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EU Law > Direct Supremacy and State Liability > Flashcards

Direct Supremacy and State Liability Flashcards

1
Q

The Principle of Subsidiarity

A

Actions done on an EU level act on items that cannot be sufficiently enacted on a member state basis

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2
Q

Principle of Proportionality

A

The EU shall not act beyond its powers drafted in the treaties

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3
Q

Direct Effect

A

Some provisions of EU law confer rights on individuals, which can be enforced in national courts

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4
Q

Direct Applicability

A

The doctrine whereby a treaty article or regulation is automatically a part of the member state’s legal system

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5
Q

Direct Applicability of Directives

A

Directives are not directly applicable as they must be implemented in national legislation

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6
Q

Direct Applicability of Treaty Articles

A

van Gend en Loos
Treaty Articles are directly effective. The EU treaty constituted a ‘new legal order’ that imposes both rights and obligations on individuals and the state.

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7
Q

EU law is supreme over national laws

A

Costa

Simmental (individuals gain rights at the cost of a MS sovereignty).

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8
Q

The scope of EU law is unlimited and takes place over MS primary law

A 
Solange I (Internationale handelsgesellschaft) 
- as well as secondary law (Costa)
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9
Q

Member State courts must set aside any domestic law that is contrary to EU law

A

Simmenthal

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10
Q

The acceptance of supremacy was voluntary and the UK agreed to be bound by the supremacy of EU law

A

Factortame

- UK agreed in the passing of the European Communities Act 1972

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11
Q

The UK Parliament chose to be bound by EU law and so courts must set aside conflicting domestic law

A

Thornburn v Sunderland CC

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12
Q

Domestic courts are under an obligation to follow EU laws because parliament has directed them to do so

A

R(Miller) v SS for Exiting the EU

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13
Q

So long as what the EU does is constant with rights protected under German constitution, German courts will accept the supremacy of EU law

A

Solange II

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14
Q

German Courts will intervene if the EU goes further than the treaties will allow and will not give the law in question supremacy

A

Brunner

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15
Q

If there is a clash with EU law, the Polish Law would be supreme

A

Polish Constitutional Court Judgement 2005

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16
Q

The conditions for direct effect of Treaty Articles and Regulations

A

Set out in VGL

  • Clear and Precise
  • Unconditional
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17
Q

The ‘clear and precise’ requirements of treaty direct effect

A

Set out in Coop Agricola Zootecnica

  • must give rise to identifiable rights
  • the obligation must be set out in unequivocal terms
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18
Q

The unconditional requirements of treaty direct effect

A

Set out in Coop Agricola Zootecnica

  • the provision does not depend on other measures
  • the state has no discretion in tis implementation
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19
Q

Horizontal and Vertical effect of Treaty Articles

A
  • Horizontal effect (Defrenne)
  • Vertical effect (VGL)
  • therefore obligations can be enforced against both individuals and the state.
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20
Q

Positive and negative direct effect of treaty articles

A
  • can impose a negative obligation (VGL)

- can impose a positive obligation (Lutticke (Alfons))

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21
Q

Direct effect of reccomendations and opinions

A
  • no direct effect as they are not binding (Grimaldi)
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22
Q

Direct Effect of Regulations

A
  • Regulations are directly applicable
  • Regulations are directly effective if they satisfy the conditions set out in VGL (clear, precise + unconditional)
  • they have both vertical and horizontal direct effect.
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23
Q

The direct effect of Directives

A
  • only have vertical direct effect (van Duyn)

- not horizontal direct effect (Marshall v Southampton AHA) because they are implemented by member states.

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24
Q

Conditions for the direct effect of directives

A

Article 288

  • sufficiently clear, precise + unconditional (VGL)
  • It must have been implemented incorrectly (Ratti)
  • The implementation date must have passed (Ratti)
  • The action must be against the state, not the emanation of the state (Marshall v Southampton)
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25
Q

The scenario’s of an incorrectly implemented directive

A
  • It has not been implemented at all (Ratti)
  • It has been implemented partially or incorrectly (VNO v Inspecteur)
  • It has been correctly implemented but incorrectly applied by national authorities (Marks + Spencer)
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26
Q

What is an ‘emanation of the state’

A

Two tests (Foster v British Gas)

  • Tripartite test: cumulative
  • Bipartite test: only one must be satisfied (Kampelmann)
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27
Q

The Tripartite test for the emanation of a state

A
  • The body provides a public service
  • The service is under the control of the state
  • For the purposes of providing the service, the body has special powers beyond those which result from the normal rules applicable between individuals.
28
Q

The Bipartite test for the emanation of the state

A
  • The body has special powers beyond those which result from the normal rules applicable between individuals
  • The service is under State control.
29
Q

In the UK legal system, the tripartite test for an emanation of the state should be applied

A

Lord Mustill: Doughty v Rolls Royce.

30
Q

Examples of an emanation of the state

A
  • Tax authorities (Becker)
  • Local and regional authorities (Fratelli)
  • Police forces (Johnston)
  • Health Authorities (Marshall)
  • Universities (Scholz)
  • Privatised Water Companies (Griffin)
  • Magistrates (Constanzo)
31
Q

A government owned company producing cars was deemed not to be an emanation of the state

A

Doughty v Rolls Royce

32
Q

‘Collateral’ horizontal direct effect as directives is possible

A

Wells: environmental impact planning forced the suspension of quarry activities

33
Q

The CJEU attempts to solve the limitations of Directive Direct Effect

A
  • Expansion of the definition of an emanation of the state
  • Created the principles of Indirect Effect
  • Developed the doctrine of state liability
34
Q

Indirect effect is relevant where a directive doesn’t have Direct Effect:

A
  • A directives provisions can be used to interpret national legislation as far as possible (Marleasing)
  • Interpretation must be in a way that is in conformity with the directive itself (von Colson)
35
Q

Indirect effect of Directives in the UK

A
  • A wide purpose approach (Lister v Forth)
  • Can have words read into it (Pickstone v Freemans)
  • Cannot go as far as distorting the meaning of the legislation (Duke v GEC Reliance)
36
Q

Rules about the application of Indirect Effect in the UK

A

Rule provided in HMRC v IDT card services

  • clear legislation can be interpreted
  • interpretation can change the meaning of the legislation
  • Interpretation must not re-write the legislation
  • interpretation cannot force a court to make policy changes.
37
Q

Incidental Indirect Effect

A

Contract of sale between two parties (Unilever)

38
Q

General Principles of EU law can be used in disputes between individuals

A

Mangold

  • although dissociated in Felix
  • Reaffirmed in Egenberger (Religious Discrimination)
39
Q

In disputes between two people, national courts are not obliged to display provisions of national law that are contrary to a directive

40
Q

Fundamental Rights are enshrined in general principles of human law

41
Q

The CJEU has no jurisdiction over domestic human rights

A

Stork

- National Constitutions and International Human Rights only inspire EU law (Nold)

42
Q

The EU impliedly protects human rights

A

Internationale Handelsgesellschaft

43
Q

The institutions of the EU must comply with the ECHR

44
Q

The rights of prisoners to vote was within the scope of EU law

45
Q

Student activists promoting abortion services were not governed by EU laws as they were not economically tied to the claimant

46
Q

Charter of Fundamental Rights 2000

A
  • Enforced in the Lisbon Treaty 2009

- The charter does not create new rights, merely affirms them

47
Q

Polish actions against it’s judiciary were in conflict with fundamental rights

A

Commission v Poland

48
Q

The scope of the charter of fundamental rights binds not only the creation of law but also the application of law

49
Q

State Liability: There is no duty on member states to introduce remedies for an EU law claim

50
Q

Two requirements need to be met for an EU law remedy to be applied under State Liability

A

Equivalence: the remedy is the same for EU and Domestic Law
Effectiveness: the remedy should not be impossible or excessively difficult in practice to claim

51
Q

SL: The domestic court is to set aside the domestic remedy for an EU remedy

A

van Schijndel

52
Q

SL: It is for the national courts to interpret the procedural rules governing action brought before them

53
Q

SL: The union may be liable for damages under EU aw and conditions are common to the general principles of EU States

A

Art 340

- The Union may have to pay an individual compensation if it breaches EU law (Zuckerfabrik)

54
Q

State liability definition

A

Francovich
Refers to the principles according to which, individuals can recover compensation from a member state where they have suffered a loss caused b the MS’s failure to fulfil its obligations under EU law

55
Q

The conditions for state liability for a breach concerning a total lack of implementation were outlined in

A

Francovich

56
Q

The conditions for state liability for a breach concerning a partial implementation were outlined in

A

Brasserie du Pecheur

57
Q

The Francovich Conditions

A
  • The directive should entail the ‘grant of rights’ to individuals
  • It should be possible to ‘identify the content’ of those rights
  • There must be a ‘casual link’ between the state’s breach and the loss suffered.
58
Q

Brasserie du Pecheur conditions

A
  • The directive was intended to ‘confer rights’ on individuals
  • There must be a direct ‘casual link’ between the breach and the damage
  • There must be a ‘sufficiently serious’ breach
59
Q

Constituting a sufficiently serious breach

A

The state must have manifestly and gravely disregarded the limits of its discretion (Brasserie)

60
Q

Factors to take into account to establish a sufficiently serious breach concerning a partial implementation (Brasserie)

A
  • The discretion available to the member states
  • The clarity and precision of the rule breached (ex p BT)
  • Whether the MS committed the breach intentionally, or the incorrect implementation was excusable (ex parte BT)
  • Any responsibility that EU institutions may have had in providing guidance to Member States
  • How other member states have dealt with the same issue
61
Q

A failure to implement a directive is automatically a sufficiently serious breach

A

Dillenkofer

62
Q

The breach of failing to implement a directive may apply not only to legislative and executive power, but also to the judiciary

63
Q

A sufficiently serious breach would only apply to situations where MSs enjoyed limited discretion or no discretion at all.

A

Hedley Lomas

64
Q

Article allowing the commission to bring proceedings before the CJEU against a MS for not fulfilling its treaty obligations.

65
Q

Article allowing a MS to bring proceedings against another MS

66
Q

Specific Conditions must be met before Indirect Effect can be applied:

A
  • The implementation date of the directive must have passed (Adeneler)
  • IE can apply both vertically (von Colson) and Horizontally (Harz)
  • All national legislation can be interpreted regardless of whether they were passed before or after the directive under discussion (Marleasing)
  • Interpretation of national legislation should go as far as possible (Marleasing)
67
Q

Interpretation, under Indirect effect, should go as far as possible

A

Set out in (Marleasing), provided:

  • it does not lead to making an interpretation that is contra legem i.e. does not worsen the position of an individual in criminal proceedings (Pupino)
  • it is not used to contravene a genera principle of EU law, e.g. certainty (Klopinghuis Nijmegen)
  • It does not distort the meaning of the original legislation (Wagner Miret)
  • IE will not be possible if there is no national legislation to interpret (Francovich)

EU Law (4 decks)

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