Direct and Indirect Effect

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  • Created by: Edward
  • Created on: 25-02-16 09:22
Van Gend en Loos (1962)
CJEU: independently of the leg’n of the MSs, Community law thus not only imposes oblig’ns on ind’s but is also intended to confer upon them rights which become part of their legal heritage
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Firma Alfons (1971)
CJEU: Art 110 TFEU contains a prohibition against disc’n, constituting a clear and unconditional oblig’n and there was NO discretion left to MSs- thus, art 110 TFEU produced direct effects and creates ind rights of which national courts must take acc
2 of 22
Van Gend en Loos
Conditions for direct effect: prov’n must be clear and unambiguous; must be unconditional; its operation must not be dependent on further action being taken by Union or national authorities
3 of 22
Politi (1971)
CJEU: ‘by reason of their nature and their function in the system of the sources of Community law, regulations have DE and are, as such, capable of creating ind rights which national courts must protect
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Orsolina (1971)
CJEU: regulations become part of the national legal system and the direct applicability under art 288 TFEU cannot be hindered by national practices
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Franz Grad (1970)
CJEU: decisions could have vertical DE – provisions according to which decisions are binding in their entirety on those to whom they are addressed enables all those who have an interest in the fulfilment of this oblig’n created by the decision to inv
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Cohn-Bendit (1980)
Counseil d’Etat argued that if the choice is left to MSs as to the form and method to achieve the oblig’n, they require further action in form of domestic leg’n
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Grad (1970)
CJEU rejected Counseil d’Etat’s argument as the effet utile of a directive would of a directive would be weakened if the nationals of a MS that had failed to implement a directive, or had implemented it wrongly, were denied rights contained in a dir
8 of 22
Van Duyn (1974)
CJEU: the directive was directly effective as it imposes on a MS a precise oblig’n which does not require the adoption of any further measure on the part of either the Union institutions onr of the MSs and which leaves them, in relation to its implem
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Ratti (1978)
CJEU: a MS which has not adopted the implementing measures required by a directive in the prescribed period may NOT rely, as against its ind’s, on its own failure t perform the oblig’ns which the directive entails
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Marshall (1991)
UK govt failed to properly implement ETD which was held to be directly effective
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Ursula v Becker (1981)
A credit broker successfully claimed the benefit of a provision of a Directive against the German VAT authorities as they had failed to implement the directive
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Marshall (1991)
Although CJEU accepted the principle that Directives could NOT impose oblig’ns on an ind (horizontal effect), here there was an ‘emanation of the state’ (vertical effect_ thus, could be enforced
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Duke v GEC (1988)
Mrs D was employed by a oublic company and did not succeed as she was requesting horizontal effect to enforce the directive against another ind, albeit a company
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Webb (1993)
Unless the infd is able to show that there is some relationship with the state, principle of DE will NOT apply even if all the 3 conditions for DE can be fulfilled
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Faccini-Dori (1995)
CJEU refused to abolish distinctin between vertical and horizontal direct effect of directives – CJEU: the relevant prov’ns of the directive were uncond’l and sufficiently precise, but stated that if the Community wished to enact oblig’ns between ind
16 of 22
Ratti (1978)
Until time-scale for implementation of the directive has passed, the Directive cannot have DE
17 of 22
Emmott (1990)
The time limit does not run until the date when the national implementing leg’n is correctly adopted
18 of 22
Von Colson and Harz (1983)
CJEU used art 4(3) TEU which requires MSs to take all approp measures to ensure fulfilment of their Comm’ty oblig’ns – thus, even if the principle of DE does NOT apply, the courts in MSs are required to interpret national leg’n specifically passed to
19 of 22
Marleasing (1989)
CJEU: principle of indirect effect could be applied even if the nec national leg’n had not been intro’d to comply with the Directive
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Koplinghuis (1986)
CJEU limited Von Colson principle with regard to criminal prosecutinos, if this wold make the accused guilty where he wiould otherwise have been acquitted
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Mangold v Helm (2004)
CJEU enforced Directive, not by DE, but by stating that the Directive was fulfilling the general principle of EU law relating to non-disc’n
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Other cards in this set

Card 2

Front

CJEU: Art 110 TFEU contains a prohibition against disc’n, constituting a clear and unconditional oblig’n and there was NO discretion left to MSs- thus, art 110 TFEU produced direct effects and creates ind rights of which national courts must take acc

Back

Firma Alfons (1971)

Card 3

Front

Conditions for direct effect: prov’n must be clear and unambiguous; must be unconditional; its operation must not be dependent on further action being taken by Union or national authorities

Back

Preview of the back of card 3

Card 4

Front

CJEU: ‘by reason of their nature and their function in the system of the sources of Community law, regulations have DE and are, as such, capable of creating ind rights which national courts must protect

Back

Preview of the back of card 4

Card 5

Front

CJEU: regulations become part of the national legal system and the direct applicability under art 288 TFEU cannot be hindered by national practices

Back

Preview of the back of card 5
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