Direct effect, Indirect Effect, State Liability Flashcards
1
Q
Koninklijke Scholten Honig NV v Council and Commission (1977)
A
- Regulations are of general application to everyone
2
Q
Directives
A
- Addressed to Member States
- Not directly applicable
- Set out objectivs which MS must seek to achieve but free on how to implement
3
Q
Regulations
A
- Of general application to everyone
- Directly applicable
- Set out general rules to create uniformity in law between Member States
4
Q
Decisions
A
- Binding on their addressees only
- May be addressed to Member States collectively or singularly, or to individuals or undertakings.
5
Q
Art 5(2) TEU
A
- EU can act only within the competences placed upon it by the Member States
- 3 types of competence:
- Where the treaties confer on the Union exclusive competence in a specific area, only the Union may legislate.
- Competences shared with the Member States in a specific area, both may legislate and adopt legally binding acts.
- Competences to carry out actions to support, coordinate or supplement the actions of the Member States, without superseding their competence in these areas.
6
Q
Principle of Subsidiarity
A
- Article 5(1) TEU requires that the EU should only act where the Member States could not achieve similar objectives as effectively, e.g. where EU is better placed to meet objectives because of advantages of scale and effect.
7
Q
Van Gend en Loos [1963]
A
- Treaty articles can have direct effect within the national legal systems of the Member States by conferring individual rights immediately which national courts are required to protect.
- Rights conferred under the Treaty can be relied upon and enforced in proceedings brought in national courts.
- Provisions must be sufficiently clear and precise and unconditional.
8
Q
Costa v ENEL [1964]
A
Supremacy of EU law - asserts the primacy of EU law over the domestic laws of the Member States
9
Q
Futtermittel (1970)
A
EU law takes precedence over the national constitutional law of a Member State including fundamental rights provided by that constitution.
10
Q
Simmenthal (1978)
A
A national court must not wait for a national measure to be set aside, but the EU provision must be given direct effect to the ruling immediately.
11
Q
Direct applicability
A
- Regulation does not need to be implemented into the domestic law of the Member States
- Once adopted, automatically becomes part of their domestic law.
12
Q
Direct Effect
A
- Provisions of EU law may give rise to immediate rights which can be enforced by individuals within the national legal systems of Member States.
- Provision must be sufficiently clear and precise and unconditional.
13
Q
Lutticke [1966]
A
- Direct effect also applied to positive obligations.
- Obliged Member States to remove discriminatory internal taxes post-1962.
14
Q
Defrenne v Sabena (No 2) (1976)
A
Established a treaty article could also have direct effect against private individuals and private bodies (horizontal).
15
Q
Politi v Ministry of Finance for Italian Republic [1971]
A
Regulations and Decisions can have direct effect not only vertically against the Member State but also horizontally against private parties, as long as they comply with Van Gend en Loos criteria.
16
Q
Franz Grad [1970]
A
- Decisions could have direct effect because it would be incompatible with the binding effect of them if they couldn’t.
- Only have direct effect to the party to whom the decision was addressed.
17
Q
Van Duyn [1974]
A
Directives could have direct effect as long as they satisfy the Van Gend en Loos criteria.
18
Q
Ratti [1979]
A
- Member State cannot rely on its own failure to implement a Directive.
- Direct effect can only take place after the implementation deadline has passed.
- An individual may be able to rely on a directive in the national court of a Member State where the Directive has not been implemented at all or has been incorrectly implemented as long as the implementation date has passed and its provisions satisfy the conditions for direct effect.
19
Q
Marshall v Southampton Health Authority [1986]
A
- Directive cannot have direct effect against a private entity, as under Article 288 TFEU, it is only binding on the Member States to whom it is addressed
- However, a directive can be relied upon against an emanation of state.
- In Marshall was a health authority
20
Q
Becker
A
A Directive may be relied upon against tax authorities because they are an emanation of the state.
21
Q
Fratelli
A
A Directive may be relied upon against local or regional authorities because they are an emanation of the state.
22
Q
Johnston
A
A Directive may be relied upon against the police force because they are an emanation of the state.
23
Q
Foster v British Gas (1990)
A
Summarised the test for whether a body was an emanation of the state.
24
Q
Bipartite Test
A
- Organisations which are:
- Subject to the authority or control of the State
- OR
- Had special powers
- are an emanation of the state.
25
Tripartite Test
* A body which:
* Has been made **responsible**, **pursuant to a measure adopted by the State**, for **providing a public service**
* **AND**
* Under the **control of the State**
* **AND**
* Has for that purpose, **special powers**
* Is included **in any event** amongst the bodies against which the **provisions of a** **directive capable of having direct effect may be relied upon**.
* **ALL ELEMENTS MUST BE SATISFIED**
26
Farrell v Motor Insurers Bureau of Ireland [2015]
* Adopted a reformulated version of the **bipartite test:**
* They are legal persons **governed by public law** that are **part of the State** **in the broad sense** such as **local or regional authorities**
* **OR**
* They are **subject** to the **authority or control of a public body**
* **OR**
* They have been required, by such a body, to **perform a task in the public interest** and have been given, for that purpose, such **special powers.**
27
Berlusconi [2005]
* A directive **cannot** have the direct effect of **determining or aggravating criminal liability** **and** a **directive cannot be relied upon against an individual**.
28
Van Colson [1984]
* Established principle of **indirect effect**
* **National courts must interpret national laws** (particularly any that implement EU directives) **as far as possible** i**n a manner that is consistent with the provisions of EU law even if they do not have direct effect**.
29
Harz [1984]
Established that **indirect effect applies vertically** (against State) **or horizontally** (private bodies/individuals)
30
Marleasing [1990]
* The provisions of an **unimplemented directive** could be **used to interpret national law**, **even in a purely horizontal action between individuals**.
* It **does not matter if the national law has been made before or after the directive**: directive can still be used to interpret that law.
31
Wagner Miret [1993]
**Indirect effect** is **not possible** where the **national law expressly contradicts the provision of EU law**
32
Pupino [2005]
**National courts** are **not required to interpret national law *contra legem***, againt the clear meaning of the words.
33
Adeneler [2006]
**Obligation** on national courts to **interpret national law** **in conformity with a directive** **exists** only **once the implementation deadline has passed**.
34
Kolpinghuis Nijmengen [1987]
* Indirect effect is **limited** by the **general principles of EU law**, in particular **legal certainty** and **non-retroactivity**.
* Principles **prevent a Member State** from **relying** **on a Directive itself** and **independently of an implementing law** to **determine** or **aggravate criminal liability**
35
State liability
* **Allows an individual to recover compensation from a Member State** **where** he or she **has incurred loss as a result of the failure of that Member State** to **fulfil its obligations under EU law**
* **May provide a remedy to a person** in circumstances **where neither direct effect nor indirect effect is applicable.** Equally**,** it **applies where both remedies are available.**
36
Francovich & Bonifaci [1991]
* MS **can be held liable** for **not having implemented a Directive in breach of its obligation under EU law**
* Justified on basis
* MS are **required to fulfil their Treaty obligations** and this **included remedying the consequences of breaching those obligations**.
* **effectiveness of EU law would be circumscribed** where MS not obliged to provide a rememdy where loss caused as a result o breach of obligations under EU law.
37
3 conditions for State Liability in Francovich
1. Result prescribed by Directive should **entail the grant of rights to individuals**
2. Should be **possible to identify the content of those rights** on the basis of the provisions of the Directive
3. Must be a **causal link** between the breach of the State’s obligation and the loss/damage suffered by injured parties
38
Brasserie du Pecheur
* Established principle of **state liability applied to any case in which a Member State breaches EU law**, **irrespective of which organ of the State was responsible**, and **even if the measure had direct effect**
39
3 conditions from Brasserie du Pecheur to satisfy claim for state liability
1. Rule of Law infringed must be intended to **confer rights on individuals**.
2. The breach must be **sufficiently serious** - state **manifestly and gravely disregarded the limits of its discretion**
3. Must be a **causal link** between the breach of the State’s obligation and the loss/damage suffered by injured parties
40
Factors to consider whether breach sufficiently serious to satisfy a claim in state liability
* **Clarity** and **precision** **of rule breached**
* Measure and **Discretion** **left to Member State** by the rule
* Whether breach was **intentional**
* Whether breach was **excusable**
* **Extent** to which position taken by the Union **institution** may have **contributed to the breach**
* **Extent** to which **Member States** had **adopted/retained** national **measures contrary to EU law**
41
R v HM Treasury, ex p British Telecommunications Plc
UK had made an honest attempt to implement the Directive, and its failure to do correctly had been understandable in the circumstances, and was not sufficiently serious as a result
42
ex p Hedley Lomas Ltd
A **breach** will be **automatically sufficiently serious** **where** the **State had no or sufficiently limited discretion** as to how it was to act **under the particular EU measure**
43
Dillenkofer v Germany [1996]
* Court **reconciled the tests in Francovich and Brasserie du Pecheur** by holding that the **conditions were the same in substance**
* **Failure by a Member State** to take steps **to implement a directive once the deadline for implementation has passed,** as was the case in Francovich, **is** of itself a **sufficiently serious** breach under the Brasserie du Pecheur test.
44
Limitations of Direct Effect
* Must meet **Van Gend en Loos conditions**
* **Doesn't apply** if claim is **based on a directive against a private party -** Berlusconi
45
Limitations of Indirect Effect
**Must be able to interpret national law** i**n conformity with the object and purpose of the relevant EU law**.
46
Limitations of State Liability
* Only provides **compensation**
* Breach must be considered **sufficiently serious**
