EU - Direct/Indirect Effect & Supremacy Flashcards
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Art. 288(2) TFEU
Regulations are:
- generally applicable
- binding in their entirety
- directly applicable in all MS
Art. 288(1)
Union has power to issue:
- regulations
- directives
- decisions
- recommendations/opinions
Art. 288(3) TFEU
Directives are:
- binding as to the result sought
- binding upon MS addressed
- leaves national authorities with choice as to form/method of implementation
Art 288(4) TFEU
Decisions are:
- binding in their entirety
- binding upon those to whom they are addressed
Art 288(5) TFEU
Recommendations and opinions:
- have no binding force
Van Gend en Loos
- Treaty articles have direct effect
- EU law is directly effective if:
- sufficiently clear and precise
- leaves no discretion to MS
- capable of producing direct effects against an individual
Costa v ENEL
EU law (regulations) is supreme, because:
- MS have voluntarily limited sovereignty (in limited fields)
- EU law must not vary from state to state
Internationale Handelsgesellschaft
EU law is supreme, even overriding MS constitutional provisions
Simmenthal
Where domestic law conflicts with national law, MS court does not have to wait for supreme court/P of MS to overrule it; it can assume it is automatically set aside
Defrenne v SABENA
Treaty articles are capable of producing horizontal and vertical direct effects
Politi
Regulations are capable of conferring rights on individuals
Grad
Decisions are capable of producing direct effects, since otherwise the effectiveness (l’effet utile) would be undermined
Van Duyn v Home Office
Directives are capable of having VERTICAL direct effect, provided:
- it clearly bestows identifiable rights on the individual
- the MS has failed to implement it/implemented it incorrectly
Ratti
MS will only have failed to implement a directive if the time limit for its implementation has passed
Marshall
Directives are only capable of producing vertical direct effects as they are addressed to MS as per wording of Art 288(3) TFEU
Foster v British Gas
Directives may be enforced against the state where it is acting in a quasi-private capacity, e.g. as an employer, provided it is an emanations of the state:
- carries out public service pursuant to a statutory duty
- service is under state control
- body has special powers to carry out it’s functions, e.g. grant licences
Griffin v South-West Water
Water company is an emanations of the statue owing to government regulation
NUT v ST Mary’s School
Not necessary to satisfy all 3 tests in Foster to be deemed an emanation of the state
Art. 4(3) TEU
MS are under obligation to carry out Union’s aims
Von Colson
- Doctrine of indirect effect (directives) imposes duty on MS courts to interpret national law in line with objectives of any relevant EU law
- Where EU law envisages a remedy to be available, MS must make sure the remedy available is effective (i.e. more than nominal)
Wagner-Miret
Where there is obvious conflict with a directive and national law, the courts will apply national law; however, the state may still be liable for failure to properly implement the directive (Frankovich)
Francovich v Italian Republic
EU citizens may sue MS for failure to implement a directive properly, provided:
- the directive confers rights on individuals
- the content of those rights is clear from the directive
- there is a causal link between MS breach and harm suffered by individual
Brasserie du Pêcheur and Factortame
- Only ‘sufficiently serious’ breaches of EU law will give rise to a claim for state liability
- Sufficiently serious breaches are those where MS has ‘gravely and manifestly disregarded the limits of it’s power’, having regard to:
- clarity and precision of the rule breached
- measure of discretion left to the authorities
- whether infringement was intentional or involuntary
- whether EU institution has contributed to the infringement
R v SoS for Transport ex parte Factortame
In the context of the UK, the more fundamental the law that is breached (treaty v directive), the more likely a breach is to be regarded as sufficiently serious
Dillenkofer v Germany
Failure to implement a directive will always be regarded as a sufficiently serious breach
British Telecommunications Plc
Imprecisely worded directive and absence of guidance from ECJ case law will excuse incorrect implementation; the breach will not be sufficiently serious
Köbler v Austria
Where national (supreme) court disregards EU case law, this will always be sufficiently serious
Pickstone v Freemans
UK courts will interpret national legislation in line with EU law
Lister v Forth Dry Dock
UK courts may imply extra wording into national legislation to give effect to EU law
Rolls Royce v Doughty
Public ownership is itself not sufficient to qualify as an emanation of the state
Rewe-Zentralfinanz
Remedies/procedures available under national law for EU law must be no less favourable than those for ‘similar domestic actions’
Levez
- ‘Similar domestic actions’ are judged in terms of:
- the purpose
- the cause of the action
- the essential characteristics - ‘Less favourable’ domestic actions are judged in terms of:
- role of provision in the procedure as a whole
- operation of the rule before different national courts
- special features of the procedure before different national courts
Van Schijndel
‘Less favourable’ conditions will not arise where national laws prevent EU law from being raised by virtue of a restraint on the court not to raise points ‘of its own motion’
Foto-frost
National court may not declare EU act invalid because:
- Art. 267 TFEU exists to ensure EU law is applied uniformly
- Art. 263 TFEU is the only method by which an EU act may be declared invalid
- ECJ is the best place to determine validity of acts, as EU institutions may then participate in decision
