2. Supremacy & Direct Effect

Question 1

Direct Effect and Applicability

Answer 1

DIRECT EFFECT: where a provision of EU law has the effect of immediately conferring rights on individuals.

DIRECT APPLICABILITY: where a provision of EU law automatically becomes part of a MS’s domestic law, no implementation is required.

Question 2

Direct Effect: Treaty Articles

Answer 2

Articles are DApp.

Capable of DEff iff they are SUFFICIENTLY CLEAR & PRECISE and UNCONDITIONAL (VGenL).

• both vertically and horizontally (Defrenne v Sabena).
• for both + & - obligations on a MS (Lutticke (Alfons) v Hauptzollamt).

Question 3

Direct Effect: Regulations

Answer 3

Art 288 TFEU
Yes DApp.

Capable of DEff (Franz Grad) then (Politi).
- Both vert. (Leonesio) and horiz. (Antonio Munoz v Frumer).

As long as VGL TEST is satisfied (Agricola):

1. Sufficiently C & P (give rise to an identifiable right).
   - obligations must be in unequivocal terms (Agricola)
2. UNCONDITIONAL (Agricola).
   - no further measures required for implementation.
   - MS has no discretion in giving effect to the rights contained in the regulation.

Question 4

Direct Effect: Decisions

Answer 4

Capable of DEff due to binding nature, if meet VGL Test (Franz Grad).
- ONLY have DEff against those addressed by the decision (Carp Snc v Encorad Srl).

Question 5

Direct Effect: Recommendations and Opinions

Answer 5

These are not binding and so are incapable of DEff (Grimaldi v Fonds).

Question 6

Direct Effect: Directives

Answer 6

Art 288 TFEU: Not DApp, binding only to the ‘result to be achieved’, MS implementation is required (Dori v Recreb Srl). OD from AG Lenz regarding v Deff.

Capable of DEff vert. (Van Duyn), but NOT horiz. (Marshall) only binds those addressed. They apply regardless of the capacity in which the state is acting, whether employer or public authority (Marshall).

To be DEff, a Directive must be:
1. VGL Test: C & P and UNCONDITIONAL. (Van Duyn).

2. INCORRECTLY IMPLEMENTED (Ratti).
   - not at all (MS can’t rely on own failures) (Ratti).
   - Partially or incorrectly (VNO).
   - Correctly but fails to achieve result sought by Dir. (M&S v Commissioners).
3. IMP. DATE PASSED (Ratti).
4. BODY MUST BE EMANATION OF THE STATE (Doughty v Rolls Royce). See EofS card.

Question 7

Direct Effect: Directives - EofS

Answer 7

Emanation of the State, body must be one for a Directive to have DEff (Doughty v Rolls Royce).

GR: TRIPARTITE test should be applied (Foster v British Gas).
The authority must be:
- resp. for providing a public service, AND
- under control of the state, AND
- possess special powers for this purpose.
Applied in (Foster), (Rolls Royce), (Griffin), (Una Film), (Reiser) and (Portgas).

• only use BIPARTITE in unusual circumstances (NUT v St Mary’s Church School), LJ Schiemann, school not a commercial undertaking, was no need to demonstrate special powers.
  The authority must be:
• subject to state control OR (Kampelmann)
• posses special powers.
  Applied in (NUT), (Kampelmann) and (Sozialhilfeverband).

Farrell v MIBI and Bipartite Test:

• Grand chamber rejected TriTest as CoJ in Foster had not intended to lay down a general test
• Reformulated Bipartite Test.
• –local/regional authorities, part of state in broad sense, OR
• – subject to control of a public body OR
• –required to perform a task in public interest and have been given special powers for that purpose.

Question 8

Direct Effect: Directives - EofS EXAMPLES

Answer 8

EMANATIONS OF THE STATE

• Local/regional auth. (Fratelli).
• Health Authorities (Marshall).
• Tax Authorities (Becker).
• Police Forces (Johnston).
• A privatised water company satisfying TRI TEST (Griffin).
• A private company est. and owned by a state association (Sozial…).
• A private company owned by state with license for working on highways (Reiser).

NON-EMANATIONS OF THE STATE

• A state-owned company acting freely and not providing public service (Rolls Royce).
• A partly-owned state company with exclusive Gov concession (Portgas).
• A film advertising company controlled by the state (Una Film).

Question 9

Superiority of EU Law

Answer 9

VGL: “The Community establishes a NEW LEGAL ORDER of international law for the benefit of which the states have limited their sovreign rights”.

Costa v ENEL - set out the principle.
- “It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overidden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself beign called into question.”

Getreide - precedence over constitutional laws

Simmenthal - ‘every national court must, in a case within its jurisdiction, apply community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the community rule.’ Left no doubt as to the superiorty of eu law.