EU - Direct/Indirect Effect & Supremacy

Question 0

Art. 288(2) TFEU

Answer 0

Regulations are:

• generally applicable
• binding in their entirety
• directly applicable in all MS

Question 1

Art. 288(1)

Answer 1

Union has power to issue:

• regulations
• directives
• decisions
• recommendations/opinions

Question 2

Art. 288(3) TFEU

Answer 2

Directives are:

• binding as to the result sought
• binding upon MS addressed
• leaves national authorities with choice as to form/method of implementation

Question 3

Art 288(4) TFEU

Answer 3

Decisions are:

• binding in their entirety
• binding upon those to whom they are addressed

Question 4

Art 288(5) TFEU

Answer 4

Recommendations and opinions:

- have no binding force

Question 5

Van Gend en Loos

Answer 5

1. Treaty articles have direct effect
2. EU law is directly effective if:
   - sufficiently clear and precise
   - leaves no discretion to MS
   - capable of producing direct effects against an individual

Question 6

Costa v ENEL

Answer 6

EU law (regulations) is supreme, because:

• MS have voluntarily limited sovereignty (in limited fields)
• EU law must not vary from state to state

Question 7

Internationale Handelsgesellschaft

Answer 7

EU law is supreme, even overriding MS constitutional provisions

Question 8

Simmenthal

Answer 8

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

Question 9

Defrenne v SABENA

Answer 9

Treaty articles are capable of producing horizontal and vertical direct effects

Question 10

Politi

Answer 10

Regulations are capable of conferring rights on individuals

Question 11

Grad

Answer 11

Decisions are capable of producing direct effects, since otherwise the effectiveness (l’effet utile) would be undermined

Question 12

Van Duyn v Home Office

Answer 12

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

Question 13

Ratti

Answer 13

MS will only have failed to implement a directive if the time limit for its implementation has passed

Question 14

Marshall

Answer 14

Directives are only capable of producing vertical direct effects as they are addressed to MS as per wording of Art 288(3) TFEU

Question 15

Foster v British Gas

Answer 15

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

Question 16

Griffin v South-West Water

Answer 16

Water company is an emanations of the statue owing to government regulation

Question 17

NUT v ST Mary’s School

Answer 17

Not necessary to satisfy all 3 tests in Foster to be deemed an emanation of the state

Question 18

Art. 4(3) TEU

Answer 18

MS are under obligation to carry out Union’s aims

Question 19

Von Colson

Answer 19

1. Doctrine of indirect effect (directives) imposes duty on MS courts to interpret national law in line with objectives of any relevant EU law
2. Where EU law envisages a remedy to be available, MS must make sure the remedy available is effective (i.e. more than nominal)

Question 20

Wagner-Miret

Answer 20

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)

Question 21

Francovich v Italian Republic

Answer 21

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

Question 22

Brasserie du Pêcheur and Factortame

Answer 22

1. Only ‘sufficiently serious’ breaches of EU law will give rise to a claim for state liability
2. 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

Question 23

R v SoS for Transport ex parte Factortame

Answer 23

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

Question 24

Dillenkofer v Germany

Answer 24

Failure to implement a directive will always be regarded as a sufficiently serious breach

Question 25

British Telecommunications Plc

Answer 25

Imprecisely worded directive and absence of guidance from ECJ case law will excuse incorrect implementation; the breach will not be sufficiently serious

Question 26

Köbler v Austria

Answer 26

Where national (supreme) court disregards EU case law, this will always be sufficiently serious

Question 27

Pickstone v Freemans

Answer 27

UK courts will interpret national legislation in line with EU law

Question 28

Lister v Forth Dry Dock

Answer 28

UK courts may imply extra wording into national legislation to give effect to EU law

Question 29

Rolls Royce v Doughty

Answer 29

Public ownership is itself not sufficient to qualify as an emanation of the state

Question 30

Rewe-Zentralfinanz

Answer 30

Remedies/procedures available under national law for EU law must be no less favourable than those for ‘similar domestic actions’

Question 31

Levez

Answer 31

1. ‘Similar domestic actions’ are judged in terms of:
   - the purpose
   - the cause of the action
   - the essential characteristics
2. ‘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

Question 32

Van Schijndel

Answer 32

‘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’

Question 33

Foto-frost

Answer 33

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