Direct effect Flashcards
What is DE? (+ 2 types)
allows individuals to rely upon EU law and invoke it directly before their national courts.
Vertical direct effect is between a private party and a member state while horizontal direct effect is between private parties.
Where was the doctrine established?
Van gend en loos
Dutch company imported chemical substances from neighboring States into the Netherlands. The Dutch Customs and Excise Administration charged the company a Custom duty of 8% on the imported substances. The company wished to obtain a reimbursement.
Held: Direct effect of Art 28 TFEU
Direct effect of treaty provisions occurs where:
1. the provisions of the treaty are clear, precise and unconditional AND
2. the provisions are not dependent on any further action by member states or EU institutions.
Doctrine being used (gender equality)
Defrenne
Belgian air hostesses paid less than male counterparts - no belgian law against such
Held: Art 157 TFEU gender equality for pay is clear precise and unconditional and not dependant on further action
Direct Effect and Types of EU Legislation
Regulation -> binding in its entirety
Directive -> Some discretion for countries to tailor it to their law and local circumstances.
Decisions -> Binding
Direct Effect of Directives (+ 2 Secondary Sources)
Van Duyn - Scientologist case
New criteria for direct effect of D set out:
The provision of the directive must be Clear and precise and Unconditional
Time limit for implementation has expired
Mancini - CJEU guided by political considerations
+ Weatherill mentions that there is a general problem of interrelation of national law with the EU legal order. They are reliant on state implementation.
Direct Effect of Directives Time Limit
Ratti - labelling solvents case, sought to rely on eu law instead of italian law
time limit for implementation had not expired, no direct effect
Direct Effect of Directives Time Limit Exception
Wallonie - MS must refrain from taking measures liable seriously to compromise the result prescribed
Horizontal Direct Effect Treaties
Bosman - art 45 tfeu held to have DE against private bodies
Horizontal Direct Effect Charter
Egenberger - tried to get a job but was not religious while the charity required such
Argued was in breach of directive
Held: no horizontal effect of directive as charity was private body, but charter outlined prohibition on religious discrimination - able to rely on provisions of charter that give rise to individual rights through H DE
Should horizontal direct effect of Directives be permitted?
For:
No difference in practice from other EU instruments.
If we expect organisations to follow something like the GDPR, why should they not keep up to date with things in directives
Citizens expect to be able to rely upon Directives, like the work-life balance directives which confers additional rights. Citizens should be able to enforce it against their employer.
Rights should not vary between public & private bodies (e.g. employment rights).
eg. Nurse working for the HSE should not have limited rights compared to a nurse working for a private hospital.
Distinction between public/private bodies is often blurred. Enforcing horizontal direct effect would put them on an even playing field.
Against:
Difficult for individuals to know their obligations.
Directives are addressed to states not to individuals.
Individuals cannot know faults in national implementing legislation.
Burden in private actors being aware of directives that apply to them.
Vertical Direct Effect Directive State Bodies
Marshall - Differing retirement ages for men and women in UK - marshall dismissed from work due to her age but argued this breached the equal rights directive
Held: No H DE of Directive, but can be Vertical if it is ‘part of the state’ eg NHS in this case
Vertical Direct Effect State Bodies Expanded
Foster - same facts as Marshall but worked for British Gas
Held: State owned BG entirely, Minister could appoint directors, had a monopoly, test set forth:
- provided a public service under state control/authority and
- had special powers
Vertical Direct Effect Directives State Bodies Ireland (+General Sharp)
Farrell injured in a van; uninsured driver, but no breach of Irish law.
Motor Insurers’ Bureau Ireland (MIBI) refused to pay compensation to her.
Could the Motor Insurance Directive be enforced against MIBI?
Held: Foster Criteria do not all need to be present (can be private sector company)
State delegates performance a task in the public interest
Possesses, for that purpose, special powers
General Sharpston said the problem of public vs private sectors difference would be better by allowing horizontal direct effect of Ds but the Court did not accept this recommendation.
