Enforceability of EU Law Flashcards
Structure
- Does question relate to Non-Implementation / Faulty Implementation of a Directive
- Consider Direct Effect
- Consider Indirect Effect
- Consider State Liability
Define Direct Effect
Directly Effective provisions of EU Law that give rise to rights and obligations that an individual may enforce before their National Court
TFEU articles give rise to rights of individuals against the state in member states - Vertical
VAN GEND
TFEU articles give rise to rights and obligations between individuals - Horizontal
DARENNE v SABENA
Regulations have vertical direct effect
LEONESIO
Regulations have horizontal direct effect
ANTONIO MUNOZ
Directives have vertical direct effect with stricter criteria
VAN DUYN
VAN GEND Criteria - To be Directly Effective - EU Law must be…
- Sufficiently clear and precise
- Unconditional and
- Leave no room for discretion in implementation
RATTI - For directives to have vertical direct effect…
The Time Limit for implementation must have passed
Only public bodies are bound by directives
MARSHALL
To determine whether a Institution is Public body or an Emanation of the State, use the…
FOSTER v BRITISH GAS Guidelines (SD/SC/SP)
- STATUTORY DUTY to provide public services
- Under STATE CONTROL
- Body has SPECIAL POWERS for carrying out its functions (i.e.: Licensing powers)
Not all Emanation criteria MUST be satisfied
NUT v ST MARY’S SCHOOL
Water utility was, due to Govt regulation, statutory origin and public service
GRIFFIN v SOUTH-WEST WATER
Define Indirect Effect
The doctrine of indirect effect, developed in VON COLSON and MARLEASING, is the principle that national courts are under a duty to interpret national law in line with aims of relevant EU law regardless of when it came into force
MSs to take all measures to fulfil Union obligations down to courts
Art.4(3) TEU
Implementing Legislation - UK passes National Legislation intended to comply with obligations under a Directive - It will be interpreted to give effect to EU Directive
PICKSTONE v FREEMAN
Implementing Legislation - HoL allowed themselves to add words to give a purposive construction to avoid quibbly escapes to the spirit of EU rules - Increased Flexibility
LITSTER v FORTH DRY DOCK
Non-Implementing - UK law, passed before or after a directive, must be interpreted in line with EU law - Removed Distinction between Implementing and Non-Implementing
MARLEASING
Non-Implementing - Case where only difference from Marshall was private employer. HoL refused to interpret Sex Discrimination Act 1975 purposively, as it was not implementing EU law
DUKE v GEC RELIANCE
Where legislation has a clear conflict, courts will be reluctant to construct purposively
WAGNET MIRET
Where indirect effect would impose criminal liability, ECJ ruled no indirect effect
LUCIANO ARCARO
Define State Liability
FRANCOVICH v ITAL
Member State can be required to pay compensation to individuals for damage suffered as a result of the Member State’s failure to implement a Directive Properly
State Liability in FRANCOVICH was reformulated in FACTORTAME
- The breach infringes a rule of law intended to confer rights on individuals
- Breach is sufficiently serious
- Direct causal link between state breach and claimant’s loss
“Sufficiently serious” - Incorrect Implementation…
BRASSERIE DU PECHEUR
A breach that manifestly and gravely disregarded the limits on the exercise of its powers
Factors set out in BRASSERIE DU PECHEUR to determine Incorrect Implementation
- Clarity and precision of the rule breached
- Whether error of law is excusable (ie others have made mistake) - EX P BT
- Whether position taken by EU institution has contributed (eg guidelines issued)
Non-Implementation is always Sufficiently Serious
DILLENKOFER
Where a Court of Mandatory Jurisdiction fails to make an Art.267 reference, the breach is only “sufficiently serious” if failure to refer was in manifest breach of ECJ case law
KOBLER
