EU Law Answer Structure (No plagiarism or AI)
Direct effect, indirect effect and state liability
Direct effect
It is the embodiment of primacy of EU law that requires national laws which
conflict to give way to EU law. The principle behind this is that under EU law,
people may be granted rights which must be upheld by the courts of Member
States. It makes it possible for people to use their own national courts to
take legal actions involving EU law. It also allows Member States to apply
EU legislation and, in some cases, EU directives directly. This principle was
created and developed by the CJEU in a number of judgements instead of the EU
Treaties.
For Treaty articles:
The doctrine on direct effect was first established by the ECJ in the case
of Van Gend en Loos (1963), where it was held that individuals are subject
to the rights and obligations of Community law, therefore it ought to be
enforceable directly in national courts.
Criteria provisions have to meet in order to be directly effective:
The provision must be sufficiently clear and precise, it must also be
unconditional. (Van Gend)
There can be vertical DE (Van Gend) and horizontal DE (Defrenne v
Sabena (No.2) 1976).
Vertical direct effect relates to relations between individuals and the
country (Van Gend). Directives are only vertically DE, and will not be
enforceable against individuals (Marshall v Southampton Health Authority
(1986); Faccini Dori v Recreb Srl (1994)).
Zack Scott’s UOL notes
, Horizontal direct effect relates to relations existing between two
individuals. Therefore, one individual may invoke an EU provision against
another individual at a national court (Defrenne v Sabena (No.2) 1976;
Walrave v Koch (1974); Thieffry v Paris Bar Association (1977); Brasserie
de Haecht (1973)).
For Regulations:
Regulations can be directly effective (Politi v Ministry of Finance for
Italian Republic (1971); Leonesio v Italian Finance Ministry (1972)).
Article 288 TFEU also specifically states that regulations are directly
applicable in MS.
Conditions for direct effect are the same as for Treaty articles. Can also
have vertical DE (Leonesio (1972)) and horizontal DE (Antonio Munoz y Cia
SA v Frumar Ltd Case (2002)).
For Directives:
Directives are acts addressed to Member States and must be further
legislated into national law. However, to protect people's rights, the Court
does recognise the direct effect of directives in some circumstances. In Van
Duyn v Home Office (1974), the Court established that a directive has direct
effect when its provisions are unconditional, sufficiently clear and precise.
Not only that, the date for implementation also needs to have passed.
(Pubblico Ministero v Ratti (1979)).
Directives are only able to have a vertical direct effect on Member States;
they cannot be used by Member States against an individual, as was confirmed
in Faccini Dori v Recreb (1994).
Zack Scott’s UOL notes
, However, if a body performing public services satisfies all four
requirements of the Foster test, it is regarded as an emanation of the state
and is consequently bound by the vertical direct effect of the directives.
(Foster v British Gas (1990)).
Under the Foster test, a body, regardless of its legal form, that is
responsible for providing a public service under the control of the state as a
result of a state-adopted measure is referred to as an "emanation of the
state" and has special powers that go beyond those which result from the
normal rules applicable in relations between individuals.
However, according to the Elaine Farrell judgment (2017), an emanation
of the state does not need to have all the qualities mentioned above, as it is
more of a flexible approach. Therefore, only two or three conditions need to
be satisfied.
Indirect effect
Direct effect is a rule of interpretation that requires courts in Member
States to interpret their national laws in accordance with EU law, particularly
directives, even if those directives do not have direct effect.
The failure of a Member State to implement a directive results in indirect
effect where the party against whom the directive is sought to be enforced is a
private entity or otherwise does not comply with the requirements that would
give the directive direct effect.
According to Von Colson and Kamann v Land Nordrhein-Westfalen (1984),
the ECJ ruled that national courts must interpret national law in line with EU
law to the extent that national law gives it the discretion to do so.
Zack Scott’s UOL notes
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