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Direct Effect Notes

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DIRECT EFFECT

Direct effect - does a provision of EU law confer a right on individuals which are enforceable in national courts.
Van Gend en Loos [1963]
o Held that Dutch govt. could be sued in their national court for implementing a law that was contrary to the treaties.
o EU constitutes "a new legal order" the subjects of are both
Member States and nationals.
Conditions for Direct Effect

Clear and Precise: Provision must give rise to identifiable rights that are set out unequivocally (Van Gend en Loos;
Reyners v Belgium; Coop Agricola Zootecnica)
o Unconditional: the provision does not depend on other measures and the state has no discretion as to implementation (Van Gend en Loos; Coop Agricola
Zootecnica)
Article 288 TFEU: Direct Effect of EU Law

Regualtions: It shall be binding in its entirety and directly applicable in all Member States

Decisions: A decision which specifies those to whom it is addressed shall be binding only on them.
o Treaty Articles
 Horizontal direct effect (i.e. can be enforced against other individuals - Defrenne v Sabena)
 Vertical direct effect (i.e. can be enforced against the state - Van Gen den Loos)
o Recommendations cannot have direct effect as they are not binding (Grimaldi)

DIRECT EFFECT

AND

DIRECTIVES

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."
o A time deadline is usually c. 2 years.
Note a member state cannot adopt contrary legislation before the deadline has expired (Adenler)
o Directives therefore give rise to an immediate positive duty by MSs
Conditions for DE of Directives:
o 1) Sufficiently Clear, Precise and unconditional (Van Gen den Loos; Van Duyn)
o 2) Incorrectly implemented (Ratti)
 a) Not implemented at all (Ratti)
 b) Implemented partially or incorrectly (VNO v
Inspecteur) c) Correctly implemented but incorrectly applied by national authorities so it fails to achieve its purpose
(M&S v Commissioner)
o 3) Implementation date must have passed (Ratti)
o 4) The action must be against the state or an emanation of the state (Marshall v Southampton AHA; Doughty v Rolls
Royce)
Flexible interpretation of these conditions

The mere fact that the provision raises questions of interpretation which can be resolved by a court does not prevent DE (Van Duyn)
o Just because the Member State is able to choose among several possible means of achieving the result required by the Directive does not prevent DE (Francovich)
Directives only have vertical direct effect (Van Duyn) not horizontal direct effect (Faccini; Marshall)
This principle of direct effect thereby makes every single citizen an enforcer of EU law.
o Hence the twin with supremacy.
French national courts initially reluctant to admit DE for directives and refused to hear cases (1980 - Cohn-Bendi). Since reversed by
Boisdet [1991].


Cases:
o Van Duyn [1974]
 Dutch citizen who wanted to move to the UK to work for the Church of Scientology. UK government considered working for Church of Scientology as against public policy which triggered exception to free movement of persons.
 Van Duyn held that there was a directive that set out the criteria for such restrictions that the UK was ignoring.
 ECJ held that individuals could invoke directives in domestic courts for three reasons
 Effectiveness - they are not effective if they cannot be invoked.
 Article 288 does not rule out direct effect for directives.
 The provision of the treaty about preliminary references does not rule out directives.
 Van Duyn could invoke the directive was because the
UK had failed in its duty to implement the directive.
She should have been able to invoke domestic law had it been properly applied by parliament and bought into domestic legislation.
 NB Van Duyn lost the case as directive held to support
UK's case.
o Ratti [1979]

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