In(Direct) Effect Flashcards
Van Gend en Loos (general)
FIRST CASE OF DIRECT EFFECT
- vertical
- for a treaty article
- Justification: preamble of treaty - new legal order (a community of people, not just of states)
Van Gend en Loos (Conditions for Direct Effect)
1) Provision must be sufficiently precise
2) provision must be unconditional
“Unconditional”
Molkerei-Zentrale Westfalen - unconditional does not mean subject (in implication or effects) to the taking of any measure either by the institutions of the Community or by MS
(so not yet implementing does not mean the provision is conditional)
Impact v Minister for Agriculature and Food
Even if there is an absence of the implementing measure at Community or national level can still have DE
Deferenne v Sabena (no.2)
created horizontal direct effect (treaty article)
Vertical Direct Effect of Directives
Van Duyn v Home Office
- Van Gend said “sufficiently” precise, and Directives are sufficient
- drew on idea of useful effect
Why are Directives Directly Effective?
1) (Van Duyn) FUNCTIONAL
2) (Van Duyn) TEXTUAL
3) (Ratti) ESTOPPEL
When are Directive Directly Effective?
1) After period of implementation (Ratti)
2) During period of implementation?? (Inter-environment Wallonie said MS cannot implement anything that will seriously undermine result of Directive
3) After implementation (Verbena van Netherlands - incase implementing authorities did not act within their power)
No horizontal DE of Directive
Marshall v Southampton (confirmed in Faccini v Recreb)
Fratelli Constanzo v Milano
State includes “all organs of administration including decentralised administrative authorities such as municipalities”
Foster v British Gas
Emanation of the state if it:
1) Offers a public service
2) under control of the state
3) has special powers because of this
Doughty v Rolls Royce
no public service, just service to the state = counted as emanation
National Union of Teachers v Governing Body of St Mary Church of England
no special powers, just public service and control of state
- counted as emanation
- said to interpret foster widely, it isn’t a statutory definition
Kampelmann
Loosen definition of Foster
- can be special powers OR control by the state
Rieser v Asfinag
Not real control of state, just ownership and supervision
- seems like if an entity is carrying out a public service and for that reason has special powers, presence of state control is not required
- control not really necessary anymore
incidental horizontal effect
CIA Security International - directive can be used to ‘void’ national provisions as an EXCLUSIONARY thing, not substitutive (just use directive to remove a defence, not to crate obligation)
Unilever v Central Food
Used Directive for incidental DE again (said it wasn’t HDE because was not imposing individual rights or obligations, just using it to bar a defence)
Johannes Martinus Lemmens
Incidental DE is not for criminal liability
Acor v Germany
used directives against the state to say they shouldn’t allow a private company to go against directive
- this was successful!
Mangold v Helm
You can use general principles against individuals (if they’ve been solidified into a Directive)
- apparently this isn’t HDE
Kucukdeveci v Swedex
reaffirmed Mangold ruling re: legal effects of general principles
Harmonious interpretation of Directive (indirect effect) - leading case
Von Colson
Horizontal Indirect Effect
Marbleising SA v La Commercial
Pfifer v Deutsches Rotes Kreuz
Indirect effect applies to ALL law, not just the one that implements the Directive
- any vague enough provision = fine, doesn’t have to be specifically linked to directive
Limits of Indirect Effect
1) Contra Legem (Wagnor-Mirit)
2) Violates a fundamental principle of domestic law
Dominguez v CICOA Judgement
Whether something is contra legem or not is really wide and it could be interpreted that it isn’t even if it seems like it is
- court’s will stretch, just don’t know in what cirumcstances
