Indirect Effect Flashcards

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1
Q

Why was indirect effect conceived as a doctrine?

A

Make up for exclusion of horizontal direct effect.

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2
Q

Which Treaty provision and principle is IE derived from?

A

Art 4(3) TEU; principle of loyal co-operation.

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3
Q

Which case introduced indirect effect and how did it define it?

A

Von Colson

national courts must interpret and apply legislation passed for the purpose of implementation, in conformity with Community law, in so far as it is given discretion to do so under national law.

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4
Q

What doctrine did the UK courts invent before Von Colson?

A

‘harmonious construction’ in Garland v British Rail endorsing Lord Denning in Macarthys v Smith.

ONLY directly effective EU law.

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5
Q

Initial response of UK courts and the case.

A

Initially, only national legislation introduced to implement directives (Duke)

Indirect effect was accepted without difficulty in Pickstone; Litster; Finnegan

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6
Q

Marleasing

A

Answers two questions left by Von Colson

  1. Indirect effect could apply to national law adopted either before or after the directive, and by implication, not for the purpose of implementing a directive. (‘as far as possible’)
  2. Could apply to horizontal disputes.
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7
Q

Webb saga

A

Initially - Von Colson/Marleasing was made conditional on not distorting Acts of Parliament.

This reasoning was rejected on application to CJEU, but on second instance in HoL - a harmonious construction in the case was not deemed possible because appellant was a temporary employee who became pregnant.

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8
Q

Principles in Pfeiffer

A
  1. Requires domestic courts to consider national law as a whole - they can apply conforming interpretation to more than one statute.
  2. Domestic rules of statutory interpretation still apply, and thus, domestic courts must strive as far as possible (affirms Wagner Miret)
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9
Q

Wagner Miret

A

Domestic courts must implement conforming interpretation AS FAR AS POSSIBLE.

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10
Q

What is the critical analysis point for indirect effect?

A

Interpret conforming interpretation as far as possible (Wagner Miret)

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11
Q

Can a Directive determine or aggravate criminal liability?

A

No - Arcaro; Rolex

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12
Q

Can a Directive determine or aggravate civil liability?

A

Yes - Centrosteel.

Even if this would be retrospective.

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13
Q

Brunnhofer

A

If a Directive merely embodies substantive Treaty rights/obligations (primary EU law), it can be horizontally directly effective.

That is the ‘true’ source of the obligation.

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14
Q

Mangold/Swedex

A

Brunnhofer principle extended - Directive embodying GENERAL EU LAW PRINCIPLE derived from Case Law is also sufficient.

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