Direct Effect, Indirect Effect and State Liability

Question 1

Van Gend en Loos

Answer 1

Treaty articles can be directly effective (individuals can really on them in their own national courts) where they satisfy the following criteria. They are:
• Sufficiently clear and precise
• Unconditional
• Leave no room for discretion in implementation on the part of the member state

Question 2

Defrenne v SABENA No 2

Answer 2

Individuals can rely on treaty articles in horizontal direct effect claims where the articles in question meet the Van Gend criteria

Question 3

Leonesio

Answer 3

Regulations have vertical direct effect

Question 4

Antonio Munoz

Answer 4

Regulations have horizontal direct effect

Question 5

Van Duyn

Answer 5

If a state has failed to implement a directive at all, or failed to properly implement it, directives can have vertical direct effect if the Van Gend criteria are met

Question 6

Ratti

Answer 6

Directives can only have vertical direct effect after the deadline for implementation has passed

Question 7

Faccini Dori, Duke v GEC Reliance

Answer 7

Directives do not have horizontal direct effect

Question 8

Marshall

Answer 8

Public authorities - including ‘emanations of the state’ - can be subject to vertical direct effect claims based on directives

These claims can be made even when the body is acting in a non-public capacity, such as in employment

Question 9

Foster v British Gas

Answer 9

Established the criteria as to which bodies should be considered an ‘emanation of the state’ for the purposes of vertical direct effect claims. It can be considered an emanation of the state if it:
• Is responsible for providing a public service
• Is under the control of the state
• Has special powers

Question 10

NUT

Answer 10

Not all of the Foster criteria need be met for a body to be considered an emanation of the state

Question 11

Article 4(3) TEU

Answer 11

Requires member states to take all appropriate measures to ensure the fulfilment of their Union obligations - Raised in Von Colson as underpinning of doctrine of indirect effect

Question 12

Von Colson

Answer 12

ECJ ruled that Article 4(3) TEU placed on obligation on national courts to interpret national law in a way which is consistent with the objectives of directives (indirect effect)

Question 13

Marleasing

Answer 13

National courts should interpret non-implementing legislation (legislation passed before the directive) in line with the objectives of directives, as far as it is possible to do so

Question 14

Pfeiffer

Answer 14

National courts should interpret their body of law as a whole in line with the objectives of directives, as far as it is possible to do so

Question 15

Wagner Miret

Answer 15

Indirect effect does not apply where national legislation clearly conflicts with the directive

Question 16

Luciano Arcaro

Answer 16

Indirect effect does not apply where it would impose criminal liability

Question 17

Francovich v Italian State

Answer 17

Where a state has failed to implement or has improperly implemented a directive, the state may be liable for damages owing to a breach of an individual’s EU rights contained in the directive. Established the criteria for such a claim:
• The directive was intended to confer rights on individuals
• The content of the rights conferred can be identified in the directive, and
• There was a direct causal link between the breach and the damage sustained by the injured party

Question 18

Brasserie du Pecheur/Factortame

Answer 18

Added to the Francovich criteria that the breach must be ‘sufficiently serious’ for individuals to be entitled to damages, and established that states can be liable to individuals for any breach of EU law, including treaty articles and regulations.

Question 19

Dillenkofer

Answer 19

A sufficiently serious breach is understood as where a state ‘manifestly and gravely’ disregards the limits on its powers, and a failure to implement a directive at all automatically meets this test

Question 20

Ex Parte BT

Answer 20

States may be able to avoid state liability for incorrect implementation of a directive if they were given wide discretion, and they have a reasonable excuse for the mistake in implementation

Question 21

R v MAFF ex p Hedley Lomas

Answer 21

Administrative acts which breach EU law may give rise to state liability

Question 22

Kobler v Austria

Answer 22

Judicial Acts which breach EU law may give rise to state liability

Question 23

Article 288 TFEU

Answer 23

Regulations are directly applicable to member-states

Question 24

Farrell v Whitty

Answer 24

A private body can be considered an emanation of the state if it has been delegated a public service task and satisfies either the special powers or control condition