EU Law - Direct and Indirect Effect Flashcards Preview

Law Second Year > EU Law - Direct and Indirect Effect > Flashcards

Flashcards in EU Law - Direct and Indirect Effect Deck (138):
1

What case showed the Charter has VE?

Digital Rights v Minister for Communications

2

Kucukdeveci v Swedez

Reaffirmed Mangold, but only if case falls 'within the scope of EU law'

3

In what case did the court refuse to reverse Marshall?

Faccini Dori v Recreb

4

Verbond on DE

Can be invoked even after implementation of Directive to determine if Member acted within powers

5

Italian Ministry v Salgoil

Existence of Member discretion to limit FMG did not preclude DE of another related article as it did not undermine it and exceptional cases only

6

What case did Kucukdeveci support?

Mangold

7

What case shows Van Gend applies to Decisions?

Grad v Finanzamt Traustein

8

Arcor v Germany general

Charging for use of a network, but G not allowed to do so

9

Fratelli Constanzao v Milano on 'emanation of the state'

'All organs of administration including decentralised administrative authorities'

10

Mangold v Rudiger Helm on DE of Directives

Give effect to Directives prior to expiry, following Wallonie

11

Stitchting El Aqsa involves what EU law measure?

Regulations

12

Foselev v Administration

Requirement for DE still needs to be fulfilled before it applies to Regulations and Decisions

13

What argument did the court specifically not engage in in CIA Security?

HDE

14

Defrenne v Sabena on unconditional provision

Appeared to lack precision by lacking definition for 'principle', 'pay' and 'work', but general principle of equal pay for equal work applied

15

What case was relied on specifically in Mangold to get around Ratti?

Wallonie - implementation which would seriously undermined result intended by Directive

16

In what case was national law set aside despite the fact the period for implementation had not expired?

Mangold v Rudiger Helm

17

Why does Tobler read Mangold so differently to the editors of the CLMR?

Not traditional case as Article only had effect in 3 year extension obtained, more far-reaching POSITIVE obligation than negative in Wallonie and should have been argued as a 'declarative function' of general principle, and thus Ratti should not applu

18

What two academics in general praise the general principle development in ECJ?

Cabral and Neves

19

Article 288 TEU

Five different types of legislation - regulations, directives, decisions, opinions and recommendations

20

Which case decided Community law precludes the adoption of incompatible provisions due to primacy?

Simmenthal (No.2)

21

Decision in Van Gend

Community law both 'imposes obligations' AND confers rights upon individuals

22

Foster v British Gas on 'emanation of the state'

Responsible for providing a 'public service' with 'special powers' to do so.

23

What was the functional argument in Van Duyn?

Effectiveness and complements Article 258 on public enforcement

24

AMS v Union Locale

Despite discretion under Directive, obligation made French Labour Code incompatible with Charter, but Directive did not have HDE and Von Colson did not allow interpretation

25

Article 6(3) TEU

Fundamental rights from ECHR and constitutional traditions common to Members constitute general principles of EU law

26

What was the exclusionary effect in CIA Security?

Source imposing obligations was national law of tort, not Directive

27

Faccini Dori v Recreb general

Languages course

28

Inter-Environmental Wallonie on DE of Directives

No adoption of undermining measures prior to period expiring

29

Unilever v Central Food judgment

Engaged with HDE, arguing 'of itself' from Marshall does not apply in exclusionary approach because only renders law inapplicable - does not define substantive scope of legal rule

30

What is the third argument for DE of Directives?

Estoppel argument

31

What 4 arguments specifically did the court rely on in Marshall?

Rule of law regarding publication of Directives not required, blurring the lines between Directives and Regulations, Article 288 refers to MEMBER and legal certainty

32

What Articles in the TECE attempted to explicitly set out the supremacy of EU law?

Articles 106

33

Kucukdeveci v Swedez GmbH general

Dismissal, years worked past 25 years

34

Which Article of which Treaty gives the five different types of legislation in EU law?

Article 288 TEU

35

Wells v SoS for Transport

VDE of a Directive is not precluded even if application is certain to lead to adverse consequences for an individual, as long as it does not DIRECTLY impose legal obligation

36

What case says we shoul give effect to Directives prior to expiry?

Mangold v Rudiger Helm

37

What intervention in Van Gend suggested such a development was not anticipated?

Three governments intervened - did not believe DE accorded with their view of obligations of the EEC

38

Stauder v City of Ulm judgment

Human rights are general principles of EU law

39

What Attorney General warned that restricting general principles to VDE may create a public/private sector distinction already familiar in Directives?

AG Sharpston

40

What case decided Community law makes domestic law 'automatically inapplicable'?

Simmenthal (No.2)

41

Mangold v Rudiger Helm on general principles

Non-discrimination principle means national courts set aside conflicting national law, even if period not expired

42

Which AG believes Principles and Directives should NOT be on equal footing?

AG Colomer in Michaeler

43

Article 51 Charter of Fundamental Rights

Provisions are addressed to Members, when implementing EU law and EU institutions, suggesting DE like Treaty Articles

44

How did Pescatore summarise the conditions for DE?

'Sufficiently clear, precise and unconditional to be invoked by the individual'

45

What are the requirements for DE?

Clear, unambiguous provision which is unconditional

46

What academic in general criticises the general principle development in ECJ?

Robin-Olivier

47

What three factors does Tobler believe need to combine before Mangold is relevant?

Positive obligation equivalent to relevant Article, extension used and 'Framework Directive', which he believes currently ONLY entails the Employment Framework Directive

48

Grad v Finanzamt Trautstein

Van Gend applies to Decisions

49

How did Mangold get around Marshall?

General principles and Directives 'of themselves' cannot give HDE, but when the latter encapsulates the former as a FRAMEWORK D, they can

50

What was the textual argument in Van Duyn?

Article 267 TEU implies Directives can be invoked by individuals in national courts because courts can refer questions on ANY EU measure

51

What is the application of decisions?

Legislative document with direct application and binding in their entirety on those addressed

52

In what case did AG Colomer argue principles and directives should not be on equal footing?

Michaeler

53

Which case stated Declaration 17 Treaty of Lisbon constituted a 'new legal order'?

Van Gend en Loos

54

Unilever v Central Food general

Olive oil label

55

Reyners v Belgium on provision must be unconditional

Lawyer test case - central principle of non-discrimination on the grounds of nationality was DE (Directive)

56

Danmark on general principles

General principle can set aside national law even if HDE

57

What is the issue with relying on Wallonie in Mangold?

Exception for those over 52 ended 2 weeks after expiration of implementation period for Directive - how could it seriously undermine D then?

58

Why did Tobler not believe Ratti applied in Mangold?

It played a 'declarative function', as both the D and the GP were the same, and thus D did not directly regulate discrimination

59

Who stated that courts should be slow to exclude the possibility that AMNY general principle may be applies horizontally?

AG Sharpston in Bartsch v Bosch

60

AG Sharpston in Bartsch v Bosch

Courts should be slow to exclude the possibility that ANY general principle may be applied horizontally

61

Johannes Martinus Lemmens judgment

No exclusionary effect argument in criminal case

62

How does Craig criticise the Von Colson principle?

EU law still orchestrates the interpretative obligation

63

According to AG Jacobs, why is there such a wide view of the 'state' for the purpose of DE?

'Price' to be paid for powers received from state

64

Stichting El Aqsa

National law with same objective could 'affect the scope of that regulation' due to possibly divergent definitions

65

What has the requirement that the Treaty Article be 'clear and unambiguous' been loosened to?

'Sufficiently precise'

66

Which case says no adoption of undermining measures prior to period expiring?

Inter-Environmental Wallonie

67

Simmenthal (No.2) on Declaration 17

Community law makes domestic law 'automatically inapplicable' AND precludes the adoption of incompatible provisions

68

What case shows Van Gend applies to Regulations?

Leonisio v Italian Ministry

69

What did Craig state about the exclusionary/substitutionary cases?

Directive still mandates in both cases, whether it modifies existing law or substitutes it

70

What did AG Colomer believe the primary role of specific principles should be?

Interpretative only

71

What argument did the ECJ rely on in Van Duyn v Home Office?

Effectiveness

72

Digital Rights v Minister for Communications

Vertical effect of charter, although court tend to avoid the language of DE

73

Marshall v Southampton

Test for DE, clear and unambiguous needs to be in 'unequivocal terms'

74

Why was direct effect introduced?

Because Article 288 TEU was weak and could not be used against private individuals

75

What case did they follow in Mangold?

Wallonie

76

Factortame (No.2) on Declaration 17

National legislation should not be suspended until a final determination on its compatibility is made

77

Filipiak v Dyrektor

Explicit requirement for continuation of a provision should be disapplied regardless, ignoring national decisions in favour of Community law

78

What case loosened the 'clear and unambiguous' requirement to sufficiently precise for DE?

Van Duyn v Home Office

79

What Treaty Article did the court rely on in Van Gend to enforce effectiveness argument?

Article 258 TFEU - public enforcement did not preclude private enforcement via DE

80

What two cases show DE being used to 'trigger' proper implementation of Articles

Defrenne v Sabena; Reyners v Belgium

81

Mangold v Helm general

Fixed-term contracts, period not expired

82

What was the key phrase relied on in subsequent case law from Mashall?

'Of itself'

83

Marshall on 'emanation of the state'

Regardless of whether State acts in an employer or public authority capacity

84

What argument did the court change from and to in Defrenne?

Estoppel argument to effectiveness argument

85

Van Duyn v Home Office general

Scientology

86

Which case stated the supremacy of EC is inherent?

Costa v ENEL

87

Which Article of which Treay gives the general principles of EU law?

Article 6(3) TEU

88

Name at least two ways Craig thinks Von Colson could produce more problems for private parties

Forensic legal exercises are more wide-ranging, parties have to guess if national courts will feel able to conform and additional litigation costs in cross-border transactions.

89

Molkerei-Zentrale v Hauptzollamt on unconditional provision

'Not subject to the taking of any measure'

90

Association de Mediation Sociales general

Information to and consultation of employees, certain excluded from calculation

91

How can the blurred lines argument in Marshall be rebutted?

Time period and Member discretion distinguishes Regulations and Directives

92

What did AG Jacobs say about allowing HDE?

'Might well be conducive to greater legal certainty and to a more coherent system'

93

What case shows Charter rights do not appear to have HDE?

AMS v Union Locale

94

What is the issue with the Charter having HDE?

Expressed in terms of obligations/duties of Members, not private parties

95

What is the application of opinions/recommendations

No binding force

96

What is the application of directives?

Binding 'as to the result to be achieved' upon addressed Member

97

Why is the judgment in Johannes Martinus Lemmens confusing?

Limits a circumvention of the basic rule

98

Koras on DE of Directives

Possibility of derogation did not prevent DE, even when Member applies for such derogation and Commission unreasonably failed to respond

99

CIA Security International general

Alarm systems

100

ANAFE

DE affects relevant administrative authorities as well

101

Rieser v Asfinag on 'emanation of the state'

Reporting to and supervision by the state was sufficient for control

102

What case in indirect effect finally showed court engaging with HDE argument?

Unilever

103

Arcor v Germany judgment

Court state even certain adverse repercussions for third parties do not preclude individual relying on Directive against a Member

104

What case shows the requirements of DE must be fulfilled before it applies to Regulations and Decisions?

Foselev v Administration

105

What method does CIA Security refer to?

Indirect effect

106

In what two contexts does Tobler think Mangold is limited to?

Age and disability

107

Declaration 17 Treaty of Lisbon

Treaties and law adopted therein 'have primacy over the law of Member States'

108

What was the distinction made in CIA Security?

Exclusionary as opposed to substitutionary effect, where the latter is not allowed

109

Leonisio v Italian Ministry

Van Gend applies to Regulations

110

What approach did the court switch from and to in Marshall?

'Effet utile' to strict estoppel, relying on strict textual interpretation regarding addressee of Directive

111

What does the case of Association de Mediation show?

Courts limiting exception to general principles, or maybe only non-discrimination principles

112

What does Article 6(3) TEU give at the general principles of EU law?

Fundamental rights from ECHR and consitutional traditions common to Members

113

Association de Mediation Sociale judgment

Right came from Charter, not general principles, so could not be relied on directly through Directive, unlike Mangold

114

Van Gend en Loos general

Glue importers, tax

115

What two reasons did the court give in particular in Van Duyn?

Textual and functional argument

116

Van Gend en Loos on Declaration 17

Community constitutes a 'new legal order of international law', limiting States sovereignty

117

Who argued the result in Mangold is even more unclear than just allowing HDE?

Craig

118

What is the third argument for DE of Directives, and from what case does it come?

Pubblico Ministero v Ratti

119

Carp Snc v Ecorad

Decision addressed to Members does not affect private parties (no DE)

120

Marshall v Southampton general

60 years retirement

121

Defrenne v Sabena (No.2) judgment

Individual can use DE against another individual, loosening Van Gend as neither pay nor work were defined.

122

Defrenne v Sabena (No.2) general

Air hostess, retirement

123

Doughty v Rolls-Royce on 'emanation of the state'

Distinction between a public service and service to the State

124

Article 288 TFEU

Makes DE the default, but address to specific Members makes it binding only on those addressed

125

What does Craig argue about the textual argument in Marshall?

Not self-evident in black-letter terms, and would narrow conception of state as the majority under Foster have no more power than individuals, rendering any estoppel-type argument void

126

Johannes Martinus Lemmens general

Breathalysers

127

What Declaration in which Treaty set out the primacy of EU law?

Declaration 17 Treaty of Lisbon

128

Weiler on development of EU law

DE is of central importance to ECJ continuing to develop EU law

129

National Union of Teachers v Governing Body of St Mary's on 'emanation of the state'

Broad interpretation of Foster - it is not a statutory definition. Private school was emnanation and control by government

130

Who argued the various exceptions to Marshall actually place individuals in a 'significantly worse position'?

Craig

131

How can the RoL argument in Marshall be rebutted?

Article 297 TFEU now requires publication

132

Costa v ENEL on Declaration 17

Supremacy of EC is inherent - domestic law could not override without depriving Community law of its character

133

What is the application of Regulations?

'General application', binding in their entirety and directly applicable

134

Which case governs for the vertical direct effect of Treaty Articles?

Van Gend en Loos v Nederlandse

135

Vassallo on 'emanation of the state'

Autonomously governed Italian funding in receipt of plc funding was 'emanation'

136

Larsy v INASTI

Rule in Factortame regarding primacy applies to administrative agencies as well, not just courts

137

Which case suggests non-discrimination on grounds of sexual orientation may be a general principle, but need time limit to expire?

Romer

138

Kampelmann v Landschaftsuerband on 'emanation of the state'

Public service means you do not need to show control by the state or special powers - provision of service is enough

Decks in Law Second Year Class (74):