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EU LAW > DIRECT EFFECT > Flashcards

DIRECT EFFECT Flashcards

1
Q

What three treaties is the EU a byproduct of?

A

ECSC, EEC AND EUROATOM

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2
Q

What Articles of the TFEU provides mechanisms for the enforcement of member state obligations?

A

A258: Commission bringing m/s to the court of justice

A259: member states bringing others

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3
Q

What article states that member states can refer to the COJ for interpretation?

A

TFEU A267

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4
Q

What are the provisions of A288 of the TFEU?

A

Regulations: binding and directly applicable

Decisions: binding

Directives: binding on member states and have to be implemented by those member states

Recommendations and opinions: not binding

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5
Q

Direct Effect

A

Van Gend

  • confers individual rights which national courts must protect
  • contrary to A12 (dues)
  • established not just an international agreement
  • clear and precise
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6
Q

Principle of Supremacy

A

COSTA V ENEL

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7
Q

EU law over constitutional law of member states

A

INTERNAZIONALE HANDEL v EINFUHR… GERTREIDE

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8
Q

Simmenthal

A

Court mustn’t wait for a conflicting national measure to be set aside by a national authority

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9
Q

What legal instrument has defined EU primacy?

A

Lisbon Treaty 2007 Declaration 17

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10
Q

What is the difference between direct applicability and direct effect?

A

Direct applicability has been directly implemented into national law

Direct effect gives individual directly protected rights

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11
Q

Which case clarified what unconditional and sufficiently clear and precise meant in VGL?

A

Coop Agri Zoo

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12
Q

How has the COJ shown flexibility over direct effect?

A

DE isnt precluded by:

  • provisions raising questions of interpretation (Van Duyn)
  • member states being able to choose means of achieving the required result (Francovich)
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13
Q

DEFRENNE

A

Not clear and precise of the scope of A157 TFEU

Horizontal direct effect

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14
Q

VON COLSON

A

FAILED DIRECT - formation of indirect effect

German travel expenses - A6 of the Equal Treatment Directive

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15
Q

Positive obligations

A

LUTTICKE (when implementation time is up - A110 INTERNAL TAX)

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16
Q

Regulations - DE?

A

FRANZ GRAD = Suggested

POLTI = Confirmed

ANTONIO MUNOZ - can have horizontal direct effect

AZIENDA AGRICOLA - must still comply with VG criteria

17
Q

Decisions - DE?

A

FRANZ GRAD = YES

CARP SNC DI L MOLERI = only to whom it is addressed

18
Q

Recommendations and opinions - DE?

A

NO - GRIMALDI

19
Q

Directives - DE?

A

Van Duyn confirmed (Directive 2004/38)

20
Q

What rationale did Ratti provide? What else did Ratti provide?

A
  • M/S can not rely against individuals on its own failures to perform obligations of directives
  • Time implementation must have passed (A297)
  • NOT implemented directive
21
Q

Is there a direct effect on a directive that has been partially or incorrectly implemented? How has this been expanded?

A

VNO CONFIRMED

M&S expanses - NOT APPLIED IN MANNER TO ACHIEVE THE RESULT SOUGHT

22
Q

Marshall v Southampton

A

DIRECTIVES CANT BE HORIZONTAL - it is only to whom it was addressed

23
Q

Dori

A

Confirmed vertical direct effect of directives only - IGNORED RECOMMENDATIONS OF AG LUNZ

24
Q

Emanations of the State:

1) Health
2) Tax
3) Local/Regional Authority
4) Police

A

1) Marshall = health
2) Becker = tax
3) Fratelli = local or regional
4) Johnston = police force

25
Q

What case provided specific criteria for an emanation of the state? What were these criteria?

A

FOSTER V BRITISH GAS

1) Bipartite:

  • Authority/Control by state OR
  • Special powers

2) Tripartite:

  • Responsible for public service;
  • Under state control AND
  • special powers
26
Q

UK CASES OF EMANATION:

  • DOUGHTY V ROLLS ROYCE
  • GRIFFIN V SW WATER SERVICES
  • NUT V GOV BODY OF ST MARY’S COE SCHOOL
A

D V R

  • Tripartite
  • NOT - commercial undertaking

G v SWWS
- WAS AN EMANATION

NUT

  • Bipartite
  • No need for special powers
27
Q

KAMPELMANN

A
  • Bipartite
  • either or
  • confirmed in SOCIALHILFEVERBAND - local authority owned companies for disabled assistance
28
Q

Example of failed emanation under the tripartite

A

Una film city

  • No Special powers or public service
  • wanted annulment of D98/43/EC on tobacco
29
Q

Successful tripartite emanation

A

REISEE INTER. TRANSPORTE

  • private company BUT Austrian government was the only shareholder
30
Q

PORTGAS

A
  • private company exclusive right of gas distribution on Portuguese north coast
    1) NOT CLEAR TRIPARTITE
    2) NOT ONLY INDIVIDUALS CAN RELY ON DIRECTIVES - other authorities can too
31
Q

What case established the new test for emanations?

A

Farrell v MIB IRELAND

  • Rejected tripartite
  • Reformed Bipartite

1) legal persons governed by public law a part of the State in a broad sense OR
2) authority or control of a public body OR
3) Required to perform task for public interest and given special powers

32
Q

Criminal Liability

A

Criminal Proceedings Against Berlusconi

  • Cannot aggravate criminal liability
  • cant rely on this vs a private individual as it was based on a directive (68/151)

EU LAW (3 decks)

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