Direct and Indirect effect Flashcards
Direct effect
if a provision of EU law is directly effective, it gives rise to rights upon which individuals can rely directly in the national court
Indirect effect
national law must be interpreted in accordance with relevant EU law. Indirect effect can overcome the limitations of direct effect, notably in relation to directives
Van Gend en Loos - Direct effect
Direct effect was created by the court in this case
* the case established that treaty articles are capable of direct effect
Requirements for direct effect
Van Gend established:
* measure must be sufficiently clear and precise
* unconditional
* it’s implementation must not depend upon any implementing measure (this condition was relaxed and eventually disgarded
Van Duyn v. Home Office - direct effect
Established that directives were capable of vertical direct effect
* also esablisjed that the directives had to be sufficiently clear, precise, and unconditional to be directly effective
Marshall v Southampton & south west Hampshire Health Authority (1986) - direct effect
Direct effect could only apply vertically and not horizontally to directives
* the court has been persistent about this (seen in cases like Dori v. Recreb Srl [1994]; Unilever Italia SpA v. Central Food SpA)
* this decision has been criticised, in the employment context, a person employed by a public body/ the state has more protection than a person who is employed by a private company
CIA Security International SA v. Signalson SA and Securitel SPRL
Established incidental direct effect
Facts:
* CIA Security was sued in Belgium for marketing an unapproved alarm system, violating Belgian law.
* However, CIA argued that the Belgian law itself was invalid because Belgium had failed to notify the EU Commission about it, as required by an EU directive (Directive 83/189).
* Essentially, CIA admitted breaking Belgian law but claimed the law was unenforceable due to Belgium’s own breach of EU rules.
* As a result the national measure was disapplied and this indirectly benefitted CIA security
Unilever Italia SpA v. Central Food SpA [2000]
Affirmed CIA security and the use of incidental effect
However, AG Jacobs thought this case should be decided different,ly because:
* different type of proceedings - current case is a civil dispute and CIA was a contract case
* nature of the infringement - current case the party had notified the commission but had just failed to comply with the standstill clause, whereas in CIA the state had not notifief the commission at all
CJEU saw this case as of the same type as CIA and thus applied incidental effect.
Pubblico Ministero v. Ratti [1979] - direct effect
established the estoppel justification
* Directives can only have direct effect once the deadline for their implementation has passed as established by the Ratti case. This is because the discretion given to Member States to implement the directive in their own way expires at this point, making the obligations precise and clear enough to be directly effective
* Estoppel Justification: Member States should not be allowed to benefit from their failure to implement directives.
Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] - indirect effect
Established indirect effect
The principle of indirect effect: national law must be interpreted in accordance with relevant EU law
Foster v British Gas [1990] - direct effect
Established a 3 limbed test for determining whether something was a public body/ emination of the state -
* Does it provide a public service?
* Is it under state control?
* Does it have special powers for the purpose of that public service? (beyond those normally applicable between individuals)
Bodies that satisfy all three elements clearly qualify as ‘public bodies’
* however, Saint Mary’s Church of England Junior School and others 1997 – suggested that not all limbs of the Foster test need to be satisfied for a body to be established as a ‘public body’ = maybe a more relaxed approach
✅British Gas (Foster) = state emanation.
❌ Rolls Royce (Doughty) = private.
Marleasing SA v. La Comercial Internacionale de Alimentacion SA [1990] - indirect effect
established that national courts must interpret domestic law in line with EU directives “as far as possible”
even if:
* The directive has not been implemented by the member state .
* The national law predates the directiveThe obligation applies to all national laws, not just those enacted to implement directives
The obligation applies to all national laws, not just those enacted to implement directives
Luciano Arcaro [1996]
Arcaro established a significant limitation on the obligation of national courts to interpret national law in conformity with EU directives (limit on the principle established in Marleasing)
- If interpreting national law to match a directive would harm an individual (e.g., by making them criminally liable where they wouldn’t be under national law alone), courts must stop short.
- Indirect effect cannot override legal certainty or the principle of non-retroactivity in criminal law (nulla poena sine lege).
Centrosteel v. Adipol [2000] - indirect effect
The Court ruled that Italian law requiring registration for commercial agents could not stand because it conflicted with Directive 86/653, which only required written contracts and not registration.
* The Court used the term “precludes” (not just “interpret in light of”), suggesting national law must be disapplied if it contradicts the directive’s core requirements - goes further than the court just interpreting in line with EU law ‘as far as possible’
* This approaches “exclusionary effect” (Craig’s term), where the directive blocks conflicting national rules, even if not directly enforceable
