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Direct & Indirect Effect _______________________________________________________
Direct Effect Treaty Articles The 'new legal order' which encompasses not only states but the citizens within those states: Van Gend en Loos Customs duties were imposed antagonistic to Art 30 TFEU - could this provision be effective in a national court?
Held: direct effect possible & flowing from the objective of the treaty though not necessarily its exact wordings
? "according to the spirit, the general scheme and the wording of the Treaty" Art 30 produces direct effects and creates enforceable individual rights" Established direct effect possible where:
- Clear and unconditional prohibition
- Requiring no legislative intervention by the MS Here it was more likely to be directly effective because it was a negative obligation, rather than positive one NB: judgment = narrow & vague as to the general application of direct effect Reyners v Belgium Art 51 TFEU 'official authority' argued to extend to the legal profession as an exemption from the free movement of services Art 56 TFEU Held: Art 51 directly effective despite the fact directives had not been adopted
? "obligation to attain a precise result, the fulfilment of which...(was) not dependent on the implementation of a programme of progressive measures" i.e. directives Defrenne v Sabena Female air stewardesses retirement age -> alleged in breach of Art 157(1) TFEU right to equal pay Held: provision had general purpose to stop discrimination; also had a direct purpose to stop discrimination in individual cases. Such provisions may be directly enforceable where they transfer a right to a class of individuals HORIZONTAL EFFECT: this case dealt with the horizontal effectiveness of article provisions (Sabena pointed out that it was not an emanation of the state, and the provision was directed towards states)
Held: the wording of the provision would not preclude private liability as the objective is to enable MS to uphold rights in a court of law - this necessitates horizontal effect
? "Art  is mandatory in nature...extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals"
Regulations Leonesio v Italian Ministry of Agriculture: a regulation is capable of direct effect if it is clear & unconditional -> it must be applied by the courts even if there is conflicting domestic legislation
Decisions Grad v Finanzamt Traunstein: the wording of Art 288 does not preclude decisions giving rise to direct effects
International Agreements Kupferberg: CoJ notes the difference between international & EU obligations ->
international agreements may only be directly effective where:
- Clear & precise
- The determination of this question must be inkeeping with the "object and purpose" of the agreement
Directives: Vertical Direct Effect Art 288 TFEU "'A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods'. A directive is designed to impose duties on states, not individuals, so it would be inappropriate to make it directly applicable i.e. without implementation by MS HOWEVER the "dangerously elastic quality of directives" (F Mancini) has given rise to some judicial activism in ensuring that Community law is implemented in a uniform fashion with adequate protection of individual rights Direct effect will be sought when:
- CoJ will not take up case for direct enforcement
- Complainant seeks damages through state liability
- To defend directly effective provisions
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