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Flashcards in In(Direct) Effect Deck (26)
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1

Van Gend en Loos (general)

FIRST CASE OF DIRECT EFFECT
- vertical
- for a treaty article
- Justification: preamble of treaty - new legal order (a community of people, not just of states)

2

Van Gend en Loos (Conditions for Direct Effect)

1) Provision must be sufficiently precise
2) provision must be unconditional

3

"Unconditional"

Molkerei-Zentrale Westfalen - unconditional does not mean subject (in implication or effects) to the taking of any measure either by the institutions of the Community or by MS

(so not yet implementing does not mean the provision is conditional)

4

Impact v Minister for Agriculature and Food

Even if there is an absence of the implementing measure at Community or national level can still have DE

5

Deferenne v Sabena (no.2)

created horizontal direct effect (treaty article)

6

Vertical Direct Effect of Directives

Van Duyn v Home Office
- Van Gend said "sufficiently" precise, and Directives are sufficient
- drew on idea of useful effect

7

Why are Directives Directly Effective?

1) (Van Duyn) FUNCTIONAL
2) (Van Duyn) TEXTUAL
3) (Ratti) ESTOPPEL

8

When are Directive Directly Effective?

1) After period of implementation (Ratti)

2) During period of implementation?? (Inter-environment Wallonie said MS cannot implement anything that will seriously undermine result of Directive

3) After implementation (Verbena van Netherlands - incase implementing authorities did not act within their power)

9

No horizontal DE of Directive

Marshall v Southampton (confirmed in Faccini v Recreb)

10

Fratelli Constanzo v Milano

State includes "all organs of administration including decentralised administrative authorities such as municipalities"

11

Foster v British Gas

Emanation of the state if it:

1) Offers a public service
2) under control of the state
3) has special powers because of this

12

Doughty v Rolls Royce

no public service, just service to the state = counted as emanation

13

National Union of Teachers v Governing Body of St Mary Church of England

no special powers, just public service and control of state

- counted as emanation
- said to interpret foster widely, it isn't a statutory definition

14

Kampelmann

Loosen definition of Foster

- can be special powers OR control by the state

15

Rieser v Asfinag

Not real control of state, just ownership and supervision

- seems like if an entity is carrying out a public service and for that reason has special powers, presence of state control is not required

- control not really necessary anymore

16

incidental horizontal effect

CIA Security International - directive can be used to 'void' national provisions as an EXCLUSIONARY thing, not substitutive (just use directive to remove a defence, not to crate obligation)

17

Unilever v Central Food

Used Directive for incidental DE again (said it wasn't HDE because was not imposing individual rights or obligations, just using it to bar a defence)

18

Johannes Martinus Lemmens

Incidental DE is not for criminal liability

19

Acor v Germany

used directives against the state to say they shouldn't allow a private company to go against directive

- this was successful!

20

Mangold v Helm

You can use general principles against individuals (if they've been solidified into a Directive)

- apparently this isn't HDE

21

Kucukdeveci v Swedex

reaffirmed Mangold ruling re: legal effects of general principles

22

Harmonious interpretation of Directive (indirect effect) - leading case

Von Colson

23

Horizontal Indirect Effect

Marbleising SA v La Commercial

24

Pfifer v Deutsches Rotes Kreuz

Indirect effect applies to ALL law, not just the one that implements the Directive

- any vague enough provision = fine, doesn't have to be specifically linked to directive

25

Limits of Indirect Effect

1) Contra Legem (Wagnor-Mirit)
2) Violates a fundamental principle of domestic law

26

Dominguez v CICOA Judgement

Whether something is contra legem or not is really wide and it could be interpreted that it isn't even if it seems like it is

- court's will stretch, just don't know in what cirumcstances