Direct & Indirect effect

Question 1

Direct applicability

Answer 1

• Fully applicable in the Member State without measures being taken to implement it

Question 2

Direct Effect

Answer 2

• Confers immediate rights on individuals which can be enforced in national courts

Question 3

Van Gend en loos

Answer 3

The claimants, van Gend en Loos, imported chemicals from Western Germany to the Netherlands where they were asked to pay import taxes at Dutch customs, the defendants, which they objected to on the grounds it ran contrary to the European Economic Community’s prohibition on inter-State import duties, as per Article 12 of the Treaty of Rome. The defendants contended that as the claimants were not a natural person but a legal person, they could not claim such rights.

The European Court of Justice found for the claimants, viewing that the European treaties gave rise to rights for legal and natural persons alike. Further, the Court viewed that European Community law ‘not only imposes obligations on individuals but is also intended to confer upon them rights’.

Question 4

Van duyn v home office 1974

Answer 4

The claimant sought a work permit with the Church of Scientology to work in the UK under a Directive. However, she sought to invoke Article 3 Directive 64/221 to challenge the Home Office’s refusal. Under EU Law, Member States are allowed to deny EU nationals rights of entry and residence only on the grounds of public policy, public security, and public health. Moreover, Article 3 64/221 provided that measures taken on the grounds of public policy must be based exclusively on the ‘personal conduct’ of the person concerned.

Held:
In conclusion, despite the lack of clarity as to the scope of the concept of ‘personal conduct’, the Court of Justice of the European Union held that Mrs. Van Duyn was entitled to invoke the Directive directly before her national court. Moreover, if the Directive did not have direct effect, then it would lose its relevance. Therefore, Directives had to have direct effect.

Question 5

The supremacy of EU law

Answer 5

Established in Costa v ENEL – “the law stemming from the treaty… could not… be overridden by domestic legal provisions, however framed”

Question 6

Internationale handelsgesellscharft

Answer 6

Internationale handelsgesellscharft
• EU law takes precedents over national constitutions
• Including fundamental rights provided by them

Question 7

Indirect effect

Answer 7

A principle of interpretation whereby the courts of the member states of the European Union (EU) must interpret national laws (particularly any that implement EU directives) as far as possible in a manner that is consistent with the provisions of EU law even if they do not have direct effect.

• Indirect effect was first established in Von Colson to Re equal treatment directive

Question 8

Three resulting questions for indirect effect

Answer 8

1. Can indirect effect apply horizontally between private parties?… yes
   o Harz – indirect effect available against a private party
2. Does indirect effect apply where the national law was not enacted to implement an EU measure?
   o Marleasing – arts 1261 and 1275 of the Spanish code enacted before the directive
   o Indirect effect applies whether the provisions in question were adopted before or after the directive
3. What is the precise scope of in so far as it is given discretion to do under national law?
   o This means when national law explicitly contradicts EU law there is no indirect effect

Question 9

What is direct effect?

Answer 9

Direct effect is one of three mechanisms that allows individuals to enforce their EU rights prescribed by EU legislation

It is directly enforced by national courts

Question 10

Types of direct effect?

Answer 10

Vertical direct effect - legislation can be enforced before a national court, against the state or emanation of state.

Horizontal direct effect - the legislation can be enforced before a national court, against private individuals.

Question 11

How to make use of direct effect?

Answer 11

1. Establish that the law in question is capable of being directly effective as not all law will be
2. Show that the capable law meets the relevant criteria needed to make use of direct effect
3. Just for directives: prove the defendant is a state body or emanation of the state

Question 12

Direct

Treaty articles

Answer 12

Primary legislation

Is capable of being horizontal and vertically directly effected

Van gend (vertical)
Defranne (horizontal)

Question 13

Direct

Regulation

Answer 13

Secondary legislation

Is capable of being horizontal and vertically directly effected

Leonesio (vertial)
Antonio (horizontal)

Question 14

Direct

Directives

Answer 14

Secondary legislation

Vertical direct effect only

Van Duyn
Marshall v Southampton

Question 15

Direct

Criteria for regulations & treaty articles

Answer 15

The same criteria is used because they offer member states no discretion in implementation

Van gend criteria

The law concerned must be:

1. Clear
2. Precise
3. Unconditional

Question 16

Direct

Criteria for directives

Answer 16

Directives require the exercise of discretion for implementation and so they have two criteria’s that need to be satisfied

1. Van gend criteria: law must be clear, precise and unconditional
2. Ratti criteria: the directive must have passed the deadline for implementation

Question 17

Direct

State/ emanation of state criteria (foster v British Gas)

Answer 17

1. D must be under a statutory duty to provide a pubic service (e.g. rolls- Royce was not in doughty v rolls Royce despite sate control of the D)
2. D must be under state regulation
3. D must have special powers (e.g. the power to install a temporary hosepipe ban in griffin)

Question 18

Indirect

Types of legislation

Answer 18

Implementing legislation - legislation where the time to implement the EU directive has expired

Non implementing legislation - legislation where the time to implement the EU directive has not yet expired

Question 19

Limits to indirect effect

Answer 19

1. Where national legislation conflicts with EU law (Wagner miret)
2. Where indirect effect would impose criminal liability (Accaro)

Question 20

Von Colson

Answer 20

Ms Van Colson had applied for a job with the prison service and Ms Harz had applied for a job with a private company. However, both had been rejected.

The German court found that they had been rejected on grounds of sex. Moreover, the rejection had not been justified. As a result, the German court ruled they were entitled to compensation in the form of travelling expenses. However, it was argued that compensation in this form did not meet the requirements of Equal Treaty Directive 76/207.

Held:
In conclusion, it was held that it falls on the courts to interpret national law in such a way as to ensure that the objectives of the Directive are achieved.