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Flashcards in Direct Effect & Indirect Effect - pre-revision cards Deck (31)
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1

Van Gend en Loos ('new legal order')

Creation of direct effect – individuals can rely on EU law in national courts (treaty articles)

2

Van Gend en Loos (conditions)

1. Sufficiently precise (Marshall v Southampton)
2. Unconditional (Molkerei-Zentrale Westfalen)

3

Defrenne v Sabena

Court expands the doctrine of direct effect to horizontal direct effect (treaty articles)

4

Van Duyn v Home Office

DE can apply to directives
- textual
- functional
(estoppel argument came in Ratti)

5

Pubblico Ministero v Ratti

Directive is only directly effective after the period of implementation has expired

The deadline is set in a directive, and the MS must legislate, if they don’t do it in time, then individual can use direct effect

6

Reyners v Belgium

Court employed DE to compensate for insufficient action on the part of EU legislative institutions (basic principle of non-discrimination deemed DE)

7

Riksskatteverket v Gharehveran

individual can rely on DE even if MS has fully exercised its discretion on implementation

8

SIMAP v Valencia Sindicatode Medicos Asistencia Publica

individual can rely on DE when state has chosen to exercise or not to exercise a particular discretionary option

9

Marshall v Southampton

no horizontal DE for directives (can't use estoppel argument)

10

Facing Dori v Recreb

confirms no horizontal DE in directives

11

Foster v British Gas

emanation of the state:
- offer public service
- under control of the state
- special powers

12

Griffin v South West Water

Privatised industry was an emanation of the State since it provided a public service and was under the control of the SoS

13

Johnston v Chief Constable

Constitutionally independent authorities responsible for the maintenance of public order and safety

14

Doughty v Rolls-Royce Plc

They said there is sufficient control from the state, and that they had special powers but no public service and held they couldn't rely on the rights for DE

15

National Union of Teachers v Governing body of St Mary’s Church of England Aided School

The Court of Appeal suggested that the Foster test should not be seen as a statutory definition (reference to the term “included” in para.20), it should be interpreted broadly.

- in this case, public service and state control requirements were satisfied but 'special powers' was less clear

16

Kampelmann v Landschaftsverband

loosen the definition - no need to prove all 3

17

Rieser v. Asfinag

- special powers
- no control of the state, state just had supervision powers
- public service

(counted as emanation)

18

CIA Security International

incidental horizontal DE:
• One party suffers a legal determine and the other gains a legal advantage of an unimplemented directive
• Directive does not itself impose an obligation
• Directive removed the protection of the national technical regulation and exposed them to potential liability under other provisions of national law

19

Unilever v Central Food

Court said it isn't horizontal DE, because you're using directive in an exclusionary fashion

20

Arcor v Germany

Can use directive to dis-apply national law but not to give rights

21

Mangold v Helm

using a directive by saying it is a 'general principle' solidified by the directive

(also before period of implementation has expired)

22

Kücükdeveci v Swedex

Court insisted that although it is in a directive, it is not the directive but rather the general principle which must be the basis of the examination

23

Association de mediation sociale

• Court decided that the article that found way though directive cannot itself confer rights
• Even when article is given specific expression by a provision to EU law by the directive the same conclusion should be reached

24

Von Colson v Land Nordhein-Westfalen

Obligation to interpret national law in conformity with directives

25

Marleasing SA v La Comercial International de Alimentacion

INDIRECT EFFECT IN A HORIZONTAL SITUATION

26

Pfeiffer v Deutsches Rotes Kreuz

Interpretive obligation applies not only to national law that implements the directive, but to the national legal system as a whole

27

Grimaldi, Rolex

Regulation also subject to interpretative obligation

28

Kolpinghuis Nijmegen

prosecutor could not use the directive to interpret national law in such a way as to determine or aggravate the individual’s criminal liability

29

Luciano Arcaro

Court suggested narrowing of the principle of interpretation such that where an interpretation of national law in the light of a directive amounted to ‘the imposition on an individual of an obligation laid down in the directive”

30

Wagner-Miret

Can't use indirect effect if it's contra legem

(national law literally exempted them, even though EU law said 'every')