Direct effect

Question 1

Van Gend En Loos

Answer 1

Judicial creation of Direct Effect.
Non prescriptive test (to avoid discrepancies in application)
1. Clear and precise?
2. Unconditional?
3. No discretion in implementation?

Question 2

Defrenne v SABENA

Answer 2

Treaty articles and Regulations can have horizontal direct effect, as well as vertical

Question 3

Grad v Finanzamt

Van Duyn v Home Office

Answer 3

Directives can have direct effect

Question 4

Ratti

Answer 4

Direct effect of directives can only happen when the date of implementation has passed

Question 5

Smith v Meade

Answer 5

Direct effect of directives only applies vertically, not horizontally (unlike articles and regulations)

Question 6

Marshall v Southampton AHA

Answer 6

For a directive to have direct effect, action must be imputed to state. What is state? In this case, NHS was an emanation of the state so Directive (regarding non-discrimination in retirement ages) was directly effective.

Question 7

Foster v British Gas

Answer 7

Directives are only vertically directly effective. What is the state? In this case, British Gas (nationalised at the time), was the state. Set out a test:

1. Provision of a public service
2. Under control of state
3. Having been given special powers

Question 8

Doughty v Rolls Royce

Answer 8

Failed the Foster test despite RR being nationalised, as had no special powers and wasn’t offering a public service

Question 9

NUT case

Answer 9

Confirmed that Foster test should not be rigidly applied, acts as guidance only. School governing board was ruled to be an emanation of the state in that case.

Question 10

Farrell v Whitty

Answer 10

Current leading case on emanation of the state, confirming the Foster test is guidance and the three criteria are disjunctive (only one is needed)

Question 11

Faccini Dori v Recreb

Answer 11

Discussion about whether Directives should be given horizontal DE - ECJ said no

Question 12

Grimaldi

Answer 12

Neither recommendations nor opinions have direct effect