Private Enforcement - Direct & Indirect Effect Flashcards
What is Vertical direct effect?
This concerns the state and the individual. The treaty obligation falls on the member state. Such a provision can only be enforced against the state and not against individuals.
What is Horizontal direct effect?
The obligation falls on individuals. Therefore a legal measure may be relied upon in a private dispute between individuals.
What effect do treaty provisions have?
They are the primary legislation of the EU. They have both horizontal and vertical direct effect. If the provision/ treaty article is clear precise & a prohibition and independent of member implementation.
What effect do regulations have?
They automatically become part of EU law when passed and member state law. This has both Horizontal and vertical affect. Regulations do not require implementation at national level, they are directly applicable.
Van Gend En Loos 1963
Van Gend En Loos imported a type of plastic from Germany into the Netherlands. However Dutch customs authorities demanded a type of important tax to be paid. VGEL relied on EU law in order to refuse to pay the important tax. It was held that the Dutch authorities were in violation Art 30 TFEU as member states should refrain from introducing new custom duties between each other on exports and imports.VGEL could rely directly on the treaty provisions. Direct applicability.
What effect does directives have?
They require members states to do something within a certain time limit. They only have vertical direct effect and they must give rights to individuals. Therefore member states are required to pass legislation by a certain date.
Defrenne v Sabena [1976]
An air stewards was entitled to equal pay to her Male counterparts. Artic 157 TFEU is directly effective and gives rights to the individuals.
What is indirect effect?
It allows directives to be horizontally effective.
Von Colson & Kamann v Land Nordrhein-Westfalen [1984]
There was a sex discrimination claim as a female was rejected from a job because she was a female. Claimants sought to rent on Article 6 Equal Treatment Directive but it didn’t have direct effect as the directive was not sufficiently clear and precise. The court of justice ruled that although article 6 was not directly effective, all courts in member states are bound to observe Union Law & under Article 288 they must achieve the result that is stated in the Directive.
What does Article 4(3) state and how does this affect indirect effect?
The union & member states shall, in full mutual respect assist each other in carrying out tasks from the Treaties. & take any appropriate measure to ensure fulfilment of the obligations arising out of the Treaties. Therefore they must achieve all directives & interpret national law in a way that achieves results.
What is The state?
The state is local authorities, courts and anything under control of the state and provides a public service & has powered beyond those of individuals.
Foster v British Gas [1990]
Gave the widened definition of a state and the “emanation of the state”.
Francovich v Italy [1991]
Francovich tried to enforce a directive with a company however, directives can not be used with horizontal direct effect. Therefore Francovich sued the state for not implementing the directive. The state was liable. This is where the directive gives rights to individuals, the rights are identifiable within the directive and there must be a casual link between the damage suffered to the individual and the directive.
Brasserie du Pecher [1996] & Factortame
This cases states that libablity covers both non-implantation or directives and the responsibility of legislature for acts and omissions contrary to EU. The breaches must be sufficiently serious.
