Direct Effect

Question 1

Principle in Factortame No 2 (HL)

Answer 1

UK court has duty to override national law in conflict with directly enforceable EU law.

Question 2

What are the two objectives pursued by Direct effect?

Answer 2

1. Protect individual EU rights in national courts

2. Ensure MS compliance with EU law under principle of loyal cooperation Art 4(3) TEU

Question 3

What is the connection between Direct Effect and Commission’s power to bring actions against MS?

Answer 3

They operate independently, though allows EU law to be effective much quicker than litigation against MS by the Commission.

Question 4

Which types of EU law did Van Gend en Loos deem directly effective?

Answer 4

Primary and secondary (treaties and legislation)

Question 5

What were the three conditions for direct effect set out in Van Gend en Loos?

Answer 5

1. Sufficiently clear and precise
2. Unconditional
3. Not dependent on further action by MS

Question 6

Facts and law in Zaera

Answer 6

Provision of EU law was “raising the standard of living” which a Spanish pensioner attempted to rely on.

HELD - direct effect excludes provisions that are too general, vague, or merely aspirational.

Question 7

Facts and law in Van Duyn

Answer 7

Scientology worker refused entry because membership of “socially harmful” organisation

HELD - Regarding condition 2, unconditional, A provision which allows derogations which are subject to judicial review are directly effective if they impose a clear obligation.

Question 8

Facts and law in Defrenne

3 points of law

Answer 8

female airline cabin crew claimed discrimination based on right to equal pay. Wording of Treaty was that the “principle” of equal pay should be applied.

HELD -

1. “principle” was sufficiently precise.
2. The third condition (not dependent on further action) could not be defeated by the failure of certain MS to discharge the obligation.
3. Direct effect applies also horizontally if 3 conditions are satisfied.

Question 9

Are regulations directly effective? Name 2 main cases

Answer 9

Amsterdam Bulb - Two major breakthroughs:

1. Regulations operate independently of any measure of reception in national law.
2. Regulations are subject to same VGL conditions and capacity for horizontal effect

Leonisio; Frumar and Redbridge - regulations must be directly effective by virtue of their purpose and nature.

Question 10

Are decisions directly effective? Name 2 main cases

Answer 10

Grad - can have direct effect justified by notion of invocability, or more precisely, conferral of rights.

Carp; Foslev - reluctant to allow decisions addressed to MS to have horizontal direct effect, but left open possibility of horizontal direct effect if decision was addressed to private party. (Latter point confirmed in Foslev)

Question 11

What is step one in evaluating directives?

Answer 11

Only directly effective if time limit has elapsed (Ratti; Becker)

Question 12

What is step two in evaluating directives?

Answer 12

Directly effective if:

1. MS did not implement directive at all (Ratti)
2. Incorrect implementation (VNO); or
3. Ineffective implementation (implementing correctly then adding bureaucratic constraints like making a claim overly difficult) (Marks & Spencer)

Question 13

What is step three in evaluating directives?

Answer 13

VGL conditions minus the third requirement:

1. Sufficiently clear and precise
2. Unconditional

Question 14

Which case said that MS have limited discretion when implementing a Directive, and have no discretion not to fully & properly implement it?

Answer 14

Enka.

Question 15

What is the first justification of directly effective directives in Van Duyn?

Answer 15

Effectiveness of EU law. The MS have no discretion whether to implement, merely how to implement (Enka). The binding nature of directives will be better enforced by dual vigilance, allowing individuals to rely on them.

Question 16

What is the second justification of directly effective directives in Van Duyn?

Answer 16

Textual reason. Art 267 TFEU allows national courts to refer questions concerning any EU measure to CJEU. Provisions are not referred, in the face of expensive litigation, unless they are directly effective. Therefore there is the relevant implication of direct effect in Art 267.

Question 17

What is the third justification of directly effective directives? And what case?

Answer 17

Ratti - Estoppel. MS cannot deny a directive’s effect by relying on their own failure to properly implement it.

Question 18

Why are Directives not horizontally directly effective? (Name case)

Answer 18

Marshall/Dori - Marshall: says that the binding nature of a Directive, which constitutes the basis of direct effect, exists only in relation to the State, not capable of conferring rights upon individuals.

Question 19

Name two examples of “emanations of the state”

Answer 19

Johnston - Chief Constable

Fratelli - Local authorities

Question 20

What was the health authority referred to as in Marshall?

Answer 20

Organ of the state.

Question 21

What argument did the AG Lenz bring forth for the court in Faccini Dori to revisit Marshall, but was refused?

Answer 21

Effectiveness of EU law - since the Estoppel argument could not be applied under Marshall’s reasoning for prohibition of horizontal disputes.

Question 22

What are the three limbs of the Foster test?

Answer 22

1. A body, which
2. Has been made responsible, pursuant to a measure adopted by the State, for providing a public service under Control of the State and
3. Has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.

Question 23

What are the critical analysis aspects of the Foster test?

Answer 23

Control of the State

Special powers beyond normal rules between individuals.

Question 24

Facts in Scholz

Answer 24

Italian University, under Foster test:

Made responsible for providing education; and
Was granted special powers to award degrees and qualifications

Question 25

Doughty v Rolls Royce

Answer 25

Conflicting authority - holding that Foster’s factors were exhaustive; and

departed from in National Union of Teachers v The Governing Body - factors are INDICATIVE.

Question 26

Farell - CJEU

Answer 26

Farell qualifies the Foster test, demonstrating that it is not exhaustive. Either condition I and II; or I and III must be satisfied.