In(Direct) Effect

Question 1

Van Gend en Loos (general)

Answer 1

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)

Question 2

Van Gend en Loos (Conditions for Direct Effect)

Answer 2

1) Provision must be sufficiently precise

2) provision must be unconditional

Question 3

“Unconditional”

Answer 3

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)

Question 4

Impact v Minister for Agriculature and Food

Answer 4

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

Question 5

Deferenne v Sabena (no.2)

Answer 5

created horizontal direct effect (treaty article)

Question 6

Vertical Direct Effect of Directives

Answer 6

Van Duyn v Home Office

• Van Gend said “sufficiently” precise, and Directives are sufficient
• drew on idea of useful effect

Question 7

Why are Directives Directly Effective?

Answer 7

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

Question 8

When are Directive Directly Effective?

Answer 8

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)

Question 9

No horizontal DE of Directive

Answer 9

Marshall v Southampton (confirmed in Faccini v Recreb)

Question 10

Fratelli Constanzo v Milano

Answer 10

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

Question 11

Foster v British Gas

Answer 11

Emanation of the state if it:

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

Question 12

Doughty v Rolls Royce

Answer 12

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

Question 13

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

Answer 13

no special powers, just public service and control of state

• counted as emanation
• said to interpret foster widely, it isn’t a statutory definition

Question 14

Kampelmann

Answer 14

Loosen definition of Foster

• can be special powers OR control by the state

Question 15

Rieser v Asfinag

Answer 15

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

Question 16

incidental horizontal effect

Answer 16

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)

Question 17

Unilever v Central Food

Answer 17

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)

Question 18

Johannes Martinus Lemmens

Answer 18

Incidental DE is not for criminal liability

Question 19

Acor v Germany

Answer 19

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

• this was successful!

Question 20

Mangold v Helm

Answer 20

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

• apparently this isn’t HDE

Question 21

Kucukdeveci v Swedex

Answer 21

reaffirmed Mangold ruling re: legal effects of general principles

Question 22

Harmonious interpretation of Directive (indirect effect) - leading case

Answer 22

Von Colson

Question 23

Horizontal Indirect Effect

Answer 23

Marbleising SA v La Commercial

Question 24

Pfifer v Deutsches Rotes Kreuz

Answer 24

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

Question 25

Limits of Indirect Effect

Answer 25

1) Contra Legem (Wagnor-Mirit)

2) Violates a fundamental principle of domestic law

Question 26

Dominguez v CICOA Judgement

Answer 26

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