Direct Effect, Indirect Effect and State Liability

Question 1

What is direct effect?

Answer 1

Directly effective provisions of EU Law give rise to rights and obligations that an individual may enforce before their national courts.

Question 2

Treaty Articles have vertical direct effect

Answer 2

Van Gend

Question 3

Treaty Articles have horizontal direct effect

Answer 3

Defrenne

Question 4

Regulations have vertical and horizontal direct effect

Answer 4

Leonesio; Frumar

Question 5

Directives only have vertical direct effect

Answer 5

Van Duyn; Marshall

Question 6

Which case showed Directives lack of horizontal direct effect?

Answer 6

Duke

Question 7

Which two other cases confirmed Directive’s lack of horizontal direct effect?

Answer 7

Faccini Dori; Vaneetweld

Question 8

What are the Van Gend criteria?

Answer 8

Clear, precise and unconditional

Question 9

Which case held that Directives must have passed their date of implementation?

Answer 9

Ratti

Question 10

What are the three criteria for an ‘emanation of the state’?

Answer 10

Carrying out a public service pursuant to a statutory duty, under state control, and special powers (Foster)

Question 11

Which two cases stated that not all three criteria necessarily co-exist for an emanation of the state?

Answer 11

NUT and Griffin

Question 12

What are the conditions for an emanation of the state laid down in Farrell?

Answer 12

The organisation must carry out a public service task and either it satisfies the second (state control) or third (special powers) condition.

Question 13

What is indirect effect?

Answer 13

The principle of indirect effect was developed by the ECJ in response to concerns about Directives’ lack of horizontal direct effect, to ensure the protection of citizens’ rights under EU Law. The doctrine was developed in Von Colson.

Question 14

Which two cases showed the UK approach to the doctrine of indirect effect as developed in Von Colson concerning implementing legislation?

Answer 14

Pickstone and Litster

Question 15

Which two cases developed the doctrine of indirect effect further to include the interpretation of non-implementing legislation?

Answer 15

Marleasing and Pfeiffer

Question 16

Which case showed the UK courts willingness to follow the developed doctrine of indirect effect, i.e. concerning both implementing and non-implementing legislation?

Answer 16

Webb v EMO Air Cargo

Question 17

What are the two situations in which indirect effect is limited?

Answer 17

Where the provisions of a Directive conflict with national law (Wagner Miret) and where applying the Directive would lead to criminal liability (Luciano Arcaro)

Question 18

What is the principle of State liability?

Answer 18

It was a principle developed in Francovich given arguments that there should be some way of allowing individuals who had suffered loss in circumstances in which they had to rely on direct and indirect effect to claim against the State itself.

Question 19

What are the three Francovich conditions for State liability?

Answer 19

The Directive must confer a right to individuals, the right must be identifiable within the provisions of the Directive and there must be a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties.

Question 20

Which case modified the Francovich conditions?

Answer 20

Brasserie du Pêcheur/Factortame: it extended the principle beyond failure to implement a Directive to indicate that damages could be claimed for breach of any type of EU Law by a Member State. Secondly, where Member State has wide discretion, the claimant must prove the breach is ‘sufficiently serious’.

Question 21

What is the meaning of ‘sufficiently serious’ in cases of incorrect implementation?

Answer 21

For incorrect implementation (British Telecom), it must be a breach that manifestly and gravely disregarded the limits on the exercise of the State’s power. Three factors: (a) the clarity and precision of the rule breached; (b) whether the error of law is excusable, e.g. has another Member State made the same error; (c) whether the position taken by an EU institution has contributed.

Question 22

What is the meaning of ‘sufficiently serious’ in cases of failed implementation?

Answer 22

Failure to implement is in itself a sufficiently serious breach (Dillenkofer)

Question 23

What is the meaning of ‘sufficiently serious’ in cases of failure to refer under Article 267 TFEU?

Answer 23

The breach will only be sufficiently serious if the failure to refer was made in manifest breach of ECJ case law (Köbler).

Question 24

Which case covers State liability in the case of administrative failures?

Answer 24

R v MAFF