Direct Effect & Indirect Effect - pre-revision cards Flashcards
Van Gend en Loos (‘new legal order’)
Creation of direct effect – individuals can rely on EU law in national courts (treaty articles)
Van Gend en Loos (conditions)
- Sufficiently precise (Marshall v Southampton)
2. Unconditional (Molkerei-Zentrale Westfalen)
Defrenne v Sabena
Court expands the doctrine of direct effect to horizontal direct effect (treaty articles)
Van Duyn v Home Office
DE can apply to directives
- textual
- functional
(estoppel argument came in Ratti)
Pubblico Ministero v Ratti
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
Reyners v Belgium
Court employed DE to compensate for insufficient action on the part of EU legislative institutions (basic principle of non-discrimination deemed DE)
Riksskatteverket v Gharehveran
individual can rely on DE even if MS has fully exercised its discretion on implementation
SIMAP v Valencia Sindicatode Medicos Asistencia Publica
individual can rely on DE when state has chosen to exercise or not to exercise a particular discretionary option
Marshall v Southampton
no horizontal DE for directives (can’t use estoppel argument)
Facing Dori v Recreb
confirms no horizontal DE in directives
Foster v British Gas
emanation of the state:
- offer public service
- under control of the state
- special powers
Griffin v South West Water
Privatised industry was an emanation of the State since it provided a public service and was under the control of the SoS
Johnston v Chief Constable
Constitutionally independent authorities responsible for the maintenance of public order and safety
Doughty v Rolls-Royce Plc
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
National Union of Teachers v Governing body of St Mary’s Church of England Aided School
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
Kampelmann v Landschaftsverband
loosen the definition - no need to prove all 3
Rieser v. Asfinag
- special powers
- no control of the state, state just had supervision powers
- public service
(counted as emanation)
CIA Security International
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
Unilever v Central Food
Court said it isn’t horizontal DE, because you’re using directive in an exclusionary fashion
Arcor v Germany
Can use directive to dis-apply national law but not to give rights
Mangold v Helm
using a directive by saying it is a ‘general principle’ solidified by the directive
(also before period of implementation has expired)
Kücükdeveci v Swedex
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
Association de mediation sociale
- 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
Von Colson v Land Nordhein-Westfalen
Obligation to interpret national law in conformity with directives
Marleasing SA v La Comercial International de Alimentacion
INDIRECT EFFECT IN A HORIZONTAL SITUATION
Pfeiffer v Deutsches Rotes Kreuz
Interpretive obligation applies not only to national law that implements the directive, but to the national legal system as a whole
Grimaldi, Rolex
Regulation also subject to interpretative obligation
Kolpinghuis Nijmegen
prosecutor could not use the directive to interpret national law in such a way as to determine or aggravate the individual’s criminal liability
Luciano Arcaro
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”
Wagner-Miret
Can’t use indirect effect if it’s contra legem
national law literally exempted them, even though EU law said ‘every’
Dominguez v CICOA
Seems contra legem but they said it wasn’t
