Direct effect/ Indirect effect and state liability

  • Created by: Emma13
  • Created on: 20-06-18 11:27
What is direct applicability?
EU law is directly applicable if it is recognised as part of UK law. Treaty articles and regulations are directly applicable as they become part of UK law as a result of ECA 1972
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What is direct effect?
EU law is direct effective if it can be enforced in a UK court
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What does s2(1) ECA 1972 establish?
Rights, obligations ect arising under EU law to be enforced by UK court
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What does s2(4) ECA 1972 establish?
Uk legislation past/future to be interpreted in light of EU right/ obligations
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What does s2(3) EcA 1972 establish?
UK court to apply EU law as interpreted by ECJ
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What does s2(2) ECA 1972 establish?
Implementation of directives - action is required by MS and power is given under this
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What is the appropriate court to bring a claim?
National court not ECJ, just because a law is directly applicable it doesn't mean individuals can rely on it - depends on direct effect
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What is vertical direct effect?
Claims between individuals and the state
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What is horizontal direct effect?
Claims between individuals
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What does Van Gend Loos and Defrenne v Sabena establish?
Treaty articles have VDE (VGL) and HDE (DvS)
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What is the VGL criteria?
Direct effect of EU law in national court 1. Treaty articles must be sufficiently clear, precise and unconditional and 2. leave no room for exercise of discretion in implementation
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What does Leonesio and Antonio Munoz establish?
Regulations have direct effect provided they satisfy VGL they have VDE (Leonesio) and HDE (Antonio Munoz)
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What is proper implementation?
Where a MS has properly implemented a directive, an individual relies on the national implementing legislation
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What is failure to implement/ incorrect implementation?
National law fails to implement/ fails to achieve directives aims
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What does Van Duyn establish?
Directives are capable of DE, as it would be unfair if MS could rely on failure to implement a directive to defend a claim. ECJ said directives capable of DE provided VGL criteria satisfied
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What does Ratti establish?
To rely on DE implementation date for correct implementation must have passed
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What does Marshall establish?
Directives can only be enforced against state VDE
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What does Duke, Le Foyer establish?
Directives can't have HDE
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What did Faccini Dori estbalish?
Directives can't have HDE if the community intended to give rights as between individual horizontal rights it must frame legislation in the form of regulations which don't need implementing.
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What does Foster establish?
Emanation of the state? 1.Providing a public service pursuant to a statutory duty? 2. Under state control? 3. Special powers
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What does Rolls Royce establish?
Not an emanation of the state as did not provide public service
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What does Griffin establish?
Emanation of the state - privatised water company offered public service and under state control
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What did Nut establish?
Emanation of the state - voluntarily aided school ok as criteria only guidelines
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What did Farrell establish?
ECJ confirmed Nut, not all Foster criteria needed
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What is indirect effect?
As interpreted by ECJ, Art 4(3) provides that the court of each MS have a duty to try to interpret national law consistently with EU law, whether or not it has DE (Purpose approach)
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What did Von Colson establish?
Indirect effect - as national courts are part of the state, they are under an obligation to interpret national law in line with EU law
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What did Marleasing establish?
For indirect effect there needs to be a national law existing to be interpreted
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What did Lister establish?
Application of IDE, HOL decided they had to construe UK regulation in such a way that accords with the decisions of EU courts
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What did Pickstone establish?
HOL used purposive approach to write words in (IDE)
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What did Duke establish?
Non implementing legislation - HOL decided not appropriate to interpret existing UK law in line with later directive
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What did Marleasing establish?
Non Implementing legislation - ECJ said Duke wrong; held national court must interpret national law in line of any relevant directive as far as possible, irrelevant whether before/after EU law
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What did Webb establish?
Non implementing legislation - HOL interpreted earlier UK act to conform with later directive
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What did Wagner Miret establish?
Limitations of IDE - contra legum principle; where national legislation clearly conflicts with relevant directive - only as far as possible
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What did Arcaro and Rolex establish?
Limitations of IDE - where IDE would impose criminal liability n/a
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What did Pfeiffer establish?
Limitations of IDE - national law as a whole in order to assess to what extent it may be applied so as not to produce a result contrary to that sought by the directive
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What is state liability and what set this out?
The decision in Francovich developed the principle of state liability for breach of EU law. Enables individuals to take proceedings against the state in accordance with the guidelines set out by the ECJ
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What are the conditions set out in Francovich?
Right of action for SL arises where 1.the directive confers right on individuals, 2.. the content of those rights is identifiable from the directive 3. there is a causal link between the failure to implement and the damage
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What did Factortame establish?
MS will be liable in damages for infringing EU law if..1.the breach infringes a rule of law intended to confer rights on individuals, 2.the breach is sufficiently serious 3. direct casual link between breach of S.obligation and damage to applicant
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What is sufficiently serious?
Whether a breach is s.s depends on whether the MS has "manifestly and gravely disregarded the limits on the exercise of it's powers"
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How does an individual enforce a state liability claim?
In order to succeed in a SL claim, the C must prove that there has been a s.s breach on the part of the state
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What does Ex p BT establish?
The factors to consider when assessing this inc the clarity and precision of the rule breaches, whether any error of law was excusable and whether the position taken by EU institution may have contributed towards infringement
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What did Dilenkofer establish?
Failure to correctly implement a directive was automatically considered to be a sufficiently serious breach
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What did Wagner Miret establist?
If provision of domestic law can't be interpreted in such a way as here, state may be obliged to make goods the C's loss on the principle of SL under Francovich
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What did Costa establsih?
Supremacy of EU law - becoming a MS = agreeing to the body of law that is created by EU. MS agreed to prioritised EU law above own
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What did International H establish?
Even 2nd EU law was higher form of Law than the constitutional law of a MS
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What does Art 4(3) TEU establish?
Imposes a general obligation on all MS to make sure they full fill all obligations under the treaty
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What does s2(1) ECA 1972 establish?
Eu treaties are recognised as part of EU law
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What does s18 EUA 2011 establish?
Eu treaties only recognised as UK law only by virtue
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What does VLG establish?
CJEU said 'community constitutes a new legal order'
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What did Lord Denning say in McCarthy v Smith?
'Bounded duty to give priority to EU'
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What did Factortame establish?
Parliamentary supremacy modified by s2(4) ECA allowed HOL to disregard AOP
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What did Simmenthal establish?
EU law takes priority over subsequent national laws, implied repeal doesn't apply, EU law entrenched
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What did Melki and Abdeli establish?
Applies even in consequences of the application of supremacy means that there is a legal vacuum while the MS re legislate
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Other cards in this set

Card 2


What is direct effect?


EU law is direct effective if it can be enforced in a UK court

Card 3


What does s2(1) ECA 1972 establish?


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Card 4


What does s2(4) ECA 1972 establish?


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Card 5


What does s2(3) EcA 1972 establish?


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