essay question plan

Question 1

What is the question for part A?

Answer 1

can Greek citizens rely on the provision in the EU directive before a Greek court in the absence of national measures that implement the said Directive?

Question 2

what are the key issues you need to address for part A?

Answer 2

What are the characteristics of direct effect?
When can they have direct effect?
Horizontal vs horizontal? - emanation of the notion of state - Foster and Farrell
Do the conditions for direct effect apply to article 6(b)?
Significance of the transposition deadline and its impact on the directive’s enforceability

Question 3

what is the conclusion for part A?

Answer 3

Greek citizens can rely on the provisions of the directive so long as the transposition period has expired, the provisions are clear, precise and unconditional and the defendant is a state organisation (vertical)

apply this to the situation

Question 4

What is the question for part B?

Answer 4

Please advise Elena and Andreas if they can rely on Article 6(b) of EU directive against their respective employers

Question 5

what are the key issues to address in part B?

Answer 5

This is for a directive so must be vertical direct effect
Must determine whether Elena’s employer is an emanation of the state using the Farrell/Foster test - yes
What are the implications of a vertical situation for the direct effect of the directive? - it has direct effect
Assess whether Andreas/ employer is an emanation of the state using the Farrell/Foster test - no
What are the consequences of a horizontal situation for direct effect of a directive - there is no direct effect

Question 6

what are the conclusions for part B?

Answer 6

Elena can rely on the directive against her employer - it will have direct effect
Andreas cannot

Question 7

What is the question for part C?

Answer 7

how would your answer differ if the provision that the average working time for a 7 day period, including overtime, shall not exceed 48 hours was included in an EU Regulation and not in an EU Directive?

Question 8

what are the key issues that need to be addressed in part C?

Answer 8

what are the requirements for a regulation to have direct effect and direct applicability?
How is this different to the requirements for a directive?
What kind of direct effect do regulations have?
Immediate and automatic legal effect of regulations and its implications for Elena and Andreas