DIRECT EFFECT

Question 1

What three treaties is the EU a byproduct of?

Answer 1

ECSC, EEC AND EUROATOM

Question 2

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

Answer 2

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

A259: member states bringing others

Question 3

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

Answer 3

TFEU A267

Question 4

What are the provisions of A288 of the TFEU?

Answer 4

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

Question 5

Direct Effect

Answer 5

Van Gend

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

Question 6

Principle of Supremacy

Answer 6

COSTA V ENEL

Question 7

EU law over constitutional law of member states

Answer 7

INTERNAZIONALE HANDEL v EINFUHR… GERTREIDE

Question 8

Simmenthal

Answer 8

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

Question 9

What legal instrument has defined EU primacy?

Answer 9

Lisbon Treaty 2007 Declaration 17

Question 10

What is the difference between direct applicability and direct effect?

Answer 10

Direct applicability has been directly implemented into national law

Direct effect gives individual directly protected rights

Question 11

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

Answer 11

Coop Agri Zoo

Question 12

How has the COJ shown flexibility over direct effect?

Answer 12

DE isnt precluded by:

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

Question 13

DEFRENNE

Answer 13

Not clear and precise of the scope of A157 TFEU

Horizontal direct effect

Question 14

VON COLSON

Answer 14

FAILED DIRECT - formation of indirect effect

German travel expenses - A6 of the Equal Treatment Directive

Question 15

Positive obligations

Answer 15

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

Question 16

Regulations - DE?

Answer 16

FRANZ GRAD = Suggested

POLTI = Confirmed

ANTONIO MUNOZ - can have horizontal direct effect

AZIENDA AGRICOLA - must still comply with VG criteria

Question 17

Decisions - DE?

Answer 17

FRANZ GRAD = YES

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

Question 18

Recommendations and opinions - DE?

Answer 18

NO - GRIMALDI

Question 19

Directives - DE?

Answer 19

Van Duyn confirmed (Directive 2004/38)

Question 20

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

Answer 20

• 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

Question 21

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

Answer 21

VNO CONFIRMED

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

Question 22

Marshall v Southampton

Answer 22

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

Question 23

Dori

Answer 23

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

Question 24

Emanations of the State:

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

Answer 24

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

Question 25

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

Answer 25

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

Question 26

UK CASES OF EMANATION: - DOUGHTY V ROLLS ROYCE - GRIFFIN V SW WATER SERVICES - NUT V GOV BODY OF ST MARY’S COE SCHOOL

Answer 26

D V R - Tripartite - NOT - commercial undertaking G v SWWS - WAS AN EMANATION NUT - Bipartite - No need for special powers

Question 27

KAMPELMANN

Answer 27

- Bipartite - either or - confirmed in SOCIALHILFEVERBAND - local authority owned companies for disabled assistance

Question 28

Example of failed emanation under the tripartite

Answer 28

Una film city - No Special powers or public service - wanted annulment of D98/43/EC on tobacco

Question 29

Successful tripartite emanation

Answer 29

REISEE INTER. TRANSPORTE - private company BUT Austrian government was the only shareholder

Question 30

PORTGAS

Answer 30

- 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

Question 31

What case established the new test for emanations?

Answer 31

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

Question 32

Criminal Liability

Answer 32

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)