Principle in Factortame No 2 (HL)
UK court has duty to override national law in conflict with directly enforceable EU law.
What are the two objectives pursued by Direct effect?
- Protect individual EU rights in national courts
2. Ensure MS compliance with EU law under principle of loyal cooperation Art 4(3) TEU
What is the connection between Direct Effect and Commission’s power to bring actions against MS?
They operate independently, though allows EU law to be effective much quicker than litigation against MS by the Commission.
Which types of EU law did Van Gend en Loos deem directly effective?
Primary and secondary (treaties and legislation)
What were the three conditions for direct effect set out in Van Gend en Loos?
- Sufficiently clear and precise
- Unconditional
- Not dependent on further action by MS
Facts and law in Zaera
Provision of EU law was “raising the standard of living” which a Spanish pensioner attempted to rely on.
HELD - direct effect excludes provisions that are too general, vague, or merely aspirational.
Facts and law in Van Duyn
Scientology worker refused entry because membership of “socially harmful” organisation
HELD - Regarding condition 2, unconditional, A provision which allows derogations which are subject to judicial review are directly effective if they impose a clear obligation.
Facts and law in Defrenne
3 points of law
female airline cabin crew claimed discrimination based on right to equal pay. Wording of Treaty was that the “principle” of equal pay should be applied.
HELD -
- “principle” was sufficiently precise.
- The third condition (not dependent on further action) could not be defeated by the failure of certain MS to discharge the obligation.
- Direct effect applies also horizontally if 3 conditions are satisfied.
Are regulations directly effective? Name 2 main cases
Amsterdam Bulb - Two major breakthroughs:
- Regulations operate independently of any measure of reception in national law.
- Regulations are subject to same VGL conditions and capacity for horizontal effect
Leonisio; Frumar and Redbridge - regulations must be directly effective by virtue of their purpose and nature.
Are decisions directly effective? Name 2 main cases
Grad - can have direct effect justified by notion of invocability, or more precisely, conferral of rights.
Carp; Foslev - reluctant to allow decisions addressed to MS to have horizontal direct effect, but left open possibility of horizontal direct effect if decision was addressed to private party. (Latter point confirmed in Foslev)
What is step one in evaluating directives?
Only directly effective if time limit has elapsed (Ratti; Becker)
What is step two in evaluating directives?
Directly effective if:
- MS did not implement directive at all (Ratti)
- Incorrect implementation (VNO); or
- Ineffective implementation (implementing correctly then adding bureaucratic constraints like making a claim overly difficult) (Marks & Spencer)
What is step three in evaluating directives?
VGL conditions minus the third requirement:
- Sufficiently clear and precise
- Unconditional
Which case said that MS have limited discretion when implementing a Directive, and have no discretion not to fully & properly implement it?
Enka.
What is the first justification of directly effective directives in Van Duyn?
Effectiveness of EU law. The MS have no discretion whether to implement, merely how to implement (Enka). The binding nature of directives will be better enforced by dual vigilance, allowing individuals to rely on them.
What is the second justification of directly effective directives in Van Duyn?
Textual reason. Art 267 TFEU allows national courts to refer questions concerning any EU measure to CJEU. Provisions are not referred, in the face of expensive litigation, unless they are directly effective. Therefore there is the relevant implication of direct effect in Art 267.
What is the third justification of directly effective directives? And what case?
Ratti - Estoppel. MS cannot deny a directive’s effect by relying on their own failure to properly implement it.
Why are Directives not horizontally directly effective? (Name case)
Marshall/Dori - Marshall: says that the binding nature of a Directive, which constitutes the basis of direct effect, exists only in relation to the State, not capable of conferring rights upon individuals.
Name two examples of “emanations of the state”
Johnston - Chief Constable
Fratelli - Local authorities
What was the health authority referred to as in Marshall?
Organ of the state.
What argument did the AG Lenz bring forth for the court in Faccini Dori to revisit Marshall, but was refused?
Effectiveness of EU law - since the Estoppel argument could not be applied under Marshall’s reasoning for prohibition of horizontal disputes.
What are the three limbs of the Foster test?
- A body, which
- Has been made responsible, pursuant to a measure adopted by the State, for providing a public service under Control of the State and
- Has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals.
What are the critical analysis aspects of the Foster test?
Control of the State
Special powers beyond normal rules between individuals.
Facts in Scholz
Italian University, under Foster test:
Made responsible for providing education; and
Was granted special powers to award degrees and qualifications
