Direct and indirect effect

Question 1

Dualism

Answer 1

Where international law must be transposed in order to have effect in national courts.

Question 2

Was monism/dualism choice left to member states?

Answer 2

Yes - as in the European Communities Act 1972 but once a member state was signed in to the EU then all law has direct applicability.

Question 3

Van Gend en Loos

Answer 3

Established direct effect of EC treaties, which established the ‘new legal order’ distinguishing the EC from other international treaties.

Question 4

Conditions for direct effect

Answer 4

Set out in Van Gend. The law must be:

• precise
• a negative obligation
• unconditional (without reservations from MS and not dependent on implementing measures)

Question 5

Direct effect

Answer 5

makes an EU law invocable in national courts and self-executing. It refers to an individual effect

Question 6

Direct applicability

Answer 6

direct applicability refers to the fact that the legislation requires no implementing legislation within individual member states - they take effect as soon as they are published by the European Commission.

Question 7

Three binding EU instruments

Answer 7

regulations, directives, decisions

Question 8

two non-binding

Answer 8

opinions + recommendations.

Question 9

Ianelli v Meroni

Answer 9

Relaxed the strict test of direct effect in Van Gend to allow ambiguous wording to be directly effective. Defrenne reinforced this.

Question 10

Reyners

Answer 10

Further relaxed the strict test of direct effect, as a conditional treaty provision was found to be directly effective (it required extra implementation by directives). Sala v Bayern supported this.

Question 11

Salgoil

Answer 11

found that provisions with reservations could be directly effective.

Question 12

Van Gend test of direct effect today

Answer 12

a provision will have direct effect when it can be applied by a national court.

Question 13

Horizontal direct effect

Answer 13

Defrenne established horizontal direct effect, so EU principles were implicitly horizontally directly effective. It was further illustrated in Familiapress v Bauer.

Question 14

Regulations and direct effect

Answer 14

Regulations are to have general application (Art 288 TFEU) and are always directly effective. They are entirely binding in all Member States and directly applicable, displayed in Zuckerfabric v Council as having legal consequences independent of previous cases.

Legislative discretion stops all regulations having direct effect (Aziendo Agricola Monte Arcosa).

Question 15

Simmenthal

Answer 15

established the supremacy of EU regulations over national laws.

Question 16

Decisions and direct effect

Answer 16

Decisions are binding in their entirety on the party to whom they are addressed (288 TFEU). They can have horizontal direct effect when made in specifically addressed decisions (Grad v Finanzant Traunstein [1970]).

Question 17

Directives and direct effect

Answer 17

Directives are a form of indirect EU law (288(3) TFEU) and are binding on states, not within states. they need to be incorporated through national legislation. They can however be enforced in national courts without being transposed (Van Duyn and then Ratti) but the state must have failed to transpose them (Kolpinghuis Nijmegen [1987]).

Question 18

No horizontal direct effect rule of directives

Answer 18

Traditionally a no-horizontal-direct-effect rule has been used (Marshall and Faccini Dori) supported by a textual, estoppels, systematic and legal certainty argument but this has been undermined by various exceptions.

Question 19

Limitations/exceptions to the no-HDE rule

Answer 19

One limitation is a wide view of the state (Foster), an exception is ‘incidental direct effect’ (CIA Security and Unilever), another limitation is the consistent interpretation doctrine (Von Coulson) which creates indirect effects on private parties (Webb). The consistent interpretation doctrine is limited to applying after the implementation period of the directive and is limited to the wording of the decision (contra legem).

Also the incidental horizontal direct effect of directives has been used in CIA Security and Unilever Italia to confer private rights on individuals.

Question 20

Mangold

Answer 20

Mangold however applied a general principle of EU law through the medium of a directive to have direct effect between two private parties, going against the normative and temporal limitations consistent interpretation. This provides another exception to the no HDE rule.