1 - EU Law and National Law: Supremacy, Direct, Effect, Indirect Effect and State Liability Flashcards

Question

What was found in Azienda Agricola Monte Arcosu Srl v Regione Autonoma della Sardegna?

Answer 1

- Court of justice found that the provisions of 2 regulations did not have direct effect - Because those provisions specifically required MS to define the phrase "farmer practising farming as his main occupation" - MS had to take further measures to implement these provisions

Answer 2

- Followed on from Franz Grad v Finanzamt | - Decision can only have direct effect against the party to whom the decision was addressed.

Answer 3

- Recommendations and opinions are not binding forms of EU law - And therefore cannot have direct effect.

Answer 4

- They are binding form of EU law - Article 288 TFEU = directives are only binding on MS. - Always have to be implemented by those MS. - Indicates that they could not have direct effect seemingly because they are inherently conditional - therefore fail VGeL test.

Answer 5

- Van Duyn v Home office. - Dutch scientologist, refused secretary work in london. - Refused entry into UK - Article 45 TFEU - free movement of workers subject to derogations on ground of public policy, security and health. - Directive 2004/38 contains derogations - Held that this directive had direct effect

Answer 6

- Held: MS cannot rely against individuals on its own failure to perform the obligations that the Directive entails. - Got rebellious national courts to accept the direct effect of directives. - Also has informed the principles that the Court subsequently developed, to govern effect of Directives.

Answer 7

- Must be implemented by date specified in directive or within 20 days of publication - In Ratti, was held that directive can only have direct effect once deadline for its implementation has passed - not beforehand.

Answer 8

- Head of a company - Whose board of directors decided to package solvents in conformity with Directive 73/173 - And to apply Directive 77/728 which had not been implemented into Italian law - was prosectued for infringing Italian law which was more stringent than directives. - Ratti sought to rely on the directives in his defence. - Coj: found that directive had direct effect because the deadline for its implementation had passed. - This concerned a simple failure to implement a Directive.

Answer 9

- Court had already established that a Directive could have direct effect where a MS has only partially / incorrectly implemented it - Verbond (VNO) case. - Therefore someone can rely on a directive in the national court where the directive has not been implemented at all by that MS / has been partially or incorrectly implemented - As long as the implementation date for that directive has passed and its provisions satisfy the other conditions for direct effect.

Answer 10

- Held: even when a directive has been completely and correctly implemented into national law by the MS - An individual may continue to rely upon a clear, precise and unconditional directive in their national court - "where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it"

Answer 11

- Directive cannot have direct effect against a private entity - Under Article 288 TFEU it is only binding on MS to whom it is addressed. Female dietician who was dismissed on the ground that she had passed compulsory retiring age (60)applicable to women. Male employees could continue to work until they were 65.

Answer 12

- Was confirmed that directives can only have vertical direct effect.

Answer 13

- That directive could be relied upon against a health authority because health authority was an organ of the state

Answer 14

- Becker v Finanzamt Munster Innenstadt

Answer 15

- Fratelli Constanzo Spa v Comune di Milano

Answer 16

- Johnston v Chief Constable of the RUC | - This case introduced the term "emanation of the state"

Answer 17

- Specific criteria for organ / emanation of the state created - 6 women who were forced to retire at the age of 60 in accordance with the policy of British Gas, 5 years earlier than males. - Wanted to rely on Directive 76/207 - Held: British Gas was a body that had to rely directly upon Directive 76/207 - They did this by summarising the broad powers and duties that British gas had

Answer 18

What is included in step 1 (bipartate test) of establishing an emanation of the state? - Noted types of bodies that had already been treates as emanations of the sate - Held in paragraph 18: that directive could be relied on against organisation / bodies which: • Subject to authority beyond control of the state • OR have special powers beyond those which result from the normal rules applicable to relations between individuals.

Answer 19

- Body made responsible for providing public service - Under the control of state AND - Has for that purpose special powers beyond those which result from normal rules applicable in relations between individuals.

Answer 20

- Applied the tripartate test - Held: British Gas WAS an emanation of the state. - Under the Gas Act 1972 - they provide a public service by giving gas to state citizens - Did so under the control of the state - Have special monopoly power, under which it can prevent anyone else from supplying gas in UK without its consent.

Answer 21

- Tripartite test was used: - Held: Rolls Royce was not an emanation of the stae, despite all of its shares being owned by Government + its nominees - Operated as commercial undertaking - Which traded with government on an "arms length" commercial basis - Not providing public service and did not have any special powers. - Tripartite test not to be used in every case

Answer 22

- Held: privatised water company satisfied all 3 elements of tripartate test. RUS - Responsibility for a public service: made responsible pursuant to a measure adopted by the State for providing a public service: sec of state made it the water and sewage undertaker for the south west - Had range of special powers e.g. to impose hosepipe bans, to make by-laws, to enter land and lay pipes.

Answer 23

- Court declined to use full tripartite test - Decided that board of governors (who accepted state aid and entered the state education system) - was an emanation of the state. - Arguably this was compatible with the bipartate test

Answer 24

- Claims against regional authority: Landschafts - They were responsible for construction / maintenance / management of highways - In accordance with bipartite test from Foster, held: Directive could be relied upon against organisations or bodies which are subject to the authority or control of the State OR have special powers beyond those which result from the normal rules applicable to relations between individuals.

Answer 25

- Cited bipartate test again - Decided that 2 Limited Liability companies were emanations of the state - The companies had been established and were owned by a local authority association, for the purpose of providing social assistance to disabled people by supplying them with a workplace.

Answer 26

- Held that body was NOT emanation of the state - Because it failed the tripartite test - Applicants were seeking annulment of Directive 98/43/EC relating to ad/spon of tobacco products. - Una film argued that they were under direct control of the state, was an emanation of the state as a result - So directive would have direct effect against it

Answer 27

- Austrian company - Had been incorporated as private company, but their sole shareholder was the Austrian State - Granted contractual license by the state - Made it responsible for construction, planning, operation, maintenance and financing of austrian motorway - Was allowed to levy tolls + user charges - Held: requirments of tripartite test were met - the company was therefore an emanation of the state.

Answer 28

- Portgas = prvate undertaking which had exclusive right to distribute gas in the North Coast region of Portugal - This was a concession granted via a contract of the Portugese government - Looking at if directive 98/38 had direct effect against Portgas - The fact that Portgas, as an exclusive holder of public service concession, fell in group of entities that were covered by the directive was not enough. - Still had to satisfy tripartite test - Held: not clear that Portgas did satisfy this test. - Just because they enjoyed certain special and exclusive rights did not mean that it had special powers

Answer 29

- Further limitation to direct effect concerns criminal liability. - Berlesconi was chairman of a media group at the time falsified accounts were occuring - Later became Italian PM and during this time the penalty for the relevant crimes were reduced. - Directive 68/151 could not have direct effect: directive cannot be relied upon against a private individual.

Answer 30

- even if directives are not directly effective - Their provisions can be used by national courts - In interpreting the meaning and scope of national legislation

Answer 31

- Established principle of indirect effect - Their provisions can be used by national courts - In interpreting the meaning and scope of national legislation - Sex discrimination case in a german prison - Implemented Directive 76/207 Equal Treatment under German law - Argument was successful in court

Answer 32

- Case had similar facts to Von Colson | - But claim was made against a private company

Answer 33

- Case between 2 private companies - Included the company law directive 68/151 - pre existing provisions of Spanish Civil Code - Direct effect not an available measure: because case involved horizontal action between 2 private companies. 1. Made it clear that provisions of unimplemented directive could be used to interpret national law even in purely horizontal action between individuals 2. Does not matter if national law was made before or after the directive - directive can still be used to interpret that law.

Answer 34

Spanish case concerning Directive 80/987 - Held: the directive in question was not directly effective because it was too imprecise to satisfy the conditions for direct effect. Confirmed: indirect effect is NOT possible where the national law expressly contradicts the provision of EU law.

Answer 35

- Held: national courts are not required to interpret national law against the clear meaning of its words - Concerned a framework decision

Answer 36

- Held: obligation National Courts to interpret national law in conformity with a directive exists only once the deadline for the implementation of that directive has passed.

Answer 37

- Case concerned Directive 80/777 | - Required MS to prohibit water from being marketed as natural mineral water where it did not meet certain requirements.

Answer 38

1. No need to find statutory language should be ambiguous before interpreting the legislation 2. Interpretation CAN change meaning of legislation in way that involves substantial departure from the language. Can be more restrictive or expansive. 3. Court must not rewrite legislation in a way that goes beyond interpretation. Interpretation cannot involve court making a decision which involves it making policy choices that it is not equipped to make.

Answer 39

- State liability - Employers of Francovich and Bonifaci became insolvent - Therefore were not paid outstanding wages Directive 80/987 covers such situations, bc it makes each MS establish "guarantee institutions" from which employees from insolvent companies are able to recover some of their lost wages. - directive did not have direct effect

Answer 40

- Treaty article imposed a negative obligation on Member States - Restrained MS from introducing new customs duties, or increasing new ones - this was NOT making them take further action. - Aka a "standstill" article - requires MS to refrain from making certain changes to national law. - So after this it was still unclear if those with positive obligations could be directly effective

Answer 41

- Answered the question of whether treaty articles containing positive obligations could also have direct effect. - Re the scope of Article 110 TFEU - Includes a prohibition on MS introducing the internal taxation measures which discriminate against goods of other MS. - there was a + obligation initially to remove all discriminatory measures - Held: there was no discretion left to MS to give effect to the positive obligation regarding removal of discriminatory internal taxes once the 1st Jan 1962 deadline had passed - Therefore the provision became directly effective.

Answer 42

- If treaty articles can have direct effect against the State and organs of the state - But VGeL left it open as to whether it can have direct effect against private individuals and private bodies.

Answer 43

- If a treaty article can have direct effect against private individuals/bodies

Answer 44

- Defrenne v SABENA - Courts held that a treaty can have horizontal direct effect. - Said that unless it could have direct effect, the effectiveness of thep rinciple of equal pay for equal work contained in it would be adversely affected

Answer 45

- Yes they are - Under Article 288 TFEU - Both are capable of being directly effective

Answer 46

- Regulations are directly applicable - And therefore capable of producing direct effect. - Courts said that it would be 'incompatible' with the binding effect attributed to decisions by article 288 to exclude in principle the possibility that persons affected might invoke the obligation imposed by a decision. - This was put in doubt by Politics SAS v Ministry for Finance of the Italian Republic. (Franz Ferdinand was in doubt of the politics of the SAS.)

Answer 47

- Antonio Munoz y Cia SA v Frumer Ltd | - But they still have to comply with the Van Gend En Loos criteria.

Answer 48

- Held: provisions of 2 regulations did NOT have direct effect - bceause those provisions required MS specifically to define the phrase "farmer practising farmer as his main occupation" - Therefore MS had to take further actions to implement the provisions.

Answer 49

- Carp Snc Moleri v Ecorad Srl

Answer 50

- Grimaldi v Fonds des Maladies Professionals.

Answer 51

- They are only binding on MS - They always have to be implemented by those MS - They fail the Van Gend En Loos test because they do not have direct effect, as they are inherently conditional.

Answer 52

- They can have vertical direct effect against the state - As long as they satisfy VGeL criteria - Dutch scientologist refused work in London - Refused entry into UK - Article 45 TFEU provides for free movement of workers subject to derogations - Sought to rely on the provision made in Article 3 of the Directive. - Held: directive here could have direct effect.

Answer 53

- Held: Member state cannot rely against individuals on its own failure to perform the obligations that the Directive entails. - This rationale succeeded in getting the rebellious national courts to accept the direct effect of directives - Has also informed principles that the Court subsequently developed to govern the direct effect of Directives. - Courts also said that a directive can only have direct effect once the deadline for its implementation of a directive has passed and not beforehand.

Answer 54

- Directive must be implemented either by the date specified in the directive - If the directive is silent, must be within 20 days of publication of the directive

Answer 55

- Concerned the simple failure to implement a Directive - Head of a company whose board of directors decided to package its solvents in conformity with Directive 73/173 - To apply Directive 77/728 to its varnishes - These directives had not been implemented into Italian law - Was prosecuted to infringe Italian law which was more stringent than the directives. - Sought to rely on the directives, was found that Directive 73/173 had direct effect as the deadline for its implementation had passed. - Said that MS who have not adopted the implementing measures required by the directive cannot just rely on their own failure to perform the obligations.

Answer 56

- Directive could have direct effect where MS has only partially or incorrectly implemented it. - Result was that an individual may be able to rely on directive in national court of MS where the directive has NOT been implemented at all by that MS - Or has only been partially or incorrectly implemented by it - As long as the implementation date for that directive has passed and its provisions satisfy other conditions for direct effect.

Answer 57

- Held: even when a directive has been completely and correctly implemented into national law by MS - Individual may continue to rely upon a clear, precise and unconditional directive in their national court - When these national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it .

Answer 58

- Marshall v Southampton and South West Area Health Authority (Teaching No 1) - Established that a Directive cannot have direct effect against private entity Because under Article 288 TFEU, it is only binding on the MS to whom it is addressed.

Answer 59

- Argued that courts should find that directives are capable of being horizontally directly effective. - Court of justice in that case did not take up his recommendation and confirmed that directives can only have vertical direct effect.

Answer 60

- Tax authorities (Becker) - Local / regional authorities (Fratelli) - Constitutionally independent police force responsible for maintenance of public order and safety. (Johnston)

Answer 61

- Foster v British Gas - 6 women forced to retire at age 60, this was the policy of British Gas. - Wanted to rely on Equal Treatment Directive 76/207. - Bipartite test, tripartite test, the answer.

Answer 62

- Bipartite test: 1) subject to authority of control of the state. 2)special powers beyond those that come from normal rules applicable to relations between individuals - Tripartite test: 1) Responsible for providing public service 2) under control of the state 3) has for this purpose special powers beyond those which result from the normal rules. • Cumulative test All elements must be satisfied

Answer 63

- Tripartite test - Held that Rolls Royce = NOT emation of the state - Despite all shares being owned by the government and its nominees - Operated as 'commercial undertaking' and traded with government at 'arms length'

Answer 64

- Tripartite test - Held that it did satisfy all 3 elements, so WAS an emanation of state. - Provided a public service by acting as water / sewage undertaker, and had a range of special powers e.g. to impose hosepipe bans.

Answer 65

- National Union of Teachers v St Marys Junior School. - Voluntarily accepted state aid and entered the state education system. - Wrong to treat the Tripartite test as a "statutory definition" - There was no need to demonstrate any special powers in this case.

Answer 66

- Kampelmann v Landschaftsverband Westfalen Lippe - Claims against Landschaftsverband, which were responsible for construction of highways and maintenance etc. - Courts did NOT use the tripartite test at all - Held that the directive could be relied upon against those that are subject to the authority/ control of the state OR have special powers (Eleven v Matilda)

Answer 67

- Bipartite test was used - Decided that 2 LLC's were emanations of the state. - Companies had been established and were owned by a local authority association - For the purpose of providing social assistance to disabled people by giving them a workplace.

Answer 68

- Held that a body was NOT emanation of the state - Failed the tripartite test - Seeking annulment of Directive 98/43/EC relating to the advertising and sponsorship of tobacco products. - Needed to prove that they were directly and individually affected by the Directive. - Una film argued that it was under the control of the State and therefore was an emanation of the state, so Directive would have direct effect against it.

Answer 69

- Reiser Internationale Transport v Autobahnen? - Austrian company - Had been incorporated as a private company - their sole shareholder was the Austrian state. - Responsible for checking + financing motorways. - Gov had right to check all company measures, demand information about its acitivities at all times and impose objectives etc. - Held: requirements of the tripartite test were filled = emanation of the state.

Answer 70

- Portgas. - Private undertaking that has gas distribution rights. - Court felt that it was not clear if Portgas satisified the Tripartite test. - They ruled that it WAS an emanation of the state and passed the tripartite tests elements.

Answer 71

- Civil code was amended when he became prime minister, which had the effect of reclassifying his offence from indictable offence to summary offence. - Held: the directive could not be given direct effect to set aside the more lenient criminal penalties imposed by Italian law. - Also, directive cannot be relied upon against a private individual.

Answer 72

1. Indirect effect | 2. State liability

Answer 73

- Provisions can be used by national courts in interpreting the meaning and scope of national legislation. - Established in Van Colson v Kamaan Land

Answer 74

- Von Kolson v Kamaan land. • This was a vertical claim by 2 female social workers against an emanation of the state. - Rejected females in favour of less well qualified prison guards. - Wanted to implement Equal Treatment Directive 76/207 - They were successful but under national law they only enetitled to 'nominal damages' in form of travel expenses. - Article 6 Equal Treatment Directive not sufficiently clear precise and unconditional to be directly effective. - Held: courts required to interpret their national law in light of wording and purpose of a directive. - Duty to interpret only goes as far as the national court was given discretion to do so under national law.

Answer 75

- Similar facts to Von Colson

Answer 76

1. Made it clear that the provisions of an unimplemented directive could be used to interpret national law - even in a purely horizontal action between individuals Does not matter if national law had been made before or after the directive: it can still be used to interpret that law.

Answer 77

- Held that the obligation to interpret national law in conformity with EU law - Requires the national court to consider the national law as a whole

Answer 78

- Confirmed that there are limits to how far the interpreative obligation can be pushed to give indirect effect to EU law - First case to do this was Wanger Miret v Fondo - This also originated in Spain - Concerned Directive 80/987 which required MS to establish a guarantee institutions to pay wages / other claims owned to the employees of companies that had become insolvent.

Answer 79

- Adeneler v Ellinikos organismos Galaktos (ELOG) - Held: the obligation on national courts to interpret national law in conformity with a directive exists only once the deadline for implementation of that directive has passed.

Answer 80

- Case concerned Directive 80/777 - Which required MS to prohibit water from being marketed as natural mineral water where it did not meet certain requirements - Dutch law had been implemented to enact this but had not yet come into force. - Held: indirect effect was limited by the general principles of EU law, in particular the principles of legal certainty and non retroactivity. - This prevents a MS from relying on a directive itself and independently of an implementing law to determine or aggravate criminal liability.

Answer 81

1. Language does not have to be ambiguous to be interpreted 2. Interpretation can change the meaning of the legislation: can read language more restrictively or expansively 3. Court must not rewrite the legislation in a way that goes beyond interpretation - cannot adopt a meaning that departs from fundamental feature of legislation Interpretation cannot entail court making decision which involves it making policy choices that it is not equipped to make.

Answer 82

- Individual to recover compensation from a MS where he / she has incurred loss - As a result of the failure of that MS to fulfil its obligations under EU law - Courts wanted to lay responsibility of such failures at the feet of MS.

Answer 83

- Francovich & Bonifaci v Italian Republic - Employers of FB became insolvent and they were not paid outstanding wages. - Directive 80/987 appeared to cover this situation - Required each MS to establish guarantee institutions from which emploees could get some of their lost wages back. - Italy was found guilty of being in breach of their obligations under EU law - Direct and indirect effect were not satisfied by this directive. There was also no pre-existing law that could be interpreted through indirect effect in conformity with its object and purpose. - But italy could be held liable for not having implemented this Directive, in breach of its obligations under EU law.

Answer 84

1. Result prescribed by the directive should entail the grant of rights to individuals 2. Should be possible to identify the content of those rights on the basis of the provisions of directive. 3. Must be a causal link between the Breach of the States obligation and the loss and damage suffered by the injured parties.

Answer 85

- Failure by MS to take any steps to implement a directive?

Answer 86

- Can also be discussed in the context of indirect effect? - Spain failed to take steps to bring its national law in line with Directive 80/897. - Because the existing Spanish law already complied with the Directive - Senior management was specifically excluded by the relevant Spanish law from the ambit of the guarantee fund - this exclusion had not been provided by the ambit of the Directive. - Held: spanish state was liable to compensate a senior manager of an insolvent company for the loss of his unpaid salary - As the loss had been caused by Spains failure to implement the Directive properly in respect of these senior managers.

Answer 87

- Brassiere - claim by French Brewers against Germany, for damages because they were forced to stop beer exports to Germany. - Factortame - claim for damages by Spanish fishermen against the UK. Legislation was passed which prevented them from fishin in UK waters - required fishing vessels to be British owned and managed from UK. Held: the principle of state liability applied to any case in which a MS breaches EU law - regardless of whichever organ of the State was responsible Held: NOT necessary for MS to have had limited discretion as to how it should act, as Italy had in Francovich.

Answer 88

- "manifestly and gravely disregarded the limits of its discretion" 1. Clarity + precision of rule breached 2. Measure of discretion left to the MS by the rule 3. Whether the breach was intentional or excusable 4. Extent to which a position taken by a Union institution must have contributed to the breach 5. Extent to which MS had adopted / retained national measures contrary to EU law.

Answer 89

- BT sought losses that it suffered from the manner in which UK implemented Directive 90/351. - Court agreed that the UK had misunderstood what was required by the Directive + incorrectly transposed it into national law - Held: was not liable in damages. • Lack of precision in relevant provision of the Directive • UK interpretation was made in good faith • Same interpretation that UK made was made by other states • Interpretation was "not manifestly contrary to the wording of the directive or objective persued by it" No guidance available through either case law or court of justice which had not raised matter with the UK when it had implemented the directive.

Answer 90

- Hedley Lomas wanted to get damages from ministry of agriculture in UK - For refusing to grant export licenses to allow live animals to be exported from UK to Spain - Accepted that refusal to grant the licenses was a restriction on the free movement of goods, contrary to Article 35 TFEU. - Wanted to rely on Article 36 TFEU derogation of protection of life humans / animals - Held: article 36 TFEU could not be relied upon, because Directive 74/577 had already been adopted to achieve the objective for which Article 36 was being invoked (to ensure animals are stunned before slaughter.)

Answer 91

- Made it clear that the "sufficiently serious" test was not confined to situations where MS had wide discretion - But also applicable to situations in which MS had limited / no discretion at all

Answer 92

- Dillenkofe v Germany - Held: the conditions in Francovich and those in Brassiere du Pecher were the same in substance. - Failure to implement directive before implementation deadline has passed (like in Francovich)- is of sufficiently serious breach under Brassiere du Pecher test - In this case it was based on the failure of German government to implement Directive 90/314 on package travel - therefore holiday makers could not be refunded if the package organiser became insolvent.

Answer 93

- Because it may not be possible to interpret national law | - In conformity with the object / purpose of relevant EU law

Answer 94

- Compensation

1 - EU Law and National Law: Supremacy, Direct, Effect, Indirect Effect and State Liability Flashcards

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