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Question 1

What is the criteria for determining whether a piece of legislation is directly effective?

Answer 1

It must be:

• sufficiently clear and precise
• unconditional

Question 2

Which case said that treaty articles may be given direct effect?

Answer 2

Van Gend en Loos which concerned Article 30 TFEU.

Question 3

What did the judgement in Van Gend en Loos say?

Answer 3

That the EU constituted a new legal order of international law. One of the implications of this order was that EU was capable of conferring rights upon individuals which became part of their legal heritage.

Question 4

Give some examples of treaty provisions that are directly effective?

Answer 4

Art 34 and 35 - imports and exports

Art 45 - FM of worker

Question 5

Against whom can these provisions be enforced?

Answer 5

Direct effect can be both horizontal (enforced against an individual) and vertical (enforced against the state).

Question 6

Give an example of vertical direct effect?

Answer 6

Van Gend en Loos which involved Article 30 which prohibits customs duties on imports and exports. Dutch company against Dutch authority.

Question 7

Give an example of horizontal direct effect?

Answer 7

Defrenne v SABENA, article 157 TFEU which entitled men and women to equal pay. Ex cabin crew against former employer.

Question 8

Why did the courts decide that directives were capable of being directly effective in the case of Van Duyn?

Answer 8

It would be incompatible with the binding effect attributed to directives if they did not allow individuals to rely on them.

Also art 267 TFEU (preliminary rulings) allows courts to refer questions to the EU for interpretation of secondary legislation, including directives. Implying they must be capable of being invoked by individuals

Question 9

What criteria must a directive meet in order to be directly effective?

Answer 9

• sufficiently precise
• unconditional
• deadline of the implementation must have expired (Ratti)
• it is only possible to enforce it vertically (Van Duyn; Becker)

Question 10

What is a directive?

Answer 10

A piece of EU legislation that requires member states to introduce their own legislation to achieve the results specified in the directive on or before a given deadline.

Question 11

What was significant in the case of Mangold v Helm?

Answer 11

Age discrimination had occurred prior to the directives implementation deadline. Rather than following Ratti the court said as it was a general principle of equal treatment it could not be made conditional upon the expiry period of the directive.

Question 12

What flexibility has the ECJ shown with regards to directives being horizontally effective?

Answer 12

They can be enforced against the state as an employer (Marshall) and local authorities (Constanzo) and emanations of the state (Johnston).

Question 13

What are the arguments that can be made for giving horizontal effect to directives?

Answer 13

• if one form of secondary legislation (regulations) be enforced horizontally why can’t another
• if a member state fails to implement a directive why not allow individuals to rely on it

Question 14

What is the incidental direct effect of directives?

Answer 14

In a case between individuals, a directive can be used as a shield, not a sword (CIA Security v Signalson).

Question 15

Can a member state rely on an unimplemented directive in order to sue an individual of the member state?

Answer 15

No (Kolpinghuis - cafe owner failed to comply with directive but country had not implemented it).

Question 16

A directive is capable of what type of effect, horizontal, vertical, both or none?

Answer 16

Vertical direct effect only (Marshall rule).

Question 17

Why are directives incapable of horizontal direct effect?

Answer 17

They are addressed to the member states (Marshall).

Question 18

What is indirect effect?

Answer 18

Introduced in Von Colson where the was an obligation on national courts to interpret national legislation which had been introduced with the express purpose of implementing a directive.

Question 19

What is the leading case of indirect effect?

Answer 19

Marleasing which extended the doctrine to all national legislation, including those that predated the directive where they dealt with the same subject matter.

Question 20

Give an example of the Marleasing situation in English case law?

Answer 20

Courts interpreting provisions of the sex discrimination act in conformity with an EU directive as both pieces of legislation dealt with the same subject matter (Webb).

Question 21

When does indirect effect arise?

Answer 21

Adeneler confirmed the obligation arose when the directives implementation deadline had expired. Consistent with Ratti.

Question 22

What are the limitations on the availability of indirect effect?

Answer 22

• cannot be used to determine or aggravate someone’s criminal liability (Kolpinghuis)
• it only imposes an obligation on national courts to implement domestic legislation ‘insofar as possible’

Question 23

What is direct effect and which case was it established in?

Answer 23

It refers to provisions of EU law which are capable of enforcement by individuals before national courts and was established in Van Gend en Loos.