:

What reasons did the Court give?
1. Preliminary reference procedure [art. 267 TFEU] presupposes that EU law can be invoked by nationals in national courts [12]

  1. Direct effect = effective enforcement of EU law [12]
    effectiveness reasoning

SO WHAT HAPPENED NEXT?

40
Q

Part V.1: Vertical direct effect of Directives-what happened next after reasonings?

A

BUT: French & German courts refused to follow CJEU at first - NOT GONNA IMPLEMENT COS BELEIVED INCORRECT INTERP OF EU LAW - DIDNT BELIEVE IN DIRECT EFFECT

WHY?
1. Arg.: Direct effect of directives undermines distinction between Regulations and Directives

REGULATION AUTOMATICALLY PART OF MS - NOW WE HAVE U DIRECTIVE - HOW DO DIRECTIVES ENTER LEGAL ORDER - BINDING BUT LEAVE NATIONAL AUTH CHOICE OF FORM ETC AND METHODS WHICH IS WHY DIRECTIVES NEED TO BE IMPLEMENTED- THEN IMPLEMENTATION AHPPENS AND THAT IS NATIONAL LAW.

SAYING THAT NOT INTERP ANYMORE

  1. Arg.: Art. 288 TFEU grants discretion to MS in how to implement directives. This discretion is undermined if individuals can bypass national law and directly rely on Directive.
    - FRENCH AND GERMAN CT SAID

The CJEU listened….and changed the reasons for vertical direct effect of directives

41
Q

Part V.1: Vertical direct effect of Directives- RATTI?

A

CAME UP WITH AN ESTOPPEL REASONING - MS SHOULD HAVE IMPLEEMTNED DIREDCITVE, IF THEY DID THAT INIVID COULD RELY ON COULD OF RELIED ON NATIONAL LAW - SO MS HAVE COMMITED WRONG BY NOT IMPLEMENETED DIRECTIVE AND THEREOFRE CANNOT RELY ON OWN WRONGDOING ON INDIVID

  • DIDNT DO IT- ESTOPPEL BECAUSE IT WAS UR DUTY TO IMPLEMETN- SO NOT FAIR FOR INVIDI

Case 148/78, Ratti - REASONING WHY CAN HAVE HORTIZONTAL AN VERTICAL DIRECT

ESTOPPEL CAN NOT JSUTIFIY HORTIZONTAL BUT CAN JSUTIFY VERTICAL

Implication(!): estoppel reasoning cannot justify horizontal direct effect of directives (because private parties are not at fault)

42
Q

Part V.1: Vertical direct effect of Directives- RATTI? also clarfied?

A

Ratti also clarified: Vertical direct effect of directives can only arise after the time limit for implementation has passed [43]

MS GIVEN 2 YEARS TO IMPLEMENT DIRECTIVES - ONYL AFTER TIME APPLIED CNA U THINK ABOTU DIRECT EFFECT IF MS HAVENT IMPLEMENTED - THIS IS ALWAYS A STEP

43
Q

Part V.1: Vertical direct effect of Directives-shows u how direct effect and supremacy work tofether

A

Case 148/78, Ratti

Direct effect and supremacy – how do they connect:

You can enforce an EU right arising from an EU directive in national proceedings against the state (= vertical direct effect). The national court must disapply any national law that does not comply with your EU right (= supremacy). [23-24]

NATIONAL CT MUST DISAPLY NATIONAL LAW THAT DOESNT COMPLY WITH UR RIGHT WHICH IS SUPREMACY DOCTIRNE - SO U ESTAB DIRECT EFFECT FIRST AND THEN SUPREMACY AFTER

44
Q

Part V.2: NO horizontal direct effect of Directives - what meant by this?

A

-2. NO horizontal direct effect of Directives

Case 152/84, Marshall

FACTSMs. Marshall was dismissed by public health authority because she had reached the authority’s retirement age for females (62) which was lower than the retirement age for men (65). UK legislation allowed this. Marshall argued that this constitutes discrimination under art. 5 Equal Treatment Directive. UK court asked the CJEU whether Marshall can rely on the EU directive.

SHE WANTED TO RELY ON EU COS UK DID NOT GIVE HER RIFHT

45
Q

Part V.2: NO horizontal direct effect of Directives -HELD IN MARSHALL?

A

HELD - THAT MEANS IN HROZIIONAL SCENARIO WHERE U WANT TO RELY - U CANT DO IT BC DIRECTIVE CAN NOT IMPOSE OBLIGATION ON ANOTHER PERSON

ARG 2?-Arg.: Binding nature of a Directive only exists in relation to “each MS to which it is addressed” [48 only addressed TO MS AND THEN MS IMPLEMENTS THAT DIRECTIVE

46
Q

Part V.2: NO horizontal direct effect of Directives - so what see in prob q?

A

SO YOU CAN SEE IN PROBL Q- IF U THINK HORIZIONTAL SCENARIO AND DIRECTIVE - START WITH EU RIGHT0 VAN GEND CRTIEIRA- ESTAB INDIVI WANTS TO ENFORCE ON ANOTHER AND ONYL THEN CT SAID THAT IS NOT POSS - STEP BY STEP MAKE SURE U DONT MISS SOMETHING.

SO EVEN IF MET, YOU CANNOT RELY ON THAT RIGHT IN NATIONAL COURTS- WHAT DOES THAT MEAN FOR OUT NATIONAL LAW STUDENT A - COULD SHE RELY- SICK PAY AGINS TUBER - SHE COULDNT - IF RIGHT WERE IN TREATY PROIVISON OR REGULATION SHE COULD BUT BECAUSE DIRECTIVE SHE COULDNT - FOR NOW - BUT CTS WENT AGAINS THEIR OWN RULE

47
Q

Part V.2: NO horizontal direct effect of Directives - Faccini arguments?Part V.2: NO horizontal direct effect of Directives - ARGUMENTS

A

Case C-91/92, Faccini Dori

HELD : Even if van Gend-criteria are met, an individual cannot enforce a directive against another individual in national courts [20-21].

Arg. 1: Wording of art. 288 TFEU [22] - only MS MENTIONED, INDIVID ARE NOT - AGREE BUT DO U REMEBR WHAT COURT DID IN AIRLINE CASE- CT SAID BC OF MANDTORY NATURE THAT HAD DIRECT EFFECT EBEN THOUGH ART 7 ONLY SPEAKS OF MS ASWELL- SO NOT COHERENT

Arg. 2: Case law on vertical direct effect of directives “seeks to prevent” the state from taking advantage of its own failure to comply with EU law [22]
= estoppel reasoning does not justify horizontal direct effect of directives - DEPENDS ON UR PERSONAL VIEW WHETHER CT CAN CREATE DOCTRINE OUTSIDE TEXTBOOK OF TREATY - SEE NOT FAIR BUT WHAT ABOUTE FFECTIVENESS- MORE EFFECTIVENESS INDIVIDUAL SHOULD GIVE HER THAT RIGHT AND CT RELIED ON THAT IN VEN GEND SO WHY NOT EFFECTIVENESS HERE AGAIN REASOMNING IS INCOHREENT

Arg. 3: EU has competence to enact obligations for individuals with immediate effect only where it is empowered to adopt regulations [24] - CONVICNING OR NOT?-D EPENDS ON - PERSONAL VIEW- SEE DISTINCITON HEE- HORITZAONL DODGY - UDNERMINE DISTINC- MS OF CHOICE AND DONT WHAT POINT OF HAVIG RIGHT

COUNTER ARG:

48
Q

Part V.2: NO horizontal direct effect of Directives - ARGUMENTS?

A

How convincing are the Court‘s arguments in Faccini Dori?

Textual argument convincing? Compare Defrenne v Sabena

Estoppel reasoning as the new rationale for direct effect of directives? But what about effectiveness?

Distinction Directive vs. Regulation? MS have choice of form and methods (only) when implementing directives. But: Horizontal direct effect does not take away this choice. [Counter-arg.: Yes, but it bypasses this choice.]

49
Q

Part V.2: NO horizontal direct effect of Directives - WHAT ABOUT THIS?

A

Did CJEU simply chicken out because of criticism from French/German courts after van Duyn? - DID THE CHICKEN OUT BC WHAT FRENCH AND GERMAN CT SAID - CT SAID NO ONLY ESTOPPEL REASONING BUT ESTOPELL ONL WORKS FOR VERTICAL NOT HORTIZONTAL BECAUSE PRIVATE NOT LIABLE DONT HAVE A DUTY TO IMPLEMENT

COURT IS DEPENDANT ON NATIONAL CTS AGREEING WITH REASON WITH CT AND IMPLEMENTING- SO INSTEAD OF CONLFICT JSUT DECIDED TO GO EASIER WAY SAYING DIRECTIVES DO NOT HAVE HORIZONTAL DIRECT EFFECT

50
Q

Part V.2: NO horizontal direct effect of Directives - what is the consequence?

A

Consequence of No horizontal direct effect of directives

  • Directive remains ineffective without proper implementation in MS. Incompatible national law applies. = consequence
  • BUT
  • CJEU has developed “strategies” to circumvent the lack of horizontal direct effect of directives [Part VI] - look next week

-MS liability for breach of EU law - if all else fails can sue uk for incorrect impleentation of directive
[TP2, Topic 8]

-THIS IS NO WHERE IN TEXT OF TREATIES MS LIABILITY another doctrine THAT CT CREATED

51
Q

Part V: Recap

A

look at slide

SHE WANTS HOLDIYA PAY- SHE BELEIVES COME FROM EU DIRECT

SO START WITH RIGHT

STEP 2- CHECK WEHTEHER ALL 3 CRITIERA FULFILLED IF NOT = CANT DIRECTLY ENFORCE TOU RIGHT

IF THEY ARE - IS RATTI SATISFIED IF WE SPEAK ABOUT DIRECTIVES IF NOT CANT ENFORCE IF IT IS

IS IT AGAINST STATE - EMANATION OFS TATE - AGAINST STANT IS VERTICAL AND ONLY IF AGAINST STATE U HAVE VERTICAL DIRECTIVE EFFECT AND ONLY THEN U HAVE VERTICAL DIRECT EFFECT AND ONLY THEN U CAN RELY ON RIGHT OF DIRECTIVE IN NATIONAL CTS

IF ITS UBER , SAINSBURY ETC THEN ITS NOT STATE THEN ITS PRIVATE INDIVIDUALS AND U CANT RELY ON THE DIRECTIVE IN NATIONAL CTS

52
Q

SUMMARY:

A

WE ESTABLISHED THAT WHENEVER U WANT TO RELY ON EU IN NATIONAL CTS - U NEED TO START WITH EU RIGGHT THEN U NEED TO ASSES VEN GEND CRITIERSA- IF MET AND IF RIGHT COMES FROM TREATY PROVSION OK WE HAVE HORTIZONAL AND VERTICAL DIREFFECT EFFECT NOT PROBLEM ANYMOR

IF RIGHT COMES FROM REGULATION AND FULILS VEN GEND WE ARE HAPPY ASWELL ONLY IF RIGHT ENSHIRENED IN DIRECTIVE- DIRECTIVE WHEN U HAVE TO GO THROUGH THESE EXTRA STEPS - THIS SEC RELEVANT FOR EXAM THE MOST

EULAW1 (11 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions