Relying on a Directive: Direct Effect, Indirect Effect and State Liability

Question 1

Define ‘Direct Effect’

Answer 1

Provisions of EU Law which are directly effective give rise to rights or obligations which individuals may enforce before their national courts.

Question 2

What are criteria to establish whether a directive has direct effect?

Answer 2

Van Gend Criteria:
o Clear and Precise
o Unconditional
 A lack of stated conditions makes it unconditional
And a further criterion was established in Ratti
- Ratti criterion
o You must be outside the implementation period to rely on a directive

Question 3

Do directives have vertical or horizontal effect?

Answer 3

Vertical
Explain that directives have vertical direct effect only, which means they can only be relied upon against the state, or an emanation of the state.

Question 4

What are the two tests for establishing whether a body qualifies as an emaination of the state. Which do you list and which do you apply to the facts?

Answer 4

The test to judge whether a body qualifies as an emanation of the state was established in Foster to mean:
1. Under a statutory duty to provide a public service
2. Under control of the state
3. Have special powers (power to interfere with a third parties rights; i.e. hose pipe ban)
However, this test was in need of further development due top uncertainty as to whether all elements must be satisfied. The redefined formula can be found in Farrell whereby, to be an emanation of the state, the organisation must satisfy:
1. Delegated to it a Public interest
AND
2. Have Special Powers or State Control

Question 5

How must we apply the facts to Farrell?

Answer 5

Apply the facts to Farrell (not necessary to apply them to Foster as the test is now outdated, but you must mention the development of the test and list the original criteria.

Question 6

Define Indirect Effect

Answer 6

Whereby EU Law is not applied directly, but indirectly by means of interpretation. It involves purposively looking at national law in an attempt to align it with EU directives.

Question 7

For indirect effect, you must then Explain whether the question involves implementing or non-implementing legislation, and whether the distinction is any longer of much significance

What is implementing legislation and what is the case?

Answer 7

Implementing Legislation: Legislation that has been passed by a member state to implement the directive, e.g. Lister and Pickstone.

Question 8

For indirect effect, you must then Explain whether the question involves implementing or non-implementing legislation, and whether the distinction is any longer of much significance

What is non-implementing legislation and what is the case?

Answer 8

Non-Implementing Legislation: Legislation is ONLY passed by member states and is only part of that Member State’s legal system – unrelated to a directive, e.g. Duke v GEC Reliance

Question 9

For indirect effect, you must then Explain whether the question involves implementing or non-implementing legislation, and whether the distinction is any longer of much significance

Does it matter anymore whether indirect effect directives are implementing or non implementing?

Answer 9

Traditionally only implementing legislation qualified for indirect effect, however beyond the case of Marleasing this changed: the courts were given permission to “interpret national law in light of any relevant directive as far as it is possible to do so.”

Question 10

After assessing indirect effect and then implementing or non-implementing, you must mention the 2 limitations of indirect effect. What are they?

Then apply to the facts and conclude whether

Answer 10

• Where there is criminal liability (Arcaro)

- Where the National legislation conflicts with the directive (Wagner)

Question 11

What is the third element they can rely on if not direct or indirect effect.

Answer 11

State Liability
If there is an element of action against the incorrect or failure of implementation of a Directive, then State Liability is a further element that could potentially be relied upon.

Question 12

When can State Liability be used?

Answer 12

If there is an element of action against the incorrect or failure of implementation of a Directive, then State Liability is a further element that could potentially be relied upon.

Question 13

Define State Liability

Answer 13

A member state can be required to pay compensation to individuals for damages suffered as a result for the member state’s failure to implement a directive.

Question 14

What case set out the criteria for State Liability and what case was this further develped in?

Answer 14

Francovich and Factortame

Question 15

What are the Francovich criteria for State Liability?

Answer 15

Set out the Francovich Criteria; These criteria were developed to asses failure to implement a directive and only to be used in such circumstances.

1. Directive entails rights to individuals
2. Contents of rights are identifiable on basis of provision directive
3. Causal link between failure to implement and damage caused to injured parties.

Question 16

What are the Factortame criteria?

these are the ones to apply to the facts

Answer 16

It was then expanded in Factortame to cover more breaches of EU Law (Set out and then decide if they apply)

1. Breach infringes a rule of law intended to confer rights of individuals
2. Direct link between breach and damages caused
3. ex parte BT = Breach is “sufficiently serious”

Question 17

What are the “sufficiently serious” criteria?

Answer 17

3. ex parte BT = Breach is “sufficiently serious”
   Criteria being:
   - Had the commission given any guidance in the case law of the ECJ?
   - Had there been any other guidance on the matter?
   - Had other member states, made the same mistake?

Question 18

How do you tell which test is relevant out of francovich and factortame?

Answer 18

Is it a complete failure to implement (Francovich)? Or is it a breach of a different nature (Factortame)?