Direct Effect

Question 1

How do u answer a problem question on direct effect?

4 stages

Answer 1

I. Sufficiently clear, precise an unconditional
II. Has the implementation period expired
III. Is the claimant relying on the directive against the State or private party
IV. If direct effect is not possible, are there any of the alternative mechanisms

Question 2

Under dualism, international and national law are separate and so international law must be implemented
In what case did the Court assert the autonomy of the EU legal system?

Answer 2

Van Gen Den Loos

Question 3

Under dualism, international and national law are separate and so international law must be implemented
the Court in Van Gen Den Loos asserted that the autonomy of the EU legal system
discuss case

Answer 3

EU law was described as more than an agreement which merely creates mutual obligations between contracting parties and that EU law itself determines what legal effect EU law will have in the national legal orders

Question 4

the doctrine of direct effect confers rights to individuals that can be enforced in national courts, such as the free movement of persons ; what does this mean for the enforceability of EU law?

Answer 4

his means that EU law is enforceable in national courts even if the MS has failed to transpose them into national law

Question 5

The court was quick to assert the direct effect of Treaty provisions in which case?

Answer 5

Van Gend en Loos

Question 6

The court was quick to assert the direct effect of Treaty provisions in Van Gend en Loos
discuss facts and judgement of case

Answer 6

prohibited new customs duties being imposed or existing customs duties being increased.

Provision must be sufficiently clear and precisely stated
It must be unconditional and not dependant on any other legal provision
It must confer a specific right upon which a citizen can base a claim

As this criteria was fulfilled, then the national court could enforce Art 30

Question 7

prohibited new customs duties being imposed or existing customs duties being increased.

Provision must be sufficiently clear and precisely stated
It must be unconditional and not dependant on any other legal provision
It must confer a specific right upon which a citizen can base a claim

As this criteria was fulfilled, then the national court could enforce Art 30

Answer 7

The court was quick to assert the direct effect of Treaty provisions in Van Gend en Loos
discuss facts and judgement of case

Question 8

Following the case of Van Gend en Loos, the ECJ based its decision whether a provision of the Treaties was directly effective on 4 arguments
what are they?

Answer 8

that

1) the EU Treaty is more than a contract between States
2) The judicial power under Article 267 TFEU implies that Treaties have direct effect
3) European law constitutes an autonomous legal system ‘a new legal order’
4) efficiency of EU law

Question 9

The ECJ has declared a wide range of provisions directly successive, even though they are ambiguously worded like Art 49 and Art 50 TFEU which leave considerable discretion to the European legislator
Which case was this considered in?

Answer 9

Reyners v Belgium

Question 10

The ECJ has declared a wide range of provisions directly successive, even though they are ambiguously worded like Art 49 and Art 50 TFEU which leave considerable discretion to the European legislator this was considered in Reyners v Belgium. Discuss case

Answer 10

refused on the grounds he lacked Belgium nationality.The question before the court was whether such discrimination, prohibited by Art 49 was actionable on a directly effective basis even though had not been implemented after expiry date
HELD:
freedom of establishment shall be attained at the end of the transitional period at the end of the transitional period, was directly applicable

Question 11

refused on the grounds he lacked Belgium nationality.The question before the court was whether such discrimination, prohibited by Art 49 was actionable on a directly effective basis even though had not been implemented after expiry date
HELD:
freedom of establishment shall be attained at the end of the transitional period at the end of the transitional period, was directly applicable

Answer 11

The ECJ has declared a wide range of provisions directly successive, even though they are ambiguously worded like Art 49 and Art 50 TFEU which leave considerable discretion to the European legislator this was considered in Reyners v Belgium. Discuss case

Question 12

Today almost all treaty provisions have direct effect, even the most general ones: in which case did the court hold that an unwritten and vague general principle of European law can have direct effect

Answer 12

Mangold

Question 13

certain provisions of the treaties and legislative acts such as regulations are capable of being directly enforced horizontally as they confer rights on individuals which the national courts have a duty to protect
What case is this evidenced in?

Answer 13

Defrenne v Sabena

Question 14

case?
certain provisions of the treaties and legislative acts such as regulations are capable of being directly enforced horizontally as they confer rights on individuals which the national courts have a duty to protect
this is evidenced in Deference v Sabena

Answer 14

In cases of direct discrimination, whether by the actions of public authorities or not, regulation is directly applicable to national law and gives rise to rights that national courts must protect

Question 15

In cases of direct discrimination, whether by the actions of public authorities or not, regulation is directly applicable to national law and gives rise to rights that national courts must protect

Answer 15

certain provisions of the treaties and legislative acts such as regulations are capable of being directly enforced horizontally as they confer rights on individuals which the national courts have a duty to protect
this is evidenced in Deference v Sabena

Question 16

What is the connection between Van Gend En Loos and Defrenne v Sabena

Answer 16

further to the case of Van Gend en Loos, identified the horizontal and vertical direct effect of Treaty provisions which could be invoked in national courts and hence they would be bound to protect individual rights.

Question 17

What article states that a regulation shall have general application and shall be binding in its entirety and directly applicable in all Member States

Answer 17

Art 288 TFEU

Question 18

Regulations have direct applicability. Direct applicability is wider than direct effectnd means that regulations do not need to be officially adopted by the member States before they could have effect in the national legal orders
In what case was this established?

Answer 18

Fratelli Variola

Question 19

Regulations have direct applicability. Direct applicability is wider than direct effect and means that regulations do not need to be officially adopted by the member States before they could have effect in the national legal orders
This was estbalished in Fratelli Variola. Discuss

Answer 19

regulations operate to confer rights on individuals which the national courts have a duty to protect

Question 20

What does Article 288 TFEU state about the direct effect of decisions?

Answer 20

that decisions shall be binding on those to whom it is addressed; they will be binding in their entirety and directly applicable

Question 21

Article 288 TFEU states that decisions shall be binding on those to whom it is addressed; they will be binding in their entirety and directly applicable
For example in competition law where the Commission is empowered to prohibit anti-competitive agreements that negatively effect the internal market
What case is an example of this?

Answer 21

Grad v Finanzant

Question 22

Article 288 TFEU states that decisions shall be binding on those to whom it is addressed; they will be binding in their entirety and directly applicable
For example in competition law where the Commission is empowered to prohibit anti-competitive agreements that negatively effect the internal market
This was considered in Grad v Finanzant
Discuss case.

Answer 22

The German Government claimed that the State addressed decisions cannot, unlike regulations, create rights for private persons but the European Court stated that whilst Article 288 notes of the direct applicability of regulations which can produce direct effects, this does not mean that other legal measures can never produce similar effects
It would be incompatible with the binding effect attributed to decisions by Article 288 to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision
The effectiveness of the measure would be weakened if nationals could not invoke it in the courts

Question 23

The German Government claimed that the State addressed decisions cannot, unlike regulations, create rights for private persons but the European Court stated that whilst Article 288 notes of the direct applicability of regulations which can produce direct effects, this does not mean that other legal measures can never produce similar effects
It would be incompatible with the binding effect attributed to decisions by Article 288 to exclude in principle the possibility that persons affected may invoke the obligation imposed by a decision
The effectiveness of the measure would be weakened if nationals could not invoke it in the courts

Answer 23

Article 288 TFEU states that decisions shall be binding on those to whom it is addressed; they will be binding in their entirety and directly applicable
For example in competition law where the Commission is empowered to prohibit anti-competitive agreements that negatively effect the internal market
This was considered in Grad v Finanzant
Discuss case.

Question 24

In the case of Grad v Finanzant regarding the direct effect of decisions. What did the case hold?

Answer 24

that the prohibition in question of the decision was unconditional, sufficiently clear and precise to be capable of producing direct effects. The test came close to the test for Treaty provisions and so State addressed decisions here seem to follow the legal character of directives

Question 25

How are dircetives defined under Article 288 TFEU?

Answer 25

as an instruction to a state to introduce a law into its own legal system; they are vertically effective only

Question 26

There are two limbs to the definition of the direct effect of directives. What is this?

Answer 26

1) -not directly applicable and need to be implemented through national legislation

2) Directives are binding only on the States to which it is addressed and so lack general application
- directives are thus indirect legislation

Question 27

There are certain conditions and limits of directives. Cases will only arise after a Member State has failed to properly implement the directive into national law and then only in relations to state authorities themselves.
IN what case was this accepted?

Answer 27

Van Duyn v Home Office

Question 28

There are certain conditions and limits of directives. Cases will only arise after a Member State has failed to properly implement the directive into national law and then only in relations to state authorities themselves.
This was accepted in Van Duyn v Home Office
Discuss case

Answer 28

In this case the UK government was attempting to exclude Van Duyn, a Dutch national, from the UK because of her membership of an undesirable organisation
Part of this case looked at whether the concerned Directive, which outlawed national measures which limited free movement for generic reasons, could be directly enforced by Van Duyn
In this case the UK had notimplemented the directive into national law

HELD:
The directive was vertically directly effective however in this case the ECJ held tat Van Duyn could be denied entry if it was for reasons related to her personal conduct, which it was found was the case. not by her association

Question 29

In this case the UK government was attempting to exclude Van Duyn, a Dutch national, from the UK because of her membership of an undesirable organisation
Part of this case looked at whether the concerned Directive, which outlawed national measures which limited free movement for generic reasons, could be directly enforced by Van Duyn
In this case the UK had not implemented the directive into national law

HELD:
The directive was vertically directly effective however in this case the ECJ held tat Van Duyn could be denied entry if it was for reasons related to her personal conduct, which it was found was the case. not by her association

Answer 29

There are certain conditions and limits of directives. Cases will only arise after a Member State has failed to properly implement the directive into national law and then only in relations to state authorities themselves.
This was accepted in Van Duyn v Home Office
Discuss case

Question 30

IN what 4 ways did the judges justify the direct effect of directives in Van Duyn v Home Office>

Answer 30

1) to exclude direct effect would be incompatible with the binding effect of directives
the fact that a directive is not binding in national law is not incompatible with its binding effect under international law

2) their useful effect would be weakened if individual could not invoke them in national courts
this is a strong argument but not of a legal nature

3) since the preliminary reference procedure did not exclude directives, the latter must be capable of being invoked in national courts
while the preliminary reference procedure generally refers to all ‘acts of the institutions’ it could be argued that only those acts that are directly effective can be referred

4) the estoppel argument meaning that a MS is stopped from using its own failure to implement a directive as a defence

Question 31

The 4th argument used by the judges in Van Duyn was the estoppel argument; namely that a Member State is stopped from using its own failure to implement a directive as a defence. What case was this concerned in?

Answer 31

Ratti

Question 32

The 4th argument used by the judges in Van Duyn was the estoppel argument; namely that a Member State is stopped from using its own failure to implement a directive as a defence.
This was concerned in Ratti, discuss case

Answer 32

It was held that a MS which has not adopted the implementing measures required by the directive in the prescribed period may not rely on its own failure to perform the obligation which the directives entails

Question 33

From the wording of Article 288 TFEU it seemed that directives were not intended to have any direct effects in the national legal orders, why?

Answer 33

as they shall leave to the national authorities the choice of form and method

Question 34

What are the 4 requirements for when directives are directly effective?

Answer 34

• the specific provision is sufficient clear and precise
• the specific provision is unconditional
• the implementation period has expired
• alternative mechanisms

Question 35

For a directive to be directly effective; Specific provisions must be sufficiently clear and precise. What case does this flow from?

Answer 35

Van Gend en Loos that any provision of EU law must be found to be sufficiently clear and precise in order to be directly effective

Question 36

For a directive to be a directly effective; the specific provision must be unconditional. This means that it must not be conditional on any other provision, or any positive action taken by MS.
When is a provision of EU law not unconditional?

Answer 36

If a MS has been given the freedom to make its own policy choice as considered in Franovich

Question 37

For a directive to be a directly effective; the specific provision must be conditional. This means that it must not be conditional on any other provision, or any positive action taken by MS.
A provision of EU law is not conditional If a MS has been given the freedom to make its own policy choice as considered in Franovich
Discuss case

Answer 37

Concerned a directive the Italian state failed to implement after 5 years.
HELD:
was a decision of the European Court of Justice which established that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state’s failure to transpose an EU directive into national law. This principle is sometimes known as the principle of state liability.

Question 38

Concerned a directive the Italian state failed to implement after 5 years.
HELD:
was a decision of the European Court of Justice which established that European Union member states could be liable to pay compensation to individuals who suffered a loss by reason of the member state’s failure to transpose an EU directive into national law. This principle is sometimes known as the principle of state liability.

Answer 38

For a directive to be a directly effective; the specific provision must be conditional. This means that it must not be conditional on any other provision, or any positive action taken by MS.
A provision of EU law is not conditional If a MS has been given the freedom to make its own policy choice as considered in Franovich
Discuss case

Question 39

How long are member states given to implement the provisions of the directive?

Answer 39

2 years

Question 40

If the time limit o the directive has not passed, the direct effect cannot be invoked. What must then the applicant do? (2)

Answer 40

1) wait until the state fails to implement the directive
2) has implemented the directive incorrectly
this was considered in Pfeiffer and Others

Question 41

If the time limit o the directive has not passed, the direct effect cannot be invoked. In this case the applicant must either
1) wait until the state fails to implement the directive
2) has implemented the directive incorrectly
this was considered in Pfeiffer and Others
Discuss case

(incorrectly implemented)

Answer 41

Workers of the German Red Cross who served as emergency works claimed that their set hours of 49 per week violated the Working Time Directive. The Red Cross contended that as emergency workers were like civil servants they thus fell outside the Directive’s scope
HELD: 
Grand Chamber CoJ held that workers could not be asked to work 49 hours a week they held that the exception for civil servants was not applicable holding that the activities of emergency workers can be clearly distinguished

Question 42

Workers of the German Red Cross who served as emergency works claimed that their set hours of 49 per week violated the Working Time Directive. The Red Cross contended that as emergency workers were like civil servants they thus fell outside the Directive’s scope
HELD: 
Grand Chamber CoJ held that workers could not be asked to work 49 hours a week they held that the exception for civil servants was not applicable holding that the activities of emergency workers can be clearly distinguished

Answer 42

pfeiffer and Others
Discuss case

(incorrectly implemented)

Question 43

Even before the expiry of the time limit for implementation, MS must refrain from taking any measures liable to seriously compromise the result prescribed by the directive as considered in which case?

Answer 43

Inter Environment Wallonie

Question 44

Even before the expiry of the time limit for implementation, MS must refrain from taking any measures liable to seriously compromise the result prescribed by the directive as considered in Inter Environment Wallonie
Discuss case

Answer 44

the obligation of a MS to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation
Although MS are not obliged to adopt those measures before the end of the period allowed for transposition, they must during that period refrain from taking any measures liable seriously to compromise the result prescribed by the directive concerned

Question 45

The applicant requested to annul an order on toxic waste as it acted contrary to certain provisions of the relevant Community directive
HELD:
the obligation of a MS to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation
Although MS are not obliged to adopt those measures before the end of the period allowed for transposition, they must during that period refrain from taking any measures liable seriously to compromise the result prescribed by the directive concerned

Answer 45

Inter Environment Wallonie

Discuss case

Question 46

What is the main limitation of directives which coincides with the estoppel argument in Van Duyn?

Answer 46

that if a MS has failed to implement a directive, it cannot invoke direct effect against an individual on the basis that the individual has violated the directive as in Kolpinghius:

Question 47

the main limitation of directives which coincides with the estoppel argument in Van Duynthe main limitation of directives which coincides with the estoppel argument in Van Duynimplement a directive, it cannot invoke direct effect against an individual on the basis that the individual has violated the directive as in Kolpinghius
Discuss case

Answer 47

In this case Kolp was a dutch cafe owner who had sold tap water as mineral water which was in breach of an EU directive on mineral water but the Netherlands had not implemented this directive. Nevertheless the Dutch public prosecutor brought a criminal prosecution against the cafe owner on the basis of the directive.
HELD:
COJ held that a MS cannot fail to implement a directive and then still try to use the directive to prosecute individuals

Question 48

In this case Kolp was a dutch cafe owner who had sold tap water as mineral water which was in breach of an EU directive on mineral water but the Netherlands had not implemented this directive. Nevertheless the Dutch public prosecutor brought a criminal prosecution against the cafe owner on the basis of the directive.
HELD:
COJ held that a MS cannot fail to implement a directive and then still try to use the directive to prosecute individuals

Answer 48

Kolpinghius

Discuss case

Question 49

Directives cannot be invoked in horizontal situations. Why in horizontal situations does the estoppel argument not work?

Answer 49

In horizontal situations the estoppel argument will not work since it was the MS that failed to implement the directive and not a private individual.

Question 50

What case established that there is no horizontal direct effect of Directives?

Answer 50

Marshall v Southampton Health Authority

Question 51

Marshall v Southampton Health Authority established that there is no horizontal direct effect of Directives
Discuss case

Answer 51

despite her willingness to work until65; which was the national age for men to retire (women aged 60)
HELD:
The applicant was able to use the directive against her employer but only because her employer was in fact the Health Service, an organ of the State.
RULE
binding nature of a directive only exists in relation to each Member State to which it is addressed

Question 52

Case concerned the applicant who claimed that her dismissal on grounds of being too old violated the Equal Treatment Directive; despite her willingness to work until65; which was the national age for men to retire (women aged 60)
HELD:
The applicant was able to use the directive against her employer but only because her employer was in fact the Health Service, an organ of the State.
RULE ‘
binding nature of a directive only exists in relation to each Member State to which it is addressed

Answer 52

Marshall v Southampton Health Authority

Question 53

What are the 2 key cases under the fact that there can be no horizontal direct effect

Answer 53

Marshall v Southampton and

Faccini Dori

Question 54

What are the 4 principle reasons against horizontal direct effect?

Answer 54

1) textual argument- a directive is binding in relation to each MS it is addressed
2) the estoppel argument: direct effect of directives exists to prevent MS taking advantage of its failure to implement- individuals are not responsible for the non implementation
3) systematic argument: if horizontal effect was given to directives the distinction between directives and regulations would disappear (weak argument as distinct character of directives could be preserved in different ways
4) legal certainty:the Queen v Wells held that the principle of legal certainty prevents directives from creating obligations for individuals

Question 55

The principle reason against the horizontal direct effect of directives was considered in which case?

Answer 55

Fratelli

Question 56

Vertical direct effect may also effect bodies that could be described as an emanation of the state; one way to minimise the non horizontal direct effect of directives
The Court has shown a willingness to accept a private body as an emanation of the State such as in which case?

Answer 56

Foster v British Gas

Question 57

Vertical direct effect may also effect bodies that could be described as an emanation of the state; one way to minimise the non horizontal direct effect of directives
The Court has shown a willingness to accept a private body as an emanation of the State such as in Foster v British Case
discuss case

Answer 57

English COA held that British Gas was not a public body against which a directive could be enforced.
HELD:
A nationalised undertaking such as British Gas would be a public body

Question 58

English COA held that British Gas was not a public body against which a directive could be enforced.
HELD:
A nationalised undertaking such as British Gas would be a public body

Answer 58

Foster v British Case

discuss case

Question 59

How was the company in Foster v British Gas considered an emanation of the state?

Answer 59

as it provided a public service and was under the control of the State (as the Secretary of State had the right to appoint members of the company)

Question 60

Which case focuses on whether both special powers and control must be present; finding that the court indicates either one will suffice?

Answer 60

Farrell

Question 61

Farrell focuses on whether both special powers and control must be present; finding that the court indicates either one will suffice
discuss case

Answer 61

he ECJ’s decision that MIBI is an emanation of the state
entity will be if either (1) it is governed by public law, (2) it is subject to the authority or control of a public body, or (3) it performs a public interest task on the basis of special powers.

Question 62

In which 2 cases does the Court respect the rule that directives could not have horizontal direct effect but limited this rule by extending what constituted as a vertical case

Answer 62

Foster and Marshall

Question 63

In which 2 cases was the indirect effect of horizontal relations between private parties considered?

Answer 63

CIA Security

Unilver Italia

Question 64

In CIA Security and Unilver Italia the indirect effect of horizontal relations between private parties considered, discuss the first case

Answer 64

Belgium legislation itself violated a European requirement established by a Directive.
HELD:
In this case it was decided that CIA Security could rely on the directive as the contracts were not valid under EU law and so not enforceable

Question 65

Belgium legislation itself violated a European requirement established by a Directive.
HELD:
In this case it was decided that CIA Security could rely on the directive as the contracts were not valid under EU law and so not enforceable

Answer 65

In CIA Security and Unilver Italia the indirect effect of horizontal relations between private parties considered, discuss the first case

Question 66

It is true as obdersved by the italian and Danish Governments that a directive cannot of itself impose obligations on an individual an therefore cannot be relied on against an individual as in which case?

Answer 66

Faccini Dori

Question 67

individuals trying to invoke a Directive against another individual may be able to rely on the principle of indirect effect.. This can be understood as an obligation on national courts to interpret national law consistently with the wording and aims of the directive. What else can this be called?

Answer 67

the principle of consistent interpretation

Question 68

individuals trying to invoke a Directive against another individual may be able to rely on the principle of indirect effect.. This can be understood as an obligation on national courts to interpret national law consistently with the wording and aims of the directive
This can also be called the principle of consistent interpretation and was considered in which case?

Answer 68

Von Colson

Question 69

individuals trying to invoke a Directive against another individual may be able to rely on the principle of indirect effect.. This can be understood as an obligation on national courts to interpret national law consistently with the wording and aims of the directive
This can also be called the principle of consistent interpretation and was considered in Von Colson
Discuss case

Answer 69

In this case a female German national was refused employment at a prison on the basis of her gender, contrary to the Equal Treatment Directive
HELD:
It is a national courts duty to interpret national law in accordance with EU law and so Von Colson should be offered a substantial remedy
This interpretative duty may give rise to directives being (almost) horizontally effective

Question 70

In this case a female German national was refused employment at a prison on the basis of her gender, contrary to the Equal Treatment Directive
HELD:
It is a national courts duty to interpret national law in accordance with EU law and so Von Colson should be offered a substantial remedy
This interpretative duty may give rise to directives being (almost) horizontally effective

Answer 70

Von Colson

Discuss case

Question 71

The duty of consistent interpretation can apply in horizontal situations where the MS has a duty to interpret national legislation in light of unimplemented European Union directives as considered in which 2 cases?

Answer 71

Marleasing and

Pfeiffer

Question 72

The duty of consistent interpretation can apply in horizontal situations where the MS has a duty to interpret national legislation in light of unimplemented European Union directives as considered in Marleasing and Pfeiffer
discuss the first

Answer 72

This case established that a national court, should stretch national law as far as possible in accordance with an unimplemented directive.

Question 73

The duty of consistent interpretation can apply in horizontal situations where the MS has a duty to interpret national legislation in light of unimplemented European Union directives as considered in Marleasing and Pfeiffer
discuss the second

Answer 73

Where domestic law was specifically enacted to implement the directive, the national courts must operate under the presumption that the MS had the intention of fulfilling entirely the obligation arising from the directive

Question 74

An illustration of the horxintal indirect effect can be seen in which case

Answer 74

Webb

Question 75

An illustration of the horizontal indirect effect can be seen in Webb, discuss case

Answer 75

the case concerned an employee who was hired to replace a pregnant co worker 2 weeks later of which she herself realised was pregnant. She pleaded sex discrimination contrary to the Equal Treatment Directive
HELD:
Upon a preliminary reference the ECJ held that the fact she was employed to replace another was irrelevant. The HOL were forced to change its previous interpretation of national law and so Webb won

Question 76

the case concerned an employee who was hired to replace a pregnant co worker 2 weeks later of which she herself realised was pregnant. She pleaded sex discrimination contrary to the Equal Treatment Directive
HELD:
Upon a preliminary reference the ECJ held that the fact she was employed to replace another was irrelevant. The HOL were forced to change its previous interpretation of national law and so Webb won

Answer 76

An illustration of the horizontal indirect effect can be seen in Webb, discuss case

Question 77

What are the 4 limitations of horizontal indirect effect?

Answer 77

1) There has to be national law which can be interpreted consistently with the directive
Courts cannot create laws therefore national law must exist to be interpreted consistently with the directive

2) The Implementation period must have expired
If it has not expired, the MS could still transpose a directive into national law

3) Interpretation cannot be contra legem
Cannot interpret national law in a way which would clearly go against the wording of the provision of national law
If a national law provides that workers shall not work longer than 52 hours a week but an EU Directive states 48; it would be impossible to interpret 52 as 48

4) Indirect effect cannot be used to aggravate the criminal liability of individuals Similarly to direct effect, consistent interpretation cannot be invoked by the State to aggravate the criminal liability of individuals - Kolpinghuis

Question 78

When would you use the indirect effect of vertical situations?

Answer 78

if it is difficult to prove that a particular provision is clear, precise and unconditional (as per Von Colson)

Question 79

Mangold was confirmed and considered in Kikideveci. Discuss case

Answer 79

In this case Germany was said to have violated another directive by having discriminated against younger employees
HELD:
It was impossible to consistently interpret the national law with the directive and so indirect horizontal effect was not applicable
This case confirmed the more general rule that individuals can invoke general principles of EU law to set aside provisions of national law even proceedings between private parties

Question 80

In this case Germany was said to have violated another directive by having discriminated against younger employees
HELD:
It was impossible to consistently interpret the national law with the directive and so indirect horizontal effect was not applicable
This case confirmed the more general rule that individuals can invoke general principles of EU law to set aside provisions of national law even proceedings between private parties

Answer 80

Mangold was confirmed and considered in Kikideveci. Discuss case

Question 81

Mangold indicates that if a directive gives expression to a general principle of Eu law- even where it is impossible to reconcile the wording of national law with the directive- national courts must misapply national law. However what is unclear?

Answer 81

other than instances dealing with non discrimination it is unclear which EU directives give expression to give principles of EU law.

Question 82

what about Van Gend en loos makes Article 30 ideal for direct effect?

Answer 82

The wording of Art 30 is not a positive but a negative obligation and therefore its implementation is not conditional upon a positive legislative measure enacted under international law

Question 83

Where are the legislative instruments defined in TFEU?

Answer 83

Article 288

Question 84

What is a regulation? Art 288 (2)

Answer 84

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

Question 85

What is a directive? Art 288

Answer 85

A directive shall be 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. Not directly applicable

Question 86

What is a decision? Art 288

Answer 86

A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Directly applicable.

Question 87

 The regulation is the principal legislative instrument of the Union. It is normally produced via the ordinary legislative procedure.
That regulations can have direct effect was clarified, early on, by the European Court of Justice in Fratelli
What did they say?

Answer 87

“… owing to their very nature and their place in the system of sources of [Union] law, regulations operate to confer rights on individuals which the national courts have a duty to protect.”

Question 88

What did the case of Ratti decide?

Answer 88

 Once the expiration of the period for implementation of a directive has happened, a MS may not apply its internal law, to a person who has complied with the requirements of the directive
 But until this period has expired, an individual cannot plead the principle of “legitimate expectation”

Question 89

When might a provision not be sufficiently clear and precise to find direct effect of a directive?

Answer 89

if a provision gives a lot of discretion to a Member State or institution, the courts may be unable to determine the precise scope of the obligation.

Question 90

If a Member State fails to implement a directive, it cannot then invoke direct effect against an individual on the basis that the individual has violated the directive
which case

Answer 90

Kolpinghuis

Question 91

Why was british Gas found to have vertical direct effect?

Answer 91

: British Gas had “special powers” because it provided a public service, and the company was also under the “control” of the State

Question 92

directives can have a limited form of “incidental” horizontal direct effect.
What did the Court say in Unilver?

Answer 92

The Court held that the fact that Italy had not notified the Italian legislation to the European Commission meant that individuals could not rely on the Italian legislation before the national courts.
this is exceptional or incidental

Question 93

What did Gerrit Betlam say about legal uncertainty?

Answer 93

that legal uncertainty could be reduced if the ECJ would be prepared to provide more reasoning in its judgements
A highly critical discussion of the Arcaro judgement concludes that its precedent value is next to nothing.

Question 94

Who said this?
that legal uncertainty could be reduced if the ECJ would be prepared to provide more reasoning in its judgements
A highly critical discussion of the Arcaro judgement concludes that its precedent value is next to nothing.

Answer 94

Gerrit Betlam

Question 95

What is the principle from Von Colson

Answer 95

national courts are required to interpret their national law in the light of the wording and the purpose of the Directive

Question 96

What was the principles from Van Gend en Loos

Answer 96

The objective of the [European Treaty], which is to establish a Common Market], implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting parties
The conclusion to be drawn from this is that the [Union] constitutes a new legal order

Question 97

What principle did the court develop in Costa v ENEL?

Answer 97

the second most famous judgment of the Court of Justice, the Court developed the principle of supremacy of EU law.

Question 98

What was it the court said in Costa v ENEL in rejection of Italian Parliament showing that newly adopted legislation expresses its intention to derogate from its earlier acceptance of the EEC treaty?

Answer 98

The precedence of [European] law is confirmed by [Article 288 TFEU], whereby a regulation ‘shall be binding’ and ‘directly applicable in all Member States’, The provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over [European] law.

Question 99

What does case of Simmenthal say?

Answer 99

that EU law only requires national courts to “disapply” inconsistent national legislation, which basically means that the national court has to ignore it.

Question 100

What did the German Constitutional Court say in So Long II?

Answer 100

“in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the application of secondary [European] legislation[.]”

Question 101

HS2 Action Alliance Limited 2014; what was held?

Answer 101

Lordships held that there may be some UK legislation which is more fundamental – and more constitutional in nature – than the ECA 1972

Question 102

Which case? Lordships held that there may be some UK legislation which is more fundamental – and more constitutional in nature – than the ECA 1972

Answer 102

HS2 Action Alliance Limited 2014;