Term
| NV Algemene Transport – en Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] Case 26/62 ECR1 |
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Definition
Direct Effect - clear, precise and unconditional
CONCERNED A NEGATIVE OBLIGATION |
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Term
| Costa v ENEL [1964] case 6/64 ECR 585 |
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Definition
FIRST CASE IN WHICH CJ HELD THAT NATIONAL LAW WHICH POST-DATES THE TREATY & CONFLICTS WITH IT SHOULD BE DISAPPLIED
BY JOINING THE EU, MSs MUST ACCEPT A PERMANENT LIMITATION ON THEIR SOVEREIGNTY RIGHTS
THE INTEGRATION OF EU LAW INTO NATIONAL LAW MAKES IT IMPOSSIBLE FOR SUBSEQUENT NATIONAL LAW TO TAKE PRECEDENCE OVER EU LAW
- C was shareholder in an electricity company which was forcibly nationalised, C refused to pay electricity bill, CJ ruled that the forced nationalisation was illegal, and that EU law should have supremacy |
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Term
| Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] Case 106/77 ECR 629 |
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Definition
ABSOLUTELY Re-enforced the supremacy of EU law - NO GETTING AWAY NOW!!!
CONFIRMED THAT CONFLICTING NATIONAL LAW MUST BE DISAPPLIED... |
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Term
| Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966] Case 57/65 ECR 205 |
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Definition
CASE ESTABLISHES THAT POSITIVE OBLIGATIONS ARISING FROM TREATY ARTICLES CAN HAVE DIRECT EFFECT
An article was introduced, which stated that member States had to remove all taxes, which discriminated against other member State’s produce, by the 1st January 1962
In Lutticke’s (=powdered milk importer) country, this did not happen, and so he brought a case before the CJ
CJ found in favour of Lutticke
Ratio Decidendi – ‘there was no discretion left to Member States to give effect to the positive obligation regarding the removal of discriminatory internal taxes once the 1st January 1962 deadline had passed.’
PRECEDENT SET FOR DIRECTLY EFFECTIVE W.R.T POSITIVE OBLIGATIONS |
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Term
| Defrenne v SABENA (No 2) [1976] Case 43/75) ECR 455 |
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Definition
FIRST CASE TO CONFIRM THAT YOU CAN HAVE HORIZONTAL DIRECT EFFECT
Defrenne was an air hostess who was being discriminated against w.r.t pay
Both parties to the action accepted that there had been discrimination, however there was question as to whether or not Defrenne had rights under EU law (wether or not Direct Effect was applicable to her case
National court made a reference to the CJ, who found that the case met the Van Gend en Loos criteria, therefore, EU law was applicable (NOTE = protected rights against direct pay discrimination, but did not protect rights against indirect pay discrimination (e.g. indirect discrimination = ‘arises where a working situation, while ostensible neutral between genders, favours one sex over the other’
PRECEDENT SETTER FOR HORIZONTAL DIRECT EFFECT W.R.T REGULATIONS |
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Term
| Van Duyn v Home Office [1975] Case 41/74 1 CMLR 1 |
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Definition
Article 45 of the TFEU provides ‘for the free movement of workers, subject to derogations justified on the grounds of public policy, security or health... Article 3 of the Directive provides that any such measure (derogation) shall be ‘based exclusively on the personal conduct of the individual concerned’.
Van Duyn was travelling to England to work as a receptionist in the church of Scientology. She was refused entry to the UK, on the basis of prejudice against Scientology
Van Duyn attempted to claim against the Home Office using the above provision (given that the derogation should be based on her own personal conduct, and shouldn’t be related to Scientology)
The CJ agreed that Van Duyn was protected by rights under the above directive
(however, Van Duyn’s case was ultimately unsuccessful, as it was also decided that ‘association’ is part of personal conduct... however, had she not been associating with Scientology, the direct effect of directives would have been applicable
Ratio decidendi (re: directive being directly effective): whilst directives involve discretion w.r.t the way in which they are to be achieved, they do not allow for discretion w.r.t the achievement of the ultimate goal. |
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Term
| Dori (accini) v Recreb Sri [1994] |
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Definition
The Italian state should have enforced a directive stating that consumers should be allowed to cancel contracts within seven days, if the contract had been made away from business premises
Dori had signed up for an English course, she was at a railway station when she booked the course. Dori lost her claim.
Ratio decidendi: A Directive could not impose obligations on an individual (the company) and in the absence of national legislation the complainant could not therefore rely on the directive to give her rights against the company. – e.g. it was not the private company’s fault that the state had not enforced the directive... (Italian state’s fault & measures could not be directed against a company because of the fault of the Italian state)
PRECEDENT SET FOR DIRECTIVES NOT FORMING HORIZONTAL DIRECT EFFECTIVENESS |
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Term
| Marshall v Southampton and South West Area Health Authority [1986] |
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Definition
INTRODUCED THE IDEA OF DIRECTIVES BEING DIRECTLY EFFECTIVE AGAINST ORGANS / EMANATIONS OF THE STATE REGARDLESS OF WHAT CAPACITY IT WAS ACTING IN
C brought action against D on basis of D’s policy which forced women into retirement earlier than men
D’s policy was in contravention with the EU’s sex discrimination directive 76/207
British court sought a preliminary reference from ECJ
ECJ confirmed that Directives can have no horizontal direct effect
HOWEVER... = direct effect on the state, regardless what capacity it is acting in (e.g. any state bodies)
Introduced the idea of emanation of the state, however, did not clarify what would count as an emanation, see Foster & Kamplemann |
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Term
| Pubblico Ministerio v Ratti [1979] (Case 148/78) ECR 1629 |
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Definition
(2 CASES IN 1)
Ratti sold solvents & varnishes.
Ratti’s packaging for both the solvents and the varnishes was not compliant with the Italian regulations on packaging – and the Italian government sought to prosecute Ratti
However, Both were in containers which complied with EU directives.
However, the deadline for implementation of the directive relating to the packaging of solvents had not yet passed
CJ decided that Ratti could not be prosecuted for the Varnishes, as this complied with EU law. However, Ratti could be prosecuted w.r.t the packaging on the solvents
Ratio decidendi – as the deadline for the directive on the packaging of solvents had not yet passed. It is not admissible to act upon the legitimate expectation of complying with the requirements of a directive before the expiry date within which the member must comply with the directive. Directives are conditional upon implementation into national law by a Member State. It is only after the deadline has passed, that the directive becomes unconditional... (remember Van Gend en Loos criteria)... there are lots of reasons why a Member State may leave it to the last minute before enforcing the directive e.g. transition period, categorising period... etc. |
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Term
| Foster v British Gas plc [1990] (C-1889/89) ECR 1-3313 |
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Definition
SET OUT THE CRITERIA FOR ESTABLISHING WHEN A BODY WAS AN EMANATION OF THE STATE -
= THROUGH AN ACT, THE STATE HAS MADE IT RESPONSIBLE FOR PROVIDING A PUBLIC SERVICE, UNDER THE CONTROL OF THE STATE, AND HAS FOR THAT PURPOSE SPECIAL POWERS BEYOND THOSE WHICH NORMALLY APPLY
- ALL THREE CRITERIA ARE REQUIRED IN THE FOSTER TEST
ALTHOUGH, ELEMENTS OF THE WORDING IN THE SUMMING UP = MAY STILL BE POSSIBLE FOR A BODY WHICH DIDN'T MEET THE CRITERIA TO BE AN EMANATION IN SOME OTHER WAY |
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Term
| St Mary’s v CofE Junior School |
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Definition
Reduced Foster test to only the first two questions
MADE RESPONSIBLE FOR PERFORMING A PUBLIC SERVICE
UNDER THE CONTROL OF THE STATE |
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Term
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Definition
Reduced the Foster test to a ‘one-stage-test’, only requiring one of the criteria to be met for classification as an emanation of the state
Hugely broadens the category of emanations of the state – therefore allowing for some of the flaws associated with directives only creating vertical effectiveness |
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Term
| Plaumann and Co. V Commission of the European Economic Community Case 25/62 [1964] CMLR 29 |
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Definition
EU (commission) introduced duties to be paid on the importation of clementines from non-EU countries
Plaumann, a trader in Clementines, sought to challenge the decision
EU Act was not addressed directly to him, therefore, question = whether or not Plaumann fell into a ‘closed category’ and was ‘directly affected by the Act, more so than any member of the general public’
The CJ found that Plaumann was not part of a closed group
Ratio decidendi – anyone could become a Clementine trader – it is a group that is open to all
= very hard to enter in to a closed group
THE CLOSED GROUP – W.R.T. CONTESTING LEGIBILITY OF EU LAW |
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Term
| Ladbroke Racing (Deutschland) GmbH v Commission [1993] case T-74/92 |
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Definition
EU BODIES HAVE TO RESPOND TO COMPLAINTS WITHIN A REASONABLE TIME
Ladbrokes complained to Commission about the denial of access for the televising of Horse Racing
After deciding to investigate the complaint in 1990, the Commission had still not defined its position by 1992
The General Court found that the Commission should have either formulated its position on the alleged breach, dismissed the complaint, or made a reasoned decision not to pursue the complaint... it had done none of these
E.G. OF EU BODIES NOT RESPONDING QUICKLY ENOUGH TO COMPLAINTS |
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Term
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Definition
Confirmed the supremacy of EU law over national law in areas where the EU has competence
EU allowed for interim relief for C's whilst case was being decided E.G. REQUIRED UK TO SET-ASIDE THE ACT OF PARLIAMENT FOR THE RELIEF PERIOD(therefore, exercised the power of supremacy, before it had even been decided whether there was a breach) = ABSOLUTE SUPREMACY |
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Term
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Definition
| provisions of EU law may, even without transposition by a MS, give rise to rights which can be enforced within the national legal system of MSs |
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Term
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Definition
| applicable to some forms of EU legislation, which once made, does not need to be transposed into the domestic law of MSs; it automatically becomes part of their domestic law |
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Term
| Van Gend - Unconditional element |
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Definition
| an identified right is not dependent necessarily upon other measures being taken by the community or Member states |
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Term
| TYPES OF EU LEGISLATION WHICH ARE DIRECTLY APPLICABLE |
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Definition
| TREATIES, REGULATIONS, DECISIONS (binding in their entirety upon the person to whom they are addressed) |
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Term
| CASE WHICH CONFIRMS THAT TREATY ARTICLES WITH A NEGATIVE OBLIGATION CAN HAVE DIRECT EFFECT |
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Definition
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Term
| CASE WHICH CONFIRMED THAT TREATY ARTICLES WHICH IMPOSE POSITIVE OBLIGATIONS CAN HAVE DIRECT EFFECT |
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Definition
| Lutticke (Alfons) GmbH v Hauptzollamt Saarlouis [1966] |
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Term
| CASE WHICH ESTABLISHED THAT TREATY ARTICLES CAN HAVE HORIZONTAL DIRECT EFFECT |
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Definition
| DEFRENNE NO.2 (sex discrimination case) |
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Term
| WHAT IS SPECIAL ABOUT THE DIRECT APPLICABILITY OF TREATIES IN THE UK?? |
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Definition
| EUROPEAN COMMUNITIES ACT 1972 - In the UK, treaties are not themselves directly applicable, as they need parliamentary ratification (though this is more of a convention) |
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Term
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Definition
Established that...
Regulations can have direct effect
OBITER - Decisions can have direct effect
(by their very nature, regulations can have direct effect) |
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Term
| Antonio Munoz Cia SA v Frumer |
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Definition
| Confirmed that regulations can produce direct effect |
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Term
| Can recommendations have direct effect? |
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Definition
| NO - because they are not binding forms of EU law |
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Term
| Which case confirmed that recommendations cannot have direct effect? |
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Definition
| Grimaldi v Fonds des Maladies Professionnelles |
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Term
| Which case confirmed that Directives can have direct effect? |
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Definition
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Term
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Definition
| Directives can have direct effect |
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Term
| What are the conditions which have to be met in order for a directive to have direct effect? |
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Definition
Vand Gend - CPU
Ratti - Implementation date must have passed
Marshall - must be used in an action against the state or an emanation of the state |
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Term
| Dori (Faccini) v Recreb Sri [1994] |
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Definition
| Confirmed the decisions in Marshall, that directives can only be VERTICALLY directly effective |
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Term
| Pubblico Ministero v Ratti [1979] |
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Definition
In order for a directive to have direct effect, the implementation date of the directive must have passed
two lots of packaging and labels - one = ok, other = now |
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Term
| Once the implementation deadline for a directive has passed, what happens? |
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Definition
| Any discretion the MS had to implement the directive is removed, and individuals may rely on direct effect of the unimplemented directive |
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Term
| What is the 'estoppel' argument which was developed in the case of Ratti? |
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Definition
| Member states are prevented from relying on their own failure to implement a directive, as a defence to a claim bought by an individual, on the basis of rights arising from the directive |
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Term
| If a member state has incorrectly / impartially implemented a directive, and the deadline has passed, can an individual still rely on the direct effect of the directive? |
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Definition
| Yes they can - Verbond van Nederlandse Ondernemingen (VNO) |
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Term
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Definition
POST KAMPLEMANN - FULL CUMULATIVE FOSTER TEST APPLIED
RR WAS A STATE OWNED COMPANY THEREFORE = UNDER THE CONTROL OF THE STATE
BECAUSE ROLLS ROYCE OPERATED AS A COMMERCIAL UNDERTAKING AND OPERATED WITH THE GOVERNMENT ON AN ARMS LENGTH BASIS, IT NEITHER PROVIDED A PUBLIC SERVICE, NOR HAD SPECIAL POWERS |
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Term
| REISER INTERNATIONALE TRANSPORTE GMBH V AUTOBAHNEN UND SCHELLSTRASSEN |
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Definition
POST KAMPLEMANN = FULL CUMULATIVE FOSTER TEST APPLIED
COMPARE WITH RR CASE FOR TEST APPLICATION
DESPITE BEING A PRIVATE COMPANY, THE SOLE SHAREHOLDER ACTUALLY = NATIONAL GOVT + GOVT WERE DIRECTLY IN CONTROL OF IT
CJ = A COMPANY GOVERNED BY PRIVATE LAW IS JUDGED AN EMANATION ON THE GROUNDS OF WHETHER THE STATE HAS DIRECT OR INDIRECT CONTROL OVER IT |
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Term
| BECKER V FINANZAMT MUNSTER-INNENSTADT |
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Definition
| TAX AUTHORITIES FOUND TO BE AN EMANATION OF THE STATE |
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Term
| FRATELLI COSTANZO SPA V COMMUNE DI MILANO |
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Definition
| LOCAL OR REGIONAL AUTHORITIES FOUND TO BE AN EMANATION OF THE STATE |
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Term
| JOHNSTON V CHIEF CONSTABLE OF THE RUC |
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Definition
| THE ROYAL ULSTER CONSTABULARY (A CONSTITUTIONALLY INDEPENDENT POLICE FORCE) = FOUND TO BE AN EMANATION OF THE STATE |
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Term
| SCHOLZ V OPERA UNIVERSITARIA DI cAGLIARI |
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Definition
| Identified a state-supported university as an emanation of the state |
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Term
| Why is it useful to give a broad definition to 'emanation of the state'? |
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Definition
| As it goes some way to overcoming the fact that directives cannot produce direct effect in horizontal actions. |
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