State Supremacy, Direct Effect, Indirect Effect, State liability Flashcards
What case established Direct Effect?
a. Internationale Handesgesellschaft
b. Van Gend en Loos
c. Cooperativa Agricola
d. Francovich
b. Van Gend en Loos established Direct Effect
Cooperativa Agricola. gave conditions for direct effect, did not establish it
Is EU Law Supreme?
a. Costa v ENEL
b. Van Gend en Loos
c. Internationale Handelsgesellschaft
d. Cooperativa Agricola
Yes.
a. Costa v ENEL established Supremacy of EU Law
Does EU Law take precedence over constitutions?
a. Van Gend en Loos
b. Van Duyn
c. Ratti
d. Internationale Handelsgesellschaft
Yes. EU Law takes precedence over constitutions
d. Internationale Handelsgesellschaft
Van Gend en Loos Justification for granting directives direct effect
Directive contained a clear and unconditional prohibition
What established the criteria/conditions for direct effect?
a. Van Gend en Loos
b. Cooperativa Agricola
c. Van Duyn
d. Ratti
a. Van Gend en Loos gave the criteria for Direct effect
- Sufficiently clear and precise
- Unconditional
(b. Cooperativa Agricola expanded upon/defined them)
Can Treaty Articles have horizontal direct effect?
a. Cooperativa Agricola
b. Defrenne
c. Ratti
d. Francovich
b. Defrenne
They can have both vertical and horizontal direct effect
Can directives have direct effect and if so, what was the initial justification?
a. Van Duyn
b. Ratti
c. Defrenne
d. Internationalle Handelsgesellschaft
a. Van Duyn
Yes, Directives can have direct effect as long as:
a. VGeL Criteria (clear & precise/unconditional)
b. Implementation date has passed
c. not implemented/only partially implemented/not being applied correctly
The (shitty) justification:
It would be incompatible with the binding effect of directives if they did not have direct effect
Ratti justification for directives having direct effect?
a. Would be incompatible with the binding effect of directives if they did not have direct effect
b. Member states cannot rely on their own failure to perform treaty obligations.
c. It would erode the power of EU Law
d. It would allow for discrimination
b. Member states cannot rely on their own failure to perform treaty obligations
Ratti corrected Van Duyn. Member States finally accepted this justification
Can directives have horizontal direct effect?
a. Foster v British Gas
b. Marshall v Southampton
c. Van Durn
d. Franz Grad
b. Marshall
Directives cannot have horizontal direct effect. Only Vertical and against emanations of then state
Who established Bipartite and Tripartite Test?
Foster v British Gas established Bipartite and Tripartite test
(Rule in UK seems to be use tripartite when it is commercial)
Which of these is the Bipartite Test?
a. Subject to state control or has special powers
b. Subject to state control and has special powers
c. Responsible for a public service or has special powers
d. Subject to state authority and responsible for a public service
a. Bipartite Test is:
Subject to the authority or control of the state
OR
Has special powers beyond those which result from the normal rules governing individuals
(Foster v British Gas)
Which of these is the Tripartite Test?
a. Responsible for providing a public service or under state control or has special powers
b. Subject to state control and responsible for providing a public service and has special rights
c. Subject to state control and has special powers and has special rights
d. Responsible for providing a public service and under state control and has special powers
d. Tripartite Test is:
Been made responsible (pursuant to a measure adopted by the state) for providing a public service
AND
Under the control of the state
AND
Has special powers for this purpose (beyond those which result from the normal rules applicable in relationships between individuals)
Was Rolls Royce an emanation of the state given it was publicly owned, but operated at an arms length from the government?
Doughty v Rolls Royce
Not an emanation even though owned by government as it operated independently and did not provide a public service or have special powers
(Tripartite test)
Was St Mary’s Junior school an emanation of the state given it was a state school?
St Mary’s Junior School
Was an emanation of the state as it was part of the state school system, and it provided a public service while the Secretary of State had control over it.
In this they applied 2/3 of the tripartite test and therefore said it was an emanation
(public service/under state control/special powers)
Although this effectively means they applied the bipartite test
Was a privatised water company an emanation of the state?
Griffin v SW Water services
Yes it was as it:
- Had Special powers (can create a hosepipe ban and can enter land to lay pipes)
- Was responsible for providing water
- Secretary of State had some power over it
so an emanation of the state
(tripartite)
Was Portgas an emanation of the state?
had the exclusive right to distribute gas in a region in Portugal
No.
The fact they had special rights to distribute did NOT mean they had special powers
Can state authorities use a directive against the member state/other emanations
a. Portgas
b. Griffin v SW Water
c. Rolls Royce
d. Foster v British gas
Yes.
a. Portgas
Berlusconi
Directive cannot have direct effect to determine OR aggravate liability for a crime
Define Indirect Effect
Von Colson
National Courts Must interpret their national law in light of the wording of EU Law
Define Direct Effect
Provisions of EU Law give rise to immediate rights that can be enforced within national legal systems
Define Direct Applicability
A Regulation is implemented automatically into domestic law and doesn’t need further legislation
What if national law predates the EU Law?
a. Von Colson
b. Van Duyn
c. Ratti
d. Marleasing
d. Marleasing
Doesn’t matter if it predates the EU Law, must still be interpreted alongside it.
Can Indirect Effect be used horizontally, between two individuals?
a. Marleasing
b. Van Gend en Loos
c. Von Colson
d. Ratti
a. Marleasing (again)
Yes.
What if the national law contradicts an EU provision?
a. Ratti
b. Wagner Miret
c. Marleasing
d. IDT Card Services
c. Wagner Miret.
Indirect effect doesn’t apply.
Only required to interpret “as far as possible”
[indirect effect] Does the language have to be ambiguous before it is interpreted using EU Law? a. Ratti b. Wagner Miret c. IDT Card Services d. Marleasing
c. IDT Card Services.
No.
[indirect effect] Can the interpretation read words into the legislation? a. IDT Card Services b. Marleasing c. Francovich d. Van Duyn
IDT Card Services
Yes.
Although it cannot go beyond interpretation and actually re-write the legislation
What case first established State Liability?
Francovich and Bonifaci
Which of these is not in the Francovich Criteria for State Liability?
a. Directive grants rights
b. Can identify these rights from the directive
c. Causal link between breach and loss
d. Breach is sufficiently serious
d. (this is from Brasserie)
Francovich criteria are:
- Directive grants rights to individuals
- Can identify the content of these rights from the directive
- Causal link between the breach of obligation and loss
What case expanded State Liability and laid out new conditions?
a. Francovich
b. Ratti
c. Van Duyn
d. Brasserie du Pecheur
d. Brasserie du Pecheur
Created these 3 criteria for state liability:
(Breached law grants rights to individuals
Breach is sufficiently serious
Direct link between breach and damage)
Which of these is not a Brasserie du Pecheur criteria?
a. Breached law grants rights to individuals
b. Breach is sufficiently serious
c. Can identify the content of these rights from the directive
d. Direct link between breach and damage
c. Can identify the content of these rights from the directive
This is from Francovich
What is meant by ‘sufficiently serious’
Brasserie du Pecheur
“Manifestly and gravely disregards the limits of its discretion”
R v Ministry of Agriculture (ex p Hedley Lomas) clarified:
If the MS is does not need to make any legislative choices, the mere infringement of community law may be a sufficiently serious breach
Which of these should NOT be taken into account to determine if the breach is sufficiently serious?
a. Clarity of the rule breached
b. If an EU institution contributed to the breach
c. If the rule was breached intentionally
d. If the breach was excuseable
Trick question. These can all be taken into account
(Braserie du Pecheur)
Can also take into account:
- The extent to which member states adopted/ retained national measures contrary to the EU law
- The measure of discretion left to the Member state by the rule
R v British Telecommunicaitons - was the breach excuseable?
Breach was excusable, as
other states had made a similar (flawed) interpretation
the interpretation was made in good faith
the interpretation was not manifestly contrary to the directive
How similar are the Francovich test and the Brasserie test?
Dillenkofer
The tests are the same in substance. If a case will fail one test, it will likely fail the other.
When to use Francovich over Brasserie?
a. Franchvich if total breach, Brasserie if partial
b. Brasserie if total breach, Francovich if partial
c. Use them whenever
d. They are both the same in substance
a. Use Francovich if its a total breach, use Brasserie if it is a partial breach
BUT d. is also correct according to Dillenkofer
Can positive Treaty Obligations have direct effect?
a. Lutticke
b. Van Gend en Loos
c. Van Duyn
d. Ratti
a. Lutticke
Yes they can.
Can decisions have direct effect?
a. Franz Grad
b. Carp SNC
c. Politi s.a.s
d. Antonio Munoz
a. Franz Grad
Yes They can (as long as they have VGeL criteria)
Carp SNC says they may only be used vs the parties they were addressed to
Can regulations have direct effect?
a. Antonio Munoz
b. Azienda Agricola
c. Carp SNC
d. Politi s.a.s
b. Azienda Agricola
Yes they can (as long as they have VGeL criteria)
Antonio Munoz says they have Vertical AND Horizontal direct effect
Politi s.a.s just confirmed that they did (said that given they are directly applicable, they must have direct effect)
