EU Law & National Law

Question 1

What criteria must be met for a provision of EU law to have direct effect? Case.

Answer 1

1. Clear, precise and unconditional - Van Gend en Loos.

Question 2

What further criteria must be met for a Directive to have direct effect? Case.

Answer 2

Time limit for implementation must have passed without Directive being properly implemented - Ratti.

Question 3

In what direction(s) will Treaty Articles have direct effect? Cases.

Answer 3

1. Vertical - Van Gend.

2. Horizontal - Defrenne v SABENA.

Question 4

In what direction(s) will Regulations have direct effect? Cases.

Answer 4

1. Vertical - Leonesio.

2. Horizontal - Antonio Munoz.

Question 5

In what direction(s) will Directives have direct effect? Case.

Answer 5

Vertical - Marshall v Southampton & SW Hampshire

Question 6

What guidelines have been given to help decide whether a body is an ‘emanation of the state’? Case.

Answer 6

Foster v British Gas:

1. Statutory duty to provide public service?
2. Under state control?
3. Special powers?

Question 7

What may be sufficient for a body to be deemed to be ‘under state control’? Case.

Answer 7

If the industry is subject to state regulation - Griffin v SW Water.

Question 8

Must all 3 criteria in Foster v British Gas be met? Case.

Answer 8

Court of Appeal has said only the first 2 criteria may be sufficient - NUT v St Mary’s.

Question 9

Which case first developed the principle of indirect effect? What did it say?

Answer 9

Von Colson - a Member State’s obligations under EU law extend to the whole state, including the courts. National courts must therefore interpret implementing legislation in purposive fashion to give effect to the aims of a Directive.

Question 10

Which case further developed the principle of indirect effect? What did it say?

Answer 10

Marleasing - applied the principle in Von Colson to any piece of national law, regardless of when enacted, and regardless of whether it was not intended to implement the Directive.

Question 11

Give 2 examples of how far UK courts have been willing to apply indirect effect. Cases.

Answer 11

1. Interpret UK law against strict literal meaning - Pickstone v Freemans.
2. Add words into statute - Litster v Forth Dry Dock Engineering.

Question 12

What limit is there on indirect effect? Case.

Answer 12

Courts cannot apply indirect effect where there is a clear, direct conflict between Directive and national law - Wagner Miret.

Question 13

Which case first developed the principle of state liability? What did it say?

Answer 13

Francovich v Italy - individual can sue Member State for complete failure to implement a Directive, where 1) Directive confers rights on individuals; 2) Rights are identifiable from Directive; 3) Causal link between failure to implement and damage suffered.

Question 14

Which case expanded the principle of state liability? What did it say?

Answer 14

Brasserie du Pecheur/Factortame - individual can sue for any breach of EU law obligations. Added criteria of ‘sufficiently serious’. N.B. Only applies where Member State has discretion over its actions.

Question 15

When will a breach be ‘sufficiently serious’? Definition.

Answer 15

When a Member State has manifestly and gravely disregarded the limits on its powers.

Question 16

Give 2 examples of breaches which will be ‘sufficiently serious’. Cases. Why are they ‘sufficiently serious’?

Answer 16

1. Failure to implement a Directive - Dillenkofer.
2. Failure to make an Article 267 TFEU reference by court of mandatory jurisdiction.
   Member States have no discretion as to both of these actions.

Question 17

A Member State may have a ‘reasonable excuse’ for a breach of EU law - what guidance has been given to ascertain what a ‘reasonable excuse’ is? Case.

Answer 17

ex parte BT - 1) Was the Directive vague? 2) Have other Member States made a similar mistake? 3) Has ECJ offered guidance?