Direct Effect

Question 1

Define direct applicability

Answer 1

Fully, and uniformly applicable in the MS from the date of its entry without the state implementing it

Question 2

Define direct effect

Answer 2

Confers immediate right on individuals which can be enforced via national courts, without the express implementation of the national court

Question 3

Describe the facts of the Van Gend En Loos case

Answer 3

The Netherlands implemented a duty contrary to article 12 of the treaty of Rome, banning increases in customs duties. VGL took Netherlands to court using direct effect. Duty revoked.

Question 4

What is the reasoning behind the VGL decision?

Answer 4

EEC treaty creates rights as well as obligations. More than just an agreement, new legal order.

Question 5

VGL was upheld on the basis that the negative obligations contained in the treaty were what?

Answer 5

Clear, precise and unconditional

Question 6

Which case allows for positive as well as negative obligations under direct effect?

Answer 6

Lutticke

Question 7

Which case demonstrates that direct effect is horizontally as well as vertically effective in the case of treaties?

Answer 7

Defrenne v SABENA - Female flight attendant

Question 8

Regulations are directly applicable. True or false.

Answer 8

True

Question 9

Regulations have direct effect. True or false?

Answer 9

True

Question 10

Are directives directly effective?

Answer 10

Yes but only vertically

Question 11

What is the authority for the direct effect of a directive?

Answer 11

Van Duyn v Home Office

Question 12

Under what circumstances may a directive have direct effect?

Answer 12

If it is sufficiently clear precise and unconditional (VGL)
If the implementation date has passed and it has not been implemented at all (Ratti).
It has been partially or incorrectly implemented (VNO) or it has been correctly implemented but the national measures are not being applied by national authorities in such a way as to achieve the results sought (marks & Spencer plc)

Question 13

What is the tripartite test of state emanation?

Answer 13

Any body which;

• Is responsible for providing public service
• Is under control of the state
• Has for that purpose special powers

Question 14

What is the bipartite test, and what case was it applied in?

Answer 14

1. Subject to authority of state
2. Special powers beyond those applicable between individuals
3. Kampleman v Landscaftsverband Westfalen-Lippe

Question 15

What is the authority for direct effect having vertical effect?

Answer 15

Marshall

Question 16

What did Costa v ENEL demonstrate?

Answer 16

EU supremacy of law, over Italian law

Question 17

What are the details of Lutticke? What is the ffect?

Answer 17

Removal of discriminatory internal taes in Germany, this is a negative obligation, but shows that direct effect can be for both positive and negative obligations

Question 18

Do articles regulations and directives all have direct effect?

Answer 18

Yes

Question 19

What EEC legislation can have horizontal direct effect?

Answer 19

Regulations an articles

Question 20

What is the authority case for an emanation of the state?

Answer 20

Foster

Question 21

Describe the facts of Marshall.

Answer 21

Woman forced to retire 5 years earlier than men, did she have a claim under an EEC directive? Yes as Southhampton authority is an emanation of the state, so EEC directive has vertical effect.

Question 22

What are the 3 questions that must be asked to ascertain DE from a directive?

Answer 22

1. CPU
2. Implementation date passed
3. State emanation