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EU > Enforceability of EU Law > Flashcards

Enforceability of EU Law Flashcards

1
Q

Structure

A
  1. Does question relate to Non-Implementation / Faulty Implementation of a Directive
  2. Consider Direct Effect
  3. Consider Indirect Effect
  4. Consider State Liability
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2
Q

Define Direct Effect

A

Directly Effective provisions of EU Law that give rise to rights and obligations that an individual may enforce before their National Court

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3
Q

TFEU articles give rise to rights of individuals against the state in member states - Vertical

A

VAN GEND

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4
Q

TFEU articles give rise to rights and obligations between individuals - Horizontal

A

DARENNE v SABENA

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5
Q

Regulations have vertical direct effect

A

LEONESIO

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6
Q

Regulations have horizontal direct effect

A

ANTONIO MUNOZ

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7
Q

Directives have vertical direct effect with stricter criteria

A

VAN DUYN

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8
Q

VAN GEND Criteria - To be Directly Effective - EU Law must be…

A
  • Sufficiently clear and precise
  • Unconditional and
  • Leave no room for discretion in implementation
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9
Q

RATTI - For directives to have vertical direct effect…

A

The Time Limit for implementation must have passed

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10
Q

Only public bodies are bound by directives

A

MARSHALL

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11
Q

To determine whether a Institution is Public body or an Emanation of the State, use the…

A

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)
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12
Q

Not all Emanation criteria MUST be satisfied

A

NUT v ST MARY’S SCHOOL

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13
Q

Water utility was, due to Govt regulation, statutory origin and public service

A

GRIFFIN v SOUTH-WEST WATER

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14
Q

Define Indirect Effect

A

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

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15
Q

MSs to take all measures to fulfil Union obligations down to courts

A

Art.4(3) TEU

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16
Q

Implementing Legislation - UK passes National Legislation intended to comply with obligations under a Directive - It will be interpreted to give effect to EU Directive

A

PICKSTONE v FREEMAN

17
Q

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

A

LITSTER v FORTH DRY DOCK

18
Q

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

A

MARLEASING

19
Q

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

A

DUKE v GEC RELIANCE

20
Q

Where legislation has a clear conflict, courts will be reluctant to construct purposively

A

WAGNET MIRET

21
Q

Where indirect effect would impose criminal liability, ECJ ruled no indirect effect

A

LUCIANO ARCARO

22
Q

Define State Liability

A

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

23
Q

State Liability in FRANCOVICH was reformulated in FACTORTAME

A
  • 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
24
Q

“Sufficiently serious” - Incorrect Implementation…

A

BRASSERIE DU PECHEUR

A breach that manifestly and gravely disregarded the limits on the exercise of its powers

25
Q

Factors set out in BRASSERIE DU PECHEUR to determine Incorrect Implementation

A
  • 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)
26
Q

Non-Implementation is always Sufficiently Serious

A

DILLENKOFER

27
Q

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

A

KOBLER

EU (7 decks)

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