essay plan version 2

Question 1

what is the issue for part A?

Answer 1

whether the directive has direct effect when the country has not yet taken measures to implement the directive

Question 2

Part A

What is direct effect?

Answer 2

describes the capacity of a provision of EU law to be invoked and relied upon by individuals before a national court

Question 3

Part A

How is it determined whether a provision of a directive can have direct effect?

Answer 3

Van Gend en Loos v Nederlandse

is the provision sufficiently clear, precise and unconditional

Question 4

Part A

What is the relevance of the transposition date of a directive and direct effect?

Answer 4

If the transposition date has passed, and there is an absence of national measures to implement the aims of the directive, then the provision will have direct effect - Ratti

if the date of transposition has not passed yet then it will not have direct effect

Question 5

Part A

What are the characteristics of the direct effect of directives?

Answer 5

Directives can only have vertical direct effect - Marshall

So defendant must be the state or an emanation of the state

Question 6

Part A

What is the test for an emanation of the state?

Answer 6

Foster and re-established in Farrell

Is the defendant under the authority or control of the state?

OR

does it provide a public service for which it has special powers beyond those applicable to normal rules applying between individuals?

Question 7

Part A

What is the application of the law to the scenario?

Answer 7

the provision satisfies the requirements of Van Gend en Loos - sufficiently clear, precise and unconditional

The transposition date of the directive has passed and there is an absence of national measures to implement the aims of the directive

So there is direct effect

Question 8

Part A

What is the conclusion?

Answer 8

the directive can be relied upon by Greek citizens in a vertical situation

Question 9

Part B

What is the issue for part B?

Answer 9

To determine whether Elena and Andreas’ employers are an emanation of the state to see if they can rely on the provisions of the directive against their employers

Question 10

Part B

What is the test for an emanation of the state?

Answer 10

Foster - re-interpreted in Farrell

Is the defendant under the authority or control of the state?

OR

does it provide a public service for which it has special powers beyond those applicable to normal rules applying between individuals?

Question 11

Part B

Is Elena’s employer an emanation of the state?

Answer 11

Yes - it is under the supervision of the ministry of health

meaning it is under the authority of the state

Question 12

Part B

What is the conclusion in relation to Elena?

Answer 12

Since her employer is an emanation of the state, it is a vertical situation

This means the provision has direct effect and can be invoked against her employer

Question 13

Part B

Is Andreas’ employer an emanation of the state?

Answer 13

No - she is a surgeon at a private hospital

Question 14

Part B

What is the conclusion in relation to Andreas?

Answer 14

Andreas’ employer is not an emanation of the state - therefore there is no direct effect since it is a horizontal situation.

Andreas cannot invoke the provision against her employer

Question 15

Part C

What is the only precondition for a regulation to have direct effect?

Answer 15

The provision must be sufficiently clear, precise and unconditional

Question 16

Part C

What are the characteristics of direct effect of a regulation?

Answer 16

it can have both horizontal (Munoz) and vertical (Leonesia) direct effect

Question 17

Part C

What are the other differences between regulations and direct effect?

Answer 17

Regulations are directly applicable - they have immediate legal effect within national legal orders

Unlike directives there is no transposition date that needs to have expired in order for them to have direct effect.

Question 18

Part C

What is the application/conclusion?

Answer 18

If the provision was from a regulation rather than a directive then both Elena and Andreas would have been able to rely on it against their employers

They would not have to ensure than a transposition date had passed and would not have to prove that their employers were an emanation of the state