Term
| Definition of Direct Applicability |
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Definition
- Law in MS, no implementation required
- Art 288 TFEU: regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states |
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Term
| Definition of Direct Effect |
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Definition
| - provisions of binding EU law which are sufficiently clear, precise and unconditional may be capable of producing legally enforceable rights for individuals |
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Term
| Conclusion from Van Gend en Loos? (reclassification of chemical case) |
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Definition
- The new legal order created by the Community encompasses both MS and its nationals
- Thus community law imposes both obligations and rights upon individuals of the MSs, not only where they are expressly granted from treaties
- The nature of the prohibition makes it ideally adapted to produce direct effects in the legal relationship between MSs and their subjects
- Article 12 must be interpreted in a way that produces direct effects and creates individual rights which national courts must protect
- These rights and obligations can be enforced before national courts |
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Term
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Definition
- Understanding in Van Gend is the immediate enforceability by individual applicant to those provisions in national courts
- It is an example of the court reading between the gaps to determine the underlying aims of the community as a whole |
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Term
| Define Vertical Direct effect |
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Definition
- Relations between individuals and member states.
- Meaning individuals can invoke community provision against the country |
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Term
| Define Horizontal Direct effect |
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Definition
- Relations between individuals and other individuals
- Meaning an individual can invoke a community provision against another individual |
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Term
| What are the two conditions for Treaties and Regulations to be Directly effective? |
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Definition
1. The provisions must be SUFFICIENTLY PRECISE
2. The provisions must be UNCONDITIONAL |
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Term
| Name a case which states that it must be Sufficiently precise and unconditional |
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Definition
| Becker: if the subject matter is unconditional and sufficiently precise, those provisions may be relied upon against any national provision which is incompatible |
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Term
| When is a provision sufficiently precise? |
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Definition
| - Marhsall: A provision is sufficiently precise when the obligation which it imposes, is set out in 'unequivocal terms' |
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Term
| What does unconditional mean? |
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Definition
| Westfalen: Unconditional means not 'subject, in its implementation or effects, to the taking of any measure either by the institutions of the Community or by the MS |
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Term
| What does Article 288 TFEU say about directives? |
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Definition
- 'Shall be binding upon each MS as to the result to be achieved...but shall leave to the national authorities the choice of form and methods'
- National implementation of directives |
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Term
| What is the functional argument for why directives should be DE? |
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Definition
| - They are binding and will be more effectively enforced if individuals can rely on them |
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Term
| What are the conditions for Directives to be Directly Effective |
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Definition
- Provision must be unconditional and sufficiently precise
- Deadline specified for implementation should have passed
- Directive should have vertical effect |
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Term
| Which case backed the principle that the provision must be unconditional and sufficiently precise? |
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Definition
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Term
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Definition
- A directive which allowed MSs to restrict movement of non nationals based on personal conduct of the individual (public policy grounds)
- Directive did not define the permissible range of public policy concerns |
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Term
| What was held in the case? |
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Definition
ECJ HELD: by providing that the measures had to be based on the personal conduct of the individual -> the directive had limited the discretionary power conferred on states.
- Hence: obligation imposed was clear, precise and legally complete |
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Term
| Which case backed the principle that the deadline specified for implementation should have passed? |
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Definition
| Pubblico Ministero v Ratti |
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Term
| Facts of the case important? |
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Definition
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Term
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Definition
- The directive cannot have Direct effect if the period prescribed to incorporate has not expired
- DE can only work in the event of default by the MS |
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Term
| What did Mangold v Helm hold? |
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Definition
| - NCs must set aside national law which conflicts with community law even if the directive period has not expired |
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Term
| Explain the difference between Horizontal and Vertical direct effect |
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Definition
Vertical effect: C seeking to use direct effect against the state or an emanation of the state
Horizontal effect: C seeking to use direct effect against a private party |
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Term
| Which case backed the principle direct effect of a directive can only be pleaded against the state? |
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Definition
| Marshall v Southampton and South West Hampshire Area Health Authority |
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Term
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Definition
- C dismissed on ground she passed age 60 (men = 65) (authorities policy)
- Argued dismissal violated directive |
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Term
| What was held in Marshall? |
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Definition
- There was ONLY horizontal effect between the parties
- A directive may not impose obligations on an individual and that it may not be relied upon as such against a person |
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Term
| What are some of the arguments against the case, that there might be obligations on nationals as well? |
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Definition
- Article 288 TFEU does not say whether, if a particular MS is bound by a directive, the directive might also impose an obligation on a private person
- So it is unclear what is meant. Unlike Marshal which explicitly states directives are ONLY binding on the MS |
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Term
| Whats the only way to expand the concept of Vertical Direct effect? |
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Definition
| By widening the definition of the state |
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Term
| Which case widened the definition of the state? |
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Definition
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Term
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Definition
- D required woman to retire at 60 whilst men retired at 65
- D was a nationalised industry who had a monopoly of the gas supply in the UK.
- C argued that D violated a directive |
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Term
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Definition
A body under the control of the state AND has special powers beyond those which result from the normal rules applicable in relations between individuals...
...is included among the bodies that a directive is capable of having direct effect and may be relied upon |
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Term
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Definition
| National bodies with special powers will be counted as EMANATIONS of the state/organ of the state (same thing) |
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Term
| Which case backed it and made it clear? |
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Definition
| Fratelli Costanzo SpA: all such authorities must refrain fro applying provisions of national law which conflict with directive provisions |
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Term
| What are your opinions of this contradiction to the standard limited scope of direct effect, vertically or horizontally? |
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Definition
- The broadening of Foster is contradictory to the narrow approach of HDE as domestic organisations which play no part in the formal implementation of EU legislation are now vicariously liable
- Problematic as the degree of special power/state control may vary considerably yet all who are given special power are held to warrant the application of the directive |
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Term
| What is the doctrine of incidental horizontal effects? |
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Definition
- Where directives can be enforced horizontally between parties as long as it can be rationalised in terms of an exclusionary, rather than substitutionary effect
- (i.e provided it is not imposing any burdens or obligations on private individuals)
- Simple terms: allows the use of indirect effect of EU directives in private legal actions
- Whilst an individual cannot be sued for failure to comply with an EU directive, the states failure to comply can be an incidental factor in a suit against an individual, where it will not impose legal obligations upon them |
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Term
| Which case defined this concept? |
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Definition
| CIA Security International v Signalson and Securitel |
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Term
| What were the facts of the CIA case? |
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Definition
- CIA faced lawsuit for breaching national standards for alarm systems
- CIA sought to defend by claiming the inapplicability of the national standard because the State failed to notify it to the commission as required by the directive
- ECJ found this to be correct
- CIA were able to rely on the Directive in order to remove the national obligation
- Did not create an obligation on the other party through HDE
- But did affect the other party as they lost their case because of the disapplication of national law |
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Term
| Add the unilever case here |
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Definition
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Term
| How has the impact of there not being HDE of directives been reduced? |
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Definition
| ECJ has relied on the general principles of law |
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Term
| Name a case which relied upon general principles of community law? |
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Definition
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Term
| What were the facts of Mangold? |
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Definition
- C was employed by D
- Argued that a fixed term in his employment contract was in breach of a directive (age non discrimination)
- Argued German law inconsistent with the directive |
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Term
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Definition
- The principle of non discrimination on grounds of age is a general principle of Community law
- Responsibility of national courts to provide legal protection to ensure that principles are fully effective setting aside any provision of national law which may conflict with that law |
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Term
| What is the takeaway outcome? |
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Definition
| Rule: general principles of EU law are capable of Horizontal effect |
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