Direct Effect - Direct Effect of Directives (PQ) Flashcards
What are the four questions to consider/four stages to go through when completing a Problem Question on the Direct Effect of Directives?
- Is the provision of EU law sufficiently clear, precise and unconditional?
- Has the implementation period expired?
- Is the claimant relying on the directive against the state (vertical direct effect of directives only - with a broad interpretation of the concept of ‘state’)?
- If direct effect is not possible, can any of the alternative mechanisms be used?
What is the importance of the first step?
In order for a Directive to have Direct Effect it must be sufficiently, clear, precise and unconditional. It needs to be clear who has to do what and the provision cannot be conditional upon policy decisions or previous obligations of the member state.
What is the importance of the second step?
In order for a Directive to have Direct Effect the implementation period for said Directive must have expired. If the implementation period is yet to expire then the Directive may still be implemented by the Member State and so it cannot be directly relied upon. Note that the typical implementation period for a directive is 2 years.
What is the importance of the third step?
Directives only have Vertical Direct Effect - that is to say they can be directly relied upon by individuals against the state. They do not have Horizontal Direct Effect - they cannot be relied upon by one individual/private party against another. Broad interpretation of the ‘state’ may allow an individual to rely upon a directive against a seemingly private body - ‘enumeration of the state’.
What are the potential alternative mechanisms individuals may be able to use if they cannot rely upon the direct effect of a directive (for whatever reason - (i) insufficiently clear, precise and unconditional (ii) implementation period not expired or (iii) horizontal not vertical direct effect)?
- Indirect Effect/Duty of Consistent Interpretation
- State Liability
(3. Broad conception of the term ‘state’ - considered above briefly) - General Principle (Mangold/Kuckudeveci)
What is indirect effect and how does it offer an alternative?
Indirect Effect or Consistent Interpretation may be able to achieve the same effects of direct effect - here the member state merely interprets existing national legislation in light of/compatibly with the intention of the relevant Directive.
What are the three pre-requisites/conditions for consistent interpretation?
- There has to be some national law that can be interpreted consistently with the aim of the directive
- The implementation period must have expired
- The consistent interpretation cannot be contra legem and cannot aggravate the criminal liability of individuals
What is State Liability and how does it offer an alternative?
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What are the three pre-requisites/conditions for State Liability?
- Does the provision of EU law confer a right on individuals?
- Is the breach of EU law sufficiently serious?
- Can we identify a causal link between the breach of EU law and the damage?
What are general principles of EU Law and how do they offer an alternative?
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Which cases demonstrated the potential influence of general principles in regards to direct effect of directives?
Mangold
Kuckudeveci
What is the broad interpretation of the state and how does it offer an alternative?
The principle issue with horizontal direct effect is that directives are addressed to Member States rather than individuals - this issue is somewhat circumnavigated if the ‘state’ is interpreted to include seemingly private bodies/entities.
Which case illustrated the potential to broadly construe the term ‘state’?
Foster v Charles
What else should be considered/mentioned in a PQ (if time)?
The prospect of incidental horizontal direct effect - Unilever Case.
