DIRECT EFFECT Flashcards
VAND GEND EN LOOS (***)
FACTS: Netherlands increased import duty (tariff change) after EEC treaty came into force. Referred under Preliminary Reference Procedure.
REASONINGS:
1) Teleological- reference to the people. More than merely an agreement.
2) Textual: new legal order. confers rights.
3) Practical: ensures followed and protects rights.
POL: Has direct effect and creates individual rights which national courts must protect.
CONDITIONS FOR DIRECT EFFECT: i) clear, ii) unconditional iii) contain no reservation on the part of a MS. iv) not be dependant on any implementing procedure. v) contain a negative obligation.
VAN DUYN v HOME OFFICE (***)
FACTS: Dutch national associated with scientology. Wanted to move to UK to take up employment with Church of Scientology. Considered activities harmful. Refused entry. Asked whether Free Movement Directive “is directly applicable so as to confer an individuals rights enforceable by them in the court of a MS.” NOT ALLOWED TO STOP ENTRY. Can only be restricted on grounds of public policy, health, security or overriding reason of public interest.
POL: Relaxed the requirements of clear and unconditional set out in Van Gend En Loos. Held restrictions to rights emnating from treaties were subject to judicial control.
DIRECTIVES SHOULD BE CONSIDERED UNCONDITIONAL IF RELIED BY CITIZENS. Can be directly effective if unimplemented or done so incorrectly.
REASONING FOR DECISION: 1) incompatible with wording to exclude in principle. 2) Effet utile- the effect would be reduced and decreases burden on commission 3) Article 267 TFEU (echoes textual in van gend)
SECOND CONDITION FOR DIRECT EFFECT OF DIRECTIVES: “Whether the nature, general scheme and wording of the provisions in question are capable of having direct effects on the relations between MS and Individuals.”
REYNERS v BELGIUM (***)
FACTS: Dutch national studies law in Belgium. Applies for Belgian bar. Refused on nationality grounds. Treaty provides restrictions on Freedom of Establishment are prohibited. However, “in order to attain freedom of establishment legislation is to be adopted” (ART 50 TFEU) Direct effect
REASONING: . This ensured that (i) the basic principles of the Treaty were adhered to, and (ii) harmonisation was not stultified by the inaction of the MSs in Council
POL: now require that the provision be: clear; unconditional (no reservations by the MSs); not dependant on further implementing measures.
ZAERA
POL: In practice, the court considers whether the provision is capable of judicial application, as opposed to a mere aspiration
DEFRENNE v SABENA
FACTS: Air hostess paid less than male colleagues. Sabena treated as private person, not state. 157 TEU had direct effect.
POL: Individuals can rely on some treaty articles horizontally. This allows for an increased protection of community rights however it does breach the legal certainty principle
ASSOCIATION DE MEDIATION SOCIALE
POL: Horizontal Direct applicability of Charter provisions has thus far been left open
VIKING 2007
FACTS: Industrial action by trade unions which hinders frreedom of establishment and provide services subject to review. Horizontal direct effect.
POLITI
DIRECT EFFECT OF REGULATIONS. Early case law.
POL: Simply equated direct effect to direct applicability as stated in the treaty. Direct applicability means that unless stated, no national implementation needed. Therefore presumed, since it is directly applicable, it will have direct effect.
MUNOZ v FRUMAR
DIRECT EFFECT OF REGULATIONS.
Separated into two categories.
POL: “owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect.” Therefore, direct effect is generally presumed.
GRAD
DIRECT EFFECT OF DECISIONS.
POL: Regulations do not stop others from having direct effect. “It would be incompatible with the binding effect attributed to decisions by Art 288 to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision.”
CARP SNC DI L MORELI
DIRECT EFFECT OF DECISIONS.
POL: Only have HORIZONTAL DIRECT EFFECT IF: 1) addressed to individuals and 2) Satisfy the conditions of direct effect.
RATTI
FACTS: manufactured packaging in accordance with 2 Directives. Not yet implemented by Italy. Manufacturer prosecuted for not including labelling needed in Italian domestic law but not in Directive. Deadline for one period of implementation had passed but this wasn’t the case for the other.
POL: For not expired periods, there can be no direct effect for the directive but in relation to the expired period: “national courts cannot consider directives as defence even if implementation period has passed.”
CONDITION OF DIRECT EFFECT FOR DIRECTIVES. : “TIME LIMIT FOR IMPLEMENTATION EXPIRED.
MEADE
CONDITIONS FOR DIRECT EFFECT OF DIRECTIVES: When considering whether it is capable of having direct effect in relations between MS and Individuals it must be “unconditional and sufficiently precise.”
