A more recent version of these Direct Effect And Indirect Effect notes – written by Cambridge/Bpp/College Of Law students – is available here.
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[EU LAW + NATIONAL LAW: SUPREMACY, DIRECT EFFECT, INDIRECT EFFECT + STATE LIABILITY]
Direct Effect A258 TFEU: Commission may bring a case to the CJ vs a MS for not fulfilling treaty obligations A.259: MS can do the same vs another MS Van Gend en Loos: 1963 - imported formaldeyhyde from WG in 1960 - duty payable was increased from 3%-8%
A12 EEC (now A30 TFEU): Abolition of customs
CJ: 'A12 must be interpreted as producing direct effects and creating individual rights' - MS must protect
A new legal order: Rights + obligations which has direct effect on MS and on citizens - new legal order for which the MS have limited their sovereigntyIndividuals within MS can seek to enforce their rights in national courts - more likely obligations will be upheldExample of CJ filling in the gaps of the framework treaty
Supremacy of EU law:New legal order requires that EU law is supreme over nationalConfirmed in Costa v Enel (1964) : CJ - 'impossible' for MS to 'accord precedence to a unilateral +
subsequent measure over a legal system accepted by them on the basis of reciprocity'
Amministrazione delle Finanze dello Stato v Simmenthal SPA (1978): confirmed absolute nature of D.E - 'every national court must...apply community law in its entirety' Direct effect vs. Direct applicability
A288 TFEU: defines regulations as having 'general application...directly applicable in all MS' - doesn't need to be imported into national law: automatically becomes part of domestic law
Directives: binding only 'as to the results to be achieved'
In UK: treaties themselves not directly applicable - need parliamentary ratification
1. Sufficiently clear and precise to give rise to an identifiable individual right
Two conditions defined in Cooperativa Agricola Zootecnica A. Antonio and Others v Amministrazione della Finanze dello Stato
In Costa: a provision which satisfies VGL is 'legally complete and capable of producing direct effects'
Direct effect won't be precluded by:Mere fact that provision raises questions of interpretation: Van Duyn v Home OfficeConditions which are intended to ensure that the right is correctly applied w/o abuse and which don't affect the definition of the right itself: Becker v Finanzamt 1
[EU LAW + NATIONAL LAW: SUPREMACY, DIRECT EFFECT, INDIRECT EFFECT + STATE LIABILITY]Existence of derogations which are subject to judicial control: Van DuynJust because the MS can choose btw several means of achieving result: Francovich v Italian Govt
Defrenne v SABENA (No 2): Air hostess vs. employer: sexual discrimination - A119 EC (A.157 TFEU) - men/women should receive equal pay - court says that treaty article was sufficiently clear but not clear enough to protect vs. indirect discrimination Van Colson v Lord Nordhein: 2 women failed in applications to work in state prisons for male offendors - A6 of Equal Treatment Directive not sufficiently clear/precise for specific action Francovich v Italian Rep.: Considering Directive 80/987 - about workers being guaranteed wages in event of bankruptcy - clearly identified persons entitled to right and the content of right itself - but not who should provide it Direct effect off treaty articles
VGL - negative obligations
Alfons Lutticke GmbH v Hauptzollamt Saarlouis - once there was no discretion lefts to MS to give effect to a positive obligation regarding removal of discriminatory internal taxes - the provision became directly effective
Vertical + horizontal direct effect: Defrenne (No. 2): Court made it clear that A157 TFEU - horizontally as well as vertically directly effective
Direct effect of regulations: Forms of binding EU law (A288 TFEU) - capable of being directly effective Franz Grad v Finanzmant Traunstein - regulations directly applicable and therefore capable of producing direct effects Antonio Munoz y Cia SA v Frumer Ltd: 'By their nature capable of producing direct effects' Recommendations and Opinions: not binding EU law - so not directly effective (Grimaldi v Fonds des Maladies) Direct effect of Directives
Directly effective (Van Duyn) - Dutch scientologist case - but only if it is a vertical claim vs. the state
Implementation date must have passed: date specified in directive or if the directive is silent - within 20 days of publication in the official journal (A.297 TFEU)Public Ministero v Ratti: once deadline passes - Ratti could protect himself from prosecution by relying on Directive - reliance on D 77/173 was successful but reliance on D 77/173 was not - as date had not passedMarks & Spencer PLC v Commissioner of Customs + Excise: Even if directive has been completely implemented - citizens can still rely on a clear, precise and unconditional directive in their national court where the national measures are improperly applied
Vertical but NOT horizontal - "Emanations of the state" 2
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