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EU Law > W3 Direct Effect and Supremacy > Flashcards

W3 Direct Effect and Supremacy Flashcards

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1
Q

What is direct effect?

A

An EU law has direct effect if it can be asserted by a legal person in a national court.

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2
Q

What is supremacy?

A

EU law takes effect over any conflicting national law. Also called primacy.

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3
Q

What is primacy?

A

EU law takes effect over any conflicting national law. Also called supremacy.

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4
Q

What happens when a national law conflicts with an EU law?

A

The EU law takes precedence if the rule is clear, precise, and unconditional. The conflicting national law is disapplied.

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5
Q

Which case establishes the principle of direct effect?

A

Van Gend en Loos v Netherlands

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6
Q

Van Gend en Loos v Netherlands

A

Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.

Significance: Authority for direct effect/supremacy of EU law.

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7
Q

PBL Method for challenging an EU act

A
  1. Does the legislation/decision fall within the competency of the EU? What type of competency?
    a. Consider subsidiarity, proportionality, and flexibility
  2. Does it conflict with harmonization?
  3. Is the legislation in draft or has it passed?
    a. If draft, go to Protocol 2 – early warning system.
  4. What kind of legislative procedure was followed (regulatory/non-regulatory)? Was it delegated/implemented?
    a. If regulatory and no implementing measures, go to standing
    b. Otherwise, challenge in national court
  5. Does our client have standing?
    a. If yes, take action in EU court
    b. If no, take action in national court
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8
Q

Does supremacy apply to all types of national laws?

A

Yes - even national constitutions. Authority: IH German farming regulation case

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9
Q

Does supremacy apply to national laws passed recently (i.e. more recent law rules)?

A

Yes - supremacy applies regardless of dates of relevant legislation.

Authority: Simmenthal

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10
Q

Does supremacy apply at every level of national courts or just to last instance?

A

It applies at all levels.

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11
Q

Simmenthal

A

Facts: Company imports French beef into Italy. Italian national law imposes a border check, and was passed after Italy joined the EEC. Issue was whether the lower court judge could disapply national law. Make a reference to CJEU for preliminary ruling, CJEU said that EU law applies instantly throughout all national courts.

Significance: Supremacy applies throughout all national courts, regardless of date legislation passed.

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12
Q

What is vertical direct effect?

A

A legal person challenges a Member State based on EU law

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13
Q

What is horizontal direct effect?

A

A legal person challenges another legal person (not a state) based on EU law

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14
Q

Do treaty articles have direct effect?

A

Yes. Examples: Simmenthal, Van Gend en Loos

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15
Q

Do treaty articles have both vertical and horizontal direct effect?

A

Yes.
Vertical: e.g. Van Gend en Loos
Horizontal: Defrenne v Sabena No 2

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16
Q

Defrenne v Sabena No 2

A

Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. EU Articles included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.

Significance: Example of direct horizontal effect of treaty articles.

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17
Q

Do EU regulations have direct effect?

A

Yes, if clear, precise, and unconditional

18
Q

Do EU regulations have vertical or horizontal direct effect?

A

Both

19
Q

Antonio Munoz

A

Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.

Significance: Example of EU regulation having horizontal direct effect.

20
Q

Do EU Decisions have direct effect?

A

Yes, if clear, precise, and unconditional

21
Q

Grad

A

Facts: German transport company challenges a German tax for non-compliance with EU Decision. CJEU ruled that Decisions have direct effect.

Significance: Example of direct effect of EU Decisions.

22
Q

Does the EU Charter of Human Rights have direct effect?

A

Yes, both horizontal and vertical.

23
Q

Do EU Directives have direct effect?

A

Not usually - because they require implementing measures by the Member State, then the challenge should be based on the implementing legislation, not the EU Directive.

24
Q

When can EU Directives have direct effect?

A

When the MS didn’t properly implement them - e.g. Van Duyn and Becker. But vertical only!

25
Q

Van Duyn

A

Facts: Van Duyn blocked from entering UK by Home Office due to ties with the Church of Scientology. EU Directive states that MS banning entry on grounds of public policy may only do so exclusively based on personal conduct of the individual. UK had failed to implement the directive. CJEU ruled that failure to implement a directive was not a defence available to a MS, so Directives must have vertical direct effect.

Significance: Vertical direct effect of Directives not properly implemented by a MS.

26
Q

Do Directives have horizontal direct effect?

A

No, only vertical. But a public body can be held to a Directive even when they are acting in a private capacity, e.g. as an employer. Authority: Marshall v Southampton Health Authority

27
Q

Marshall v Southampton Health Authority

A

Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.

Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.

28
Q

What is indirect effect?

A

National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called the duty of consistent interpretation.

29
Q

What is the duty of consistent interpretation?

A

National courts must interpret their national law in a way which is compliant with the wording, purpose, and objective of the EU Directive. Also called indirect effect.

30
Q

Von Colson & Kamann

A

Facts: Van Colson applies for a job in prison, but is rejected for discriminatory reasons. Von Colson argues that the German implementing law didn’t meet EU requirements. CJEU rules that national courts must interpret national laws as compliant with Directive’s objectives.

Significance: While Directives do not have direct effect, national laws must be interpreted as complying with their wording, purpose, and objectives, so Directives take indirect effect.

31
Q

What is generally the result of indirect effect?

A

Generally results in amendment of the national law to more clearly comply with EU Directive. Is not an avenue to damages for a claimant.

32
Q

What is state liability in EU law?

A

Allows individuals to seek remedies for losses suffered as a result of Member State’s failure to implement or apply EU law. The legal person is able to sue the Member State in national court.

33
Q

What are the requirements for state liability?

A

1) The EU law is intended to confer rights upon individuals
2) Breach of EU law must be sufficiently serious
3) Must be a direct causal link between State’s failure and the damages suffered

Authority: Brasserie de Pecheur case (modifying Francovich).

34
Q

Brasserie de Pecheur

A

Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.

Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).

35
Q

Facts: Dutch chemical importer challenging an increase of customs duty in domestic legislation in Dutch court, arguing that it breaks EU Treaties. Dutch court makes a reference for preliminary ruling, asking what happens where EU Treaties conflict with national law. CJEU responded to say national courts must apply EU law and disapply the conflicting national law.

Significance: Authority for direct effect/supremacy of EU law.

A

Van Gend en Loos v Netherlands

36
Q

Facts: Defrenne worked for Belgian airline Sabena, and was paid less than her male colleagues. EU Articles included a provision for equal pay. CJEU confirmed treaty articles had direct horizontal effect.

Significance: Example of direct horizontal effect of treaty articles.

A

Defrenne v Sabena No 2

37
Q

Facts: Antonio Munoz sold grapes. Competitor was selling grapes with non-compliant labels. The relevant regulation didn’t specifically confer rights onto individuals to challenge other individuals. Did it have horizontal direct effect? CJEU said yes.

Significance: Example of EU regulation having horizontal direct effect.

A

Antonio Munoz

38
Q

Facts: Van Duyn blocked from entering UK by Home Office due to ties with the Church of Scientology. EU Directive states that MS banning entry on grounds of public policy may only do so exclusively based on personal conduct of the individual. UK had failed to implement the directive. CJEU ruled that failure to implement a directive was not a defence available to a MS, so Directives must have vertical direct effect.

Significance: Vertical direct effect of Directives not properly implemented by a MS.

A

Van Duyn

39
Q

Facts: Marshall bringing the health authority to court over their retirement policy breaching an EU Directive. The UK law did not address retirement. CJEU ruled that the EU Directive was breached, and could be relied upon by Marshall since the health authority is a public body. It was still vertical direct effect even though the health authority was acting as an employer. However, CJEU re-iterated that Directives do not have horizontal direct effect.

Significance: Directives have direct vertical effect. It is still vertical direct effect when a public body is acting in a private capacity.

A

Marshall v Southampton Health Authority

40
Q

Facts: A German brewery (Brasserie du Pêcheur) faced financial losses due to conflicting national and EU beer quality regulations. CJEU established that Germany could be held liable for the losses caused by their breach of EU law, thereby establishing State liability.

Significance: Established State liability and criteria (sufficiently serious breach, causal link, and EU law must confer right to individuals).

A

Brasserie de Pecheur

EU Law (11 decks)

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