EU Law and National Courts

Question 1

Direct Effect

Answer 1

An EU measure has direct effect when it confers immediate rights on individuals which national courts must then enforce.
(EU measure= EU treaty, secondary legislation, other binding act of EU)

Question 2

Direct effect was first established by

Answer 2

Van Gend en Loos

Question 3

Van Gend en Loos established

Answer 3

DE of EU Law

That the rights in treaty articles gave rights to individuals that national courts had to protect

Question 4

Reasoning of Van Gend en Loos

Answer 4

The EEC Treaty was more than just an agreement between the MS- it created ‘a new legal order’ of international law, for the benefit of which MS had limited their sovereign rights.
Subjects of new legal order not only MS but also nationals.
Imposed obligations on individuals but also granted them rights.

Question 5

Two requirements for a provision of a treaty to have DE

Answer 5

Van Gend en Loos:

1) must be clear and precise
2) must be unconditional (MS does not have to implement it)

Question 6

Treaty articles can have horizontal DE and vertical DE

Answer 6

Horizontal= against individuals (Defrenne no 2)
Vertical= against state (VGL)

Question 7

Do treaty articles have DE only when they impose a negative obligation?

Answer 7

No, also when they impose a positive obligation.

Question 8

Can regulations have DE?

Answer 8

Regulations have direct applicability (automatically part of MS legal system, does not need to be implemented).
Has DE if satisfy VGL criteria, both horizontally and vertically.

Question 9

Can decisions have DE?

Answer 9

Yes, if they satisfy the VGL criteria (Franz Grad).

However, a decision can only be relied upon against the party to whom it was addressed.

Question 10

Difficulties with directives having DE?

Answer 10

They do not satisfy the VGL criteria as their implementation is left to MSs (therefore they are not unconditional).

Question 11

Can recommendations and opinions have DE?

Answer 11

No because they are not binding.

Question 12

Van Duyn

Answer 12

Established that a directive could have DE

Question 13

Response of French and German courts to Van Duyn

Answer 13

They rejected it, accused CJ of overstepping jurisdiction, refused to directives DE.

Question 14

Ratti rationale

Answer 14

CJ adopted new rationale for giving directives DE- that a MS cannot rely on its own failure to perform the obligations that a directive entails.

Question 15

Conditions for directives to have DE

Answer 15

1. The implementation date must have passed
2. If deadline passed, directive will be capable of having DE if:
   a) it has not been implemented at all (Ratti) or
   b) has been implemented partially or incorrectly (VNO V Inspectuer)
   c) has been correctly implemented, but incorrectly applied by national authorities, such that it fails to achieve the purpose it was supposed to achieve (M&S v Commissioner)
3. The action must be against the State or an emanation of the State

Question 16

Foster v British Gas

Answer 16

Does British Gas count as the State?

The ECJ provided 2 tests (the tripartite and bipartite test) to determine whether a body is the emanation of the State.

Question 17

Farrell v Motor Insurers’

Answer 17

Clarified the test to determine if a body is the State.

1) Entities which are legal persons governed by public law that are part of the State in the broad sense.
2) Entities which are subject to the authority or control of a public body.
3) Entities which have been required, by such a public body, to perform a task in the public interest and have been given, for that purpose, special powers.

Question 18

In some circumstances directives can have DE on a private party by triangulation.

Answer 18

Wells- a woman wanted a quarry near her home suspended, so enforced a Directive- the consequences of which impacted the quarry owners (a third party to the proceedings).

Question 19

Criminal Proceedings Against Berlusconi

Answer 19

A directive cannot be given direct effect in order to render someone criminally liable where that person would not otherwise have been.
Also cannot have horizontal DE against an individual

Question 20

Marshall Principle

Answer 20

Directives cannot be given DE against a private party (horizontal DE).

Question 21

Incidental horizontal effect

Answer 21

First established in CIA Security.
It is where the state fails to comply with an obligation under a directive to notify the Commission of national regulatory measures, and this failure is relied upon in a legal action against a private party to render those measures inapplicable.
eg. the States failure to carry out their obligation under the Directive renders the regulatory measures inapplicable and therefore unenforceable in national courts against individuals as a result.

Question 22

The Mangold Principle

Answer 22

Permits a directive to be given DE against a private party where that directive is giving expression to the general principle of EU law prohibiting discrimination in employment, at least in relation to age.

Question 23

Rationale of Mangold Principle

Answer 23

That the obligation being given horizontal effect was not the directive but the general principle of EU law which the directive was giving expression to.

Question 24

State Liability

Answer 24

Enables individuals to recover compensation from a MS where they suffered loss as a result of the failure of the MS to comply with its obligations under EU law.

Question 25

Indirect Effect

Answer 25

Is relevant where a directive does not have DE.

It imposes an obligation on national courts to interpret national law in a way that is compatible with EU law.

Question 26

Method of IE first established in…

Answer 26

Von Colson

Question 27

Von Colson

Answer 27

A German law on ‘adequate compensation’ for sex discrimination was interpreted purposively in the light of a much more generous EU Directive on the same matter.

Question 28

Indirect effect:
Can it apply horizontally?
What about if national legislation was passed before/after directive?
What about if implementation date has not expired?

Answer 28

Can apply horizontally (Harz) so advantage over DE.

All national legislation can be interpreted regardless of whether it was passed before or after the directive under discussion (Marleasing)

Only once the implementation date has expired (Adeneler).

Question 29

Extend of interpretation of national legislation for IE?

Answer 29

Should go as far as possible to achieve compatability (Marleasing) provided:

• it does not worsen the position of an individual in criminal proceedings (Pupino)
• it is not used to contravene a general principle of EU law , eg legal certainty (Kolpinghuis)
• if national law expressly contradicts provision of EU law (Wagner)

Question 30

State liability

Answer 30

Refers to the principles according to which individuals can recover compensation from a MS where they have suffered a loss caused by the MS’s failure to fulfil its obligations under EU law (Francovich).

Question 31

Limitations of IE

Answer 31

• If national law expressly contradicts the directive
• If no national law
• Implementation date has to have passed

Question 32

The conditions for State Liability (Brasserie du Pecheur, Factortame (No.3)

Answer 32

1. The directive was intended to confer rights on individuals
2. There must be a direct causal link between the breach and the damage
3. There must be a sufficiently serious breach, i.e. state must have manifestly and gravely disregarded the limits of its discretion.

Question 33

British Telecommunications

Answer 33

Not sufficiently serious breach as the UK had made an honest attempt to implement the directive and its failure to do so was understandable in the circumstances.

Question 34

Hedley Lomas

Answer 34

Sufficiently serious breach.
Breach automatically sufficiently serious where the state had no or only limited discretion as to how it was to act under the particular EU measure.

Question 35

Two tests to determine whether a breach is sufficiently serious

Answer 35

Francovich Test and Brasserie Test

Question 36

Dillenkofer

Answer 36

CJ held that Francovich test and Brasserie Test are the same in substance as Francovich test only applies where state has failed to take any steps to implement a directive and failure to do so is automatically a sufficiently serious breach under Brassserie.