Direct Effect

Front 1

Direct effect

Back 1

Using EU law in national proceedings.

Front 2

Craig and de Burca

Back 2

The CJEU...took the bold step of legitimating the private enforcement of EU law.

Front 3

Van Gend en Loos

Back 3

Independently of legislation of MS, EU law not only imposes obligations on individual but it is also intended to confer upon them rights which become part of their legal heritage.

Front 4

Direct Effect trigger conditions

Back 4

Provision must be clear and precise. The provision must be unconditional.

Front 5

Hartley

Back 5

If the provision merely lays down a general objective or policy to be pursued, without specifying the appropriate means to attain it, it can hardly be regarded as a legal rule suitable for application by a court of law.

Front 6

Cava case

Back 6

A Union provision is unconditional where it is not subject, in its implementation or effects, to the taking of any measure either by the institutions of the Union or by Member States.

Facts: Directive said MS had to adopt appropriate measures to encourage recycling and reduce waste. The Italian g'ment decided a region in Italy was going to house a waste tip. Italian environmental group protested that the national law conflicted with EU law. Court said necessary measures was not a specific right so that was not unconditional so not directly effective. The directive was not precise in how to achieve its objective. The CJEU sided with the Italian g'ment.

Front 7

Vertical direct effect

Back 7

Imposing legally enforceable obligations on MS

Front 8

Horizontal Direct effect

Back 8

Imposing legally enforceable obligations on private individuals

Front 9

If treaty provision is clear, precise and unconditional....

Back 9

Vertical direct effect: yes (van gend en loos)

Horizontal direct effect: Yes

Front 10

viking

Back 10

Finish passenger operator was originally registered in Finland meaning it had to comply with Finish employment law. Owners decided to register the boat in Estonia instead. Massive strike ensued. Case went t court and owners said the strike was disrupting their right to provide a service. Fisherman claimed there was no such thing as horizontal direct effect. Court said they were wrong.

Front 11

Laval

Back 11

Contract to build a school in Sweden signed by Latvian construction company. They were invited to join a Swedish Trade Union and declined. Trade unionists blocked their access to build a school and caused the Swedish representatives of the Latvian company to go bankrupt. Latvian comany claimed this was blocking their right to provide a service.

Front 12

If general principle is clear, precise and unconditional...

Back 12

Vertical direct effect: yes

Horizontal direct effect: maybe?

Front 13

Akerberg Fransson

Back 13

Professional tax avoider. He was originally charged with not paying taxes then was charged with fraud. He argued he could not be tried twice for the same crime (under art 50). In Sweden, you can be charged twice (once for a civil offence and once for a criminal offence-Fransson argued this was contrary to Art 50). CJEU said it was up to Sweden to determine whether the two offences were the same, if they were then art 50 applied.

Front 14

Mangold

Back 14

Mangold worked on a fixed term contract (legal under German law). He went to court saying the EU directive was soon to be implemented which banned this. Germany said as the directive hadn't yet been implemented, they didn't have to abide by it. CJEU said the directive represented a general principle of no discrimination on the grounds of age.

Front 15

Kucudeveci

Back 15

Woman started working when she was 18 but was let go at 28. German law said she only got employment benefit once she turned 25. CJEU said this was contrary to the EU general rule of no discrimination.

Front 16

HK Denmark

Back 16

Experion set up a pension scheme for employees under the age of 25 so their contribution to pension schemes were 3%, those between 25 and 45 paid 6% and those over 45 paid 12%. Again the CJEU said this was age discrimination.

Front 17

Article 288 TFEU (direct effect of regulation)

Back 17

A regulation shall be bidning in its enetirety and directly applicable in all MS.

Suggests Treaty authors probably intended 'directly applicable' to mean the same thing as 'directly effective.'

But since Van Gend en Loos, the CJEU has distinguished between 'directly applicable' and 'direct effect'. So regulations are the only union instrument that are directly applicable but they are only directly effective where their provision are sufficiently clear precise and unconditional.

Front 18

Direct effect of directives

Back 18

Require implementation, time limit for implementation.

Once implemented they are part of national law so individuals can rely on them.

But Art 288 TFEU addressed MS not individuals. Nevertheless the CJEU said individuals obtain right directly from directives.

Front 19

Van Duyn v Home Office

Back 19

'It would be incompatible with the binding effect...to exclude...the possibility that the obligation which it imposes may be involved by those concerned.'

Dutch woman wanted to come to the UK but was the secretary for Scientology church. UK classed her as a threat to public safety. Pre Schengen so she needed a visa. Woman claimed that by not granting her a visa, the UK was restricting her right to free movement. CJEU said directive wouldn't be effective if you cannot relu on them if MS had not complied with it or implemented it wrong.

Front 20

Ratti

Back 20

'A MS which has not adopted the implementing measures required by the directive in the prescribed period may not rely, as against individuals, on its own failure to perform these obligations which the directive entails.'

Front 21

Horizontal effect of Directives

Back 21

No

Front 22

Marshall v Southampton Area Health Authority

Back 22

A directive may not or itself impose obligations on an individual because directives are addressed to MS.

Marshall worked for an NHS body, she was dismissed at 62 but wanted to continue work. Case went to court and she tried to rely on EU directive on equal treatment of men and women (retirement age for women was 62 but for men it was 65). UK had not implemented the directive. Southampton Area Health authority argued that it might be a public body of sorts but were acting as a private employer so were right to act under the Social Security Act. Private bodies cannot be held liable for implying a directive.

Front 23

Foster v British Gas

Back 23

British Gas had become a 'private establishment' in 1986 but had the same duties as a public body because of the reason stated below. women who were employed by the Company had to retire at 60. They complained arguing this was contrary to the EU directive of no gender discrimination. They relied on the Marshall case. British gas argued it was a private company so direct effect could not be applied. The ECJ disagreed: 'BG was a nationalised industry and the holder of a monopoly in gas-supply in the UK.'