Direct Effect & Supremacy

Question 1

van Gend en Loos

Answer 1

Van Gend en Loos established that treaty articles can have effect directly within the national legal systems of Member States by conferring individual rights which national courts are required to protect.

Question 2

Costa V ENEL-

Answer 2

Supremacy of EU law

Question 3

Internationale Handelsgesellschaft v Einfuhr und Vorratstelle Für Getreide und Futtermittel

Answer 3

showed that EU law takes precedence over national constitutions…Including fundamental rights provided by them.

Question 4

Simmenthal

Answer 4

this case showed that EU law applies: In all national courts; Irrespective of when the national law was enacted and had the effect of disapplying National law.

Question 5

Cooperativa Agricola Zootecnica S. Antonio

Answer 5

this case met the van gend en loos criteria because it sets out an obligation in unequivocal terms, thereby being sufficiently clear and precise, and the obligation was not qualified by any condition or subject, in implementation or effects, to taking of any measure by Community institutions or MSs, making it unconditional.

Question 6

Alfons Lütticke GmbH v Hauptzollamt Saarlouis

Answer 6

answers the question of whether positive obligations can have direct effect- it can!

Question 7

Defrenne v SABENA (No. 2)

Answer 7

demonstrates horizontal effect of treaty articles- where the article has direct effect against private individuals and private bodies

Question 8

Azienda Agricola

Answer 8

demonstrates that regulations can have direct effect

Question 9

Antonio Munoz

Answer 9

demonstrates that regulations can have horizontal effect

Question 10

Carp Snc

Answer 10

demonstrates that decisions can have direct effect so long as they conform to the van Gend en loos criteria

Question 11

Van Duyn v Home Office

Answer 11

CofJ held that directives are capable of direct effect,

Question 12

Pubblico Ministero v Ratti

Answer 12

held that a Member State cannot rely against individuals on its own failure to perform the obligations that the Directive entails. Rationale provided in for directives being able to have direct effect-
A Member State cannot rely on its own failure to perform the obligations which the directive entails. This rationale succeeded in convincing the rebellious national courts to accept the direct effect of directives.

Question 13

VNO

Answer 13

Prior to Ratti, the Court had already established that a directive could have direct effect where a Member State has only partially or incorrectly implemented it. The result of this is that 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 by that Member State or has only been partially or incorrectly implemented by it so long as the implementation date for that directive has passed and its provisions satisfy the other conditions for direct effect.

Question 14

Marks & Spencer plc v Commissioners of Customs & Excise

Answer 14

held that even where a directive has been completely and correctly implemented into national law by the Member State, an individual may continue to rely upon a clear, precise and unconditional directive in their national court ‘where the national measures correctly implementing the directive are not being applied in such a way as to achieve the result sought by it’.

Question 15

Foster v British Gas Plc

Answer 15

applied the tripartite test for identifying an emanation of the state

Question 16

Kampelmann Sozialhilfeverband Rohrbach

Answer 16

bipartite test applied to check whether something is the state

Question 17

Von Colson & Kamann v Lad Nordrhein-Westfalen -

Answer 17

• principle of indirect effect was established.
  Court outlined the interpretative obligation- The court said that: The indirect effect creates an obligation on national court to interpret national law in a way that is compatible with EU law in so far as possible – important that the wording and the purpose of the directive is taken into consideration.
  The interpretation is taken ‘in so far as it is given discretion to do so under national law’

This case concerned the implementation of Directive 76/2017 in order to achieve the result referred to in Art 189(3), now art 288(3) TFEU. The logic of the reasoning dispenses with any requirement to distinguish between vertical and horizontal claims.

Question 18

Harz v Deutsche Tradax 1984

Answer 18

logic of non-requirement to distinguish between vertical and horizontal claims was applied to a claim made against a private company- but this distinguishing fact was irrelevant in terms of the approach of the court of justice.

The interpretive duty imposed on national courts by the principle of indirect effect applies irrespective of whether a case can be characterised as vertical or horizontal and so applied as equally to the claimant in Harz as it had to the claimants in Von Colson.

Question 19

Marleasing SA v La Commercial Internacional de Alimentación

Answer 19

resolved issues with the nature and scope of the interpretation. The Court of Justice’s decision in Marleasing clarified two things.

1) Made clear that the provisions of an unimplemented directive could be used to interpret national law, even in a purely horizontal action between individuals.
2) it does not matter if the national law had been made before or after the directive: the directive can still be used to interpret that law.

Question 20

HM Revenue and Customs v IDT Card Services Ireland Ltd 2006

Answer 20

More detailed guidance on what the interpretative obligation entails in England and Wales has been laid down by the English Court of Appeal. Case established following principles:

1.There is no need to find that the statutory language should be ambiguous before interpreting the legislation.
2. The interpretation can change the meaning of the legislation in a way that involves a substantial departure from the language. It can read the language more restrictively or more expansively and can read words into the legislation.
3. However, the court must not rewrite legislation in a way that goes beyond interpretation. It cannot read words into the legislation that go against the grain of the legislation. Nor can it adopt a meaning that departs from a fundamental feature of the legislation or a cardinal principle of it.
4. The interpretation cannot entail the court making a decision which involves it making policy choices that it is not equipped to make nor where there will be practical repercussions which the court is not equipped to evaluate.

Question 21

Francovich & Bonifaci v Italian Republic

Answer 21

first established the principle of state liability.
The Court identified three conditions in Francovich which had to be satisfied before the principle of state liability could take effect:

1. The result prescribed by the directive should entail the grant of rights to individuals.
2. It should be possible to identify the content of those rights on the basis of the provisions of the directive.
3. The existence of a causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties.

Question 22

Brasserie du Pêcheur

Answer 22

• What was necessary was that the breach be ‘sufficiently serious’. Under these circumstances, the three conditions which must be satisfied for a claim in state liability to be established were set out in Brasserie du Pêcheur in the following terms:
  1. The rule of law infringed must be intended to confer rights on individuals.
  2. The breach must be sufficiently serious.
  3. There must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.

The Court stated that the ‘decisive’ question in determining whether or not a breach was sufficiently serious was whether the Member State had ‘manifestly and gravely disregarded the limits of its discretion’

Question 23

R v HM Treasury, ex p British Telecommunications plc

Answer 23

In this case, the Court agreed that the UK had misunderstood what was required by the Directive and incorrectly transposed it into national law, it was held not to be liable in damages. The breach was excusable for a number of reasons from the list above.

Question 24

R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd 1996

Answer 24

. MAFF accepted that the refusal to grant the licenses was a restriction on the free movement of goods contrary to Article 35 TFEU but sought to justify it on the grounds of the protection of the health and life of animals under Article 36 TFEU. It argued that a number of slaughterhouses in Spain were not properly complying with Directive 74/577 on the stunning of animals before slaughter. The Court of Justice held that Article 36 TFEU could not be relied upon as Directive 74/577 had already been adopted to achieve the objective for which Article 36 was being invoked, namely to ensure that animals are stunned before slaughter.