Direct Effect

What are the conditions for Treaty provisions to apply Direct Effect?

Sufficiently clear, precise& unconditional

Measure must confer rights to individuals

Van Gend en Loos

Direct Effect

What are the conditions for Recommendations and Opinions to apply direct effect?

Not binding

-> No direct effect applicable

Direct Effect

What are the conditions for Directives to apply direct effect?

1. Clear, precise and unconditional                   Becker

2. Transposition deadline must have passed        Ratti

 Estoppel principle -> only vertical direct effect

3. Defendant must be an emanation of the state Marshall

4. Measure must confer rights to the individual

Direct effect

What are the conditions for an

emanation of the state?

Foster

1. It provides a public service

2. The service is under state control

3. Does it have special powers to provide the service

Indirect Effect

What does indirect effect mean when does it start?

National law must be interpereted in line with EU Law

Marleasing

It starts with the passing of the transposition deadline

 Adeneler

Indirect Effect

What are the criteria to apply indirect effect to Directives?

Van Colson

1. Existence of relevant national law

2. National law predates EU law

3. Possibility to interprete national law in line with EU law

Member State liability

What are the criteria assessing whether state liability may be applied in case of the failure to transpose a Directive?

Francovich

1. Does the Directive conver rights to individuals?

2. Are those rights clear from the Directive?

3. Causal link between breach and Loss

Preliminary Rulings

Explain the term 'acte éclairé'

CLIFIT

CJEU dealt already with the question posed by a national court or a similar one

-> no preliminary ruling

Preliminary Rulings

Explain the term 'acte claire'

CLIFIT

There is no doubt about the clarity of EU law

-> No preliminary ruling

Challenging the EU's action or inaction

What are the respective Treaty articles concerning the challening of the EU's action or inaction?

Art. 258 TFEU -> Commission's supervisory capacities

Art. 260 TFEU -> lump sums and penalty payments

Art. 263 TFEU -> Locus standi of applicants

Challenging the EU's action or inaction

What are privileged applicants?

Member States and major EU institutions

Challenging the EU's action or inaction

What are non-privileged applicants?

Individuals and companies

Challenging the EU's action or inaction

What are the criteria for direct concern?

1. Impact on the applicant is direct

2. Measure is not dependent on the excercise of discretion  by  a MS  

Challenging the EU's action or inaction

What are the criteria for individual concern?

1. Applicant is part of a closed class which is affected by the measure -> Plaumann test

- Applicant is affected by reasons of certain attributes  or circumstances

- They are differentiated from all others

- They can be distinguished individually

or

2. Is part of a group wich is affected more seriously of the measure than others

Challenging the EU's action or inaction

What are the grounds of annulment of a legislative act?

1. Lack of competence

2. Infringement of an essential procedural requirement

3. Infringement of the Treaties or a rule of law

4. Misuse of power

EU liability

According to Art. 340 TFEU the EU is liable for acts of its institutions and its servant compliant with the general principles common to the laws of the MS. What are those?

1. Non-discrimination

2. Legititmate expectation

3. Fundamental human rights (CFREU)

4. Most Treaty Articles

EU liability

What is ment by 'reduction in damages' in the context of EU liability

If the applicant is contributory to the loss he may be refunden only partially

EU liability

What is ment by 'duty to mitigate loss' in the context of EU liability

Applicant must strive to minimise the experienced loss

EU liability

What is ment by 'contributory negligence' in the context of EU liability

Applicant must provide any information that might prevent loss

EU liability

What is ment by 'unjust enrichment' in the context of EU liability

If the enrichment of a person causes the loss of another without a contract. The latter may claim compensation

EU liability

How long has an potential applicant to make its claim for damages?

5 years

Human Rights in the EU

What is the legal standing of the CFREU?

Art. 6 (1) TEU

CFREU has the same legal value as the Treaties

EU liability

What are the criteria assessing whether the EU can be held liable?

Schöppenstedt

1. Measure breached confers rights to individuals

2. Rights are clear from the measure

3. Causal link between breach and loss

Brasserie du Pêcheur

4. Breach was excusable or not

5. Breach was intentional or involuntarily

Bergaderm

6. Complexity of the measure to be regulated

7. Scope of discretion left to the relevent institution

What does the principle of supremacy state?

EU law precedes national law

Internationale Handelsgesellschaft

What conditions must a Regulation fulfil in order to be able to be directly effective?

It must be clear, precise and unconditional

It must confer rights to indidviduals

Leonesio

Besides the failure to transpose a Directive, for what else ca a state bel held liable?

Brasserie du Pêcheur

1. Executive breach, infringemen of the Treaties

Dillenkofer

2. Infringement of secondary law 

Are national courts allowed to invalidate EU law?

According to Fotofrost they are not

What are the limits of Art. 114 TFEU

Tobacco Advertising

No reasons to use Art. 114 TFEU

1. Disparities between national rules

2. Abstract risk of infringement of fundamental freedoms

3. Unlikely Emergence of obstacles to the internal market 

Centre of Gravity test

Recovery of indirect taxes

Legal base should be chosen according to the main objective of the measure

What are the limits to a dual legal basis?

Titanium Dioxide

If the procedures contradoct each other, a dual basis is not possible

What must a legal basis ensure?

Titanium Dioxide

Legal basis should ensure the possibility for judicial review

Human Rights

Are international agreements on human rights binding for EU MS?

Nold

International agreements on human rights on which MS collaborated should be followed by the framework of EU law but are not binding unless they are incorporated into the Treaties

What is the relation between fundamental rights, general principles and the CJEU of EU law?

Stauder

Fundamental rights are enshrined in the general principles of EU law and protected by the Court

What is the relation between the ECHR and EU law?

Rutlili

Rights stated in the ECHR are part of EU law