Direct Effect & Indirect Effect - pre-revision cards

Question 1

Van Gend en Loos (‘new legal order’)

Answer 1

Creation of direct effect – individuals can rely on EU law in national courts (treaty articles)

Question 2

Van Gend en Loos (conditions)

Answer 2

1. Sufficiently precise (Marshall v Southampton)

2. Unconditional (Molkerei-Zentrale Westfalen)

Question 3

Defrenne v Sabena

Answer 3

Court expands the doctrine of direct effect to horizontal direct effect (treaty articles)

Question 4

Van Duyn v Home Office

Answer 4

DE can apply to directives
- textual
- functional
(estoppel argument came in Ratti)

Question 5

Pubblico Ministero v Ratti

Answer 5

Directive is only directly effective after the period of implementation has expired

The deadline is set in a directive, and the MS must legislate, if they don’t do it in time, then individual can use direct effect

Question 6

Reyners v Belgium

Answer 6

Court employed DE to compensate for insufficient action on the part of EU legislative institutions (basic principle of non-discrimination deemed DE)

Question 7

Riksskatteverket v Gharehveran

Answer 7

individual can rely on DE even if MS has fully exercised its discretion on implementation

Question 8

SIMAP v Valencia Sindicatode Medicos Asistencia Publica

Answer 8

individual can rely on DE when state has chosen to exercise or not to exercise a particular discretionary option

Question 9

Marshall v Southampton

Answer 9

no horizontal DE for directives (can’t use estoppel argument)

Question 10

Facing Dori v Recreb

Answer 10

confirms no horizontal DE in directives

Question 11

Foster v British Gas

Answer 11

emanation of the state:

• offer public service
• under control of the state
• special powers

Question 12

Griffin v South West Water

Answer 12

Privatised industry was an emanation of the State since it provided a public service and was under the control of the SoS

Question 13

Johnston v Chief Constable

Answer 13

Constitutionally independent authorities responsible for the maintenance of public order and safety

Question 14

Doughty v Rolls-Royce Plc

Answer 14

They said there is sufficient control from the state, and that they had special powers but no public service and held they couldn’t rely on the rights for DE

Question 15

National Union of Teachers v Governing body of St Mary’s Church of England Aided School

Answer 15

The Court of Appeal suggested that the Foster test should not be seen as a statutory definition (reference to the term “included” in para.20), it should be interpreted broadly.

• in this case, public service and state control requirements were satisfied but ‘special powers’ was less clear

Question 16

Kampelmann v Landschaftsverband

Answer 16

loosen the definition - no need to prove all 3

Question 17

Rieser v. Asfinag

Answer 17

• special powers
• no control of the state, state just had supervision powers
• public service

(counted as emanation)

Question 18

CIA Security International

Answer 18

incidental horizontal DE:
• One party suffers a legal determine and the other gains a legal advantage of an unimplemented directive
• Directive does not itself impose an obligation
• Directive removed the protection of the national technical regulation and exposed them to potential liability under other provisions of national law

Question 19

Unilever v Central Food

Answer 19

Court said it isn’t horizontal DE, because you’re using directive in an exclusionary fashion

Question 20

Arcor v Germany

Answer 20

Can use directive to dis-apply national law but not to give rights

Question 21

Mangold v Helm

Answer 21

using a directive by saying it is a ‘general principle’ solidified by the directive

(also before period of implementation has expired)

Question 22

Kücükdeveci v Swedex

Answer 22

Court insisted that although it is in a directive, it is not the directive but rather the general principle which must be the basis of the examination

Question 23

Association de mediation sociale

Answer 23

• Court decided that the article that found way though directive cannot itself confer rights
• Even when article is given specific expression by a provision to EU law by the directive the same conclusion should be reached

Question 24

Von Colson v Land Nordhein-Westfalen

Answer 24

Obligation to interpret national law in conformity with directives

Question 25

Marleasing SA v La Comercial International de Alimentacion

Answer 25

INDIRECT EFFECT IN A HORIZONTAL SITUATION

Question 26

Pfeiffer v Deutsches Rotes Kreuz

Answer 26

Interpretive obligation applies not only to national law that implements the directive, but to the national legal system as a whole

Question 27

Grimaldi, Rolex

Answer 27

Regulation also subject to interpretative obligation

Question 28

Kolpinghuis Nijmegen

Answer 28

prosecutor could not use the directive to interpret national law in such a way as to determine or aggravate the individual’s criminal liability

Question 29

Luciano Arcaro

Answer 29

Court suggested narrowing of the principle of interpretation such that where an interpretation of national law in the light of a directive amounted to ‘the imposition on an individual of an obligation laid down in the directive”

Question 30

Wagner-Miret

Answer 30

Can’t use indirect effect if it’s contra legem

national law literally exempted them, even though EU law said ‘every’

Question 31

Dominguez v CICOA

Answer 31

Seems contra legem but they said it wasn’t