Direct effect Flashcards
Which article lists the various ways the EU can articulate its wishes?
Article 288 Directives Regulations Decisions Recommendations Opinions
then talk about dualist and monist states
What are Directives?
Directives are binding as to the result to be achieved upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
ONLY BIND STATES!
they harmonise
not directly applicable like regulations.
require implementation measures.
the directive has no direct effect until the time limit has ran out.
do not have horizontal direct effect.
What does direct effect allow citizens to do?
Direct effect allows individuals to take state bodies to court and take public authorities to court to apply horizontal direct effect
what did the case of Van Gent en Loos show?
showed that a treaty is more than just a treaty as it affects individuals also.
Not just international law.
A private party can invoke a provision directly on a signatory state.
therefore conferring rights and obligations on individuals and in the case of the netherlands, a company. it showed that it did not matter what the legislation or constitution was like in the state. also, showed no need for further implementation into the domestic legal system.
what is the Estoppel argument in Pubblico Ministero v Tullio Ratti
A member state which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.
it must implement a directive
what did Marshall v Southampton and South-West Hampshire Area Health Authority show? what happened?
challanged the retirement age of women as discriminatory. sex discrimination at employment.
showed that private persons have no obligations towards the directives. therefore they do not need to apply them. held that it is not possible to have horizontal direct effect FOR DIRECTIVES.
what did the case of Von Colson show?
It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law. therefore courts will apply directives between individuals which allows horizontal effect.
the national court is bound to interpret national law so far as possible in the light of the wording and purpose of the directive in order to achieve the result sought by the directive.
what are regulations?
They are binding to their entirety and directly applicable to all member states. Have the same effect as national statutes.
They unify the states
have direct effect.
have horizontal direct effect
what is Direct Effect?
Direct effect means EU law becomes the first source of law for the national court. it refers to the ability of individuals to rely on direct effect in courts. these are horizontal and vertical direct effect.
what is direct applicability?
EU Treaties are directly applicable as well as regulations.
what did the case of Fostor v British Gas show?
Forced to retire at 60 but male collegues could retire at 65. Need to prove british gas was a part of the state to have vertical effect.
The main issue. Even a body which appears to be a private entity/company under the control of the state. special powers which normal individuals DO NOT HAVE is included in the directives. still vertical direct effect.
what did the case of Von Colson v Land Nordrhein-Westfalen show?
Needed compensation for travelling for interview.
Courts are part of state. Horizontal direct effect via the courts. found that courts must interpret national law to conform with EU legislation. however it cannot exceed its powers of interpretation in national law.
what did the case of Francovich v Italian Republic show?
where a member state fails to implement their directives this allows for liability. Francovich gave us 3 conditions to show,
Firstly that the individual does have rights granted under the directive.
Secondly these rights should be able to be identified in the directive.
Lastly, there must be a causal link between the breach of the states obligation and the loss suffered by the individual parties.
Fratelli Costanzo Spa v Comune di Milano what happened?
a local authority is responsible for not implementing a directive as it is an organ of the state.
what is indirect effect?
the court is part of the state. State is bound to apply directives. 2 individuals go before the state. court is bound to apply these directives and so there can be horizontal effect between individuals.
It is about interpreting national law, national law needs to be interpreted in light of directives and the bar is very low as it does not need to meet the requirements of being clear, precise and unconditional.
If the domestic law has not implemented the directive on time then there is an obligation on the national court to interpret national law with the directive.
If domestic law is completely contrary to the directive then there is no Horizontal direct effect and the private party is not able to sue the other private party and can only sue the state for failing to implement the directive for the damages caused.
