Direct Effect

Question 1

Regulation is binding and directly applicable in all member states per this article

Answer 1

Article 288 TFEU (cf. Leonesio v Italian Ministry of Agriculture)

Question 2

Treaty provisions have direct effect provided they are sufficiently precise and do not require further implementation.

Answer 2

Van Gend en Loos

Question 3

Implementation requirement for treaty provisions relaxed - even if Member State has not implemented measures, provision is still directly applicable

Answer 3

Reyners

Question 4

Precision requirement relaxed in case of Article 141 EC, which at the time was vague - principle of equal pay for equal work not well defined, treaty provision still applicable.

Answer 4

Defrenne

Question 5

Decisions are binding in their entirety, and decisions which specify to whom they are addressed shall be binding only on them

Answer 5

Article 288 TFEU (cf. Grad v Finanzamt Traunstein)

Question 6

Direct effect of directives: can have effect on member states

Answer 6

Van Duyn v Home Office

Question 7

Directives do not have horizontal effect (on individuals)

Answer 7

Marshall v Southampton Health Authority

Question 8

Directives can have direct vertical effect, as it would be wrong for member states to rely on their own failure to discharge obligation as to deprive individuals of rights intended from directives

Answer 8

Faccini Dori

Question 9

Opinion of Advocate General Lenz in favour of horizontal direct effect of directives for two reasons

Answer 9

1. Would be wrong for individuals to be subject to different rules depending on whether they have comparable legal relations with a state body or private individual
2. Detrimental to single market if individuals were subject to different laws in Member States, undermining harmonizing measures

Question 10

“emanation of the state” - any government organisation, nationalised or public sector company can be subject to horizontal direct effect of directives

Answer 10

Foster v British Gas

Question 11

CJEU - a directive can be directly effective if they impose obligation to achieve a required result and may be relied upon against any national provision incompatible with that objective

Answer 11

Grad v Finanzamt Traunstein

Question 12

If time limit for implementation in national law of directive has not expired, the directive cannot have direct effect

Answer 12

Publico Ministerio v Ratti

Question 13

2018 case confirms that directives do not have horizontal direct effect

Answer 13

Smith

Question 14

Dougan proposes two views of relationship between direct effect and supremacy

Answer 14

1. Primacy Model

2. Trigger Model

Question 15

Primacy Model: supremacy a constitutional fundamental of EU, alone producing legal effects within national systems

Answer 15

1) It can produce exclusionary effects (setting aside national legislation incompatible with norm of Community law.
2) Direct effect produces supplementary effect by creating direct effects within domestic legal order that did not already exist.

Question 16

Trigger Model:

Answer 16

Direct effect renders issues justiciable, thereby triggering situations where supremacy is applicable.

Question 17

Indirect effect: Member states have obligation under Article 10. When court applies national law, it must be interpreted in light of wording & purpose of related directive in so far as the two can be reconciled

Answer 17

Von Colson

Question 18

Indirect effect: national court must interpret national provisions in light of the wording and purpose of directive, regardless of whether provisions were adopted before or after the directive.

Answer 18

Marleasing SA

Question 19

Indirect effect: individuals can rely on national courts, against the sate, on provisions that are unconditional and sufficiently precise when implementation of the directive has been incomplete or non-existent.

Answer 19

Marks and Spencer plc v Commoners of Custome and Excise.

Question 20

Direct effect not horizontal: in dispute between private parties, national court is not obliged to disapply national provision that is contrary to directive.

Answer 20

Smith

Question 21

Incidental effect of directives: indirect effect of EU directives in private legal action is possible. State’s failure to comply with directive can see the national law disapplied. ECJ claims that this isn’t direct horizontal effect, but undermines Marshall

Answer 21

Unilever Italia v Central Foods

Arcor v Germany

Question 22

State liability claims can be made if state fails to properly implement directive if directive confers identifiable rights on individuals

Answer 22

Francovich, clarified in Brasserie du Pecheur/Factortame

Question 23

State liability: must be sufficient causal link between breach and loss suffered

Answer 23

Francovich

Question 24

Liability can arise from any state authority

Answer 24

Goebler, developed in Traghetti del Mediterranean

Question 25

Breach must be serious in that it is the same threshold adopted in respect of EU breach of its own law under Art 345

Answer 25

Brasseie/Factortame

Question 26

Conditions under Art 345

Answer 26

intentional or accidental breach, degree of MS discretion as to damage caused, role of EU institutions in the breach and the precision of the right conveyed.

Question 27

Form of implementation of a directive left to member state

Answer 27

Article 288

Question 28

Non-implementation of a directive a prima facie serious breach

Answer 28

Francovich

Question 29

Implementation after deadline a prima facie serious breach

Answer 29

Dillenkofer

Question 30

State liability can be defended if implementation was clearly defensible and in good faith

Answer 30

BT Telecom

Question 31

State liability can be defended if directive was unclear and other MS used similar interpretation

Answer 31

Denkavit