2869268
Description
Flashcards by pavlina.hunt, updated more than 1 year ago
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Created by pavlina.hunt
over 9 years ago
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| Question | Answer |
| Marks and Spencer | The mere fact that a Member State has purported to implement a Directive (via correct national transposition measures) does not prevent its provisions from being enforceable before the national courts if that Member State is permitting widespread misapplication of the Directive |
| Ratti (direct effect) | The relevant provisions of an EU Directive are not enforceable before national courts (they do not become part of national law and are therefore not directly applicable) until the time limit for implementation laid down in the Directive has expired. |
| Centrosteel (indirect effect) | The national courts’ duty to interpret national law to comply with EU Law (indirect effect) only arises ‘postdating the expiry of the period for transposing the Directive’. |
| Adeneler (indirect effect) | ‘the general obligation owed by national courts to interpret national law in conformity with the Directive exists only once the period for its transposition has expired’ |
| Wallonie (exception to Ratti) | MS has taken steps to implement a Directive (whether positive or negative). AND MS has made it clear that these are final steps are in place. (rarely) AND The steps ‘seriously compromise’ the result required by the Directive. (rarely) |
| Werner Mangold (Ratti exception) | MS has taken ‘retrograde steps’ which have obviously ‘seriously compromised' the result required by the directive, thus clearly showing that they would not be making any attempt to rectify the situation before the expiry of time limit for implementation. |
| Simmenthal II | national courts are under a duty to uphold the supremacy of EU law and they are therefore obliged to disapply (ignore) any conflicting provisions of national law even if adopted subsequently to the EU law in question. (direct effect only) |
| Van Duyn | Directives also have direct effect. |
| Van Gend en Loos (direct effect principle) | The provision has to be: - sufficiently clear and precise; - unconditional; and -leave no room for the exercise of discretion in its implementation. |
| CILFIT (art 267 TFEU reference) | NC does not need to make an art. 267 TFEU reference if: - there is a prior CJEU ruling on the matter - the issue is Acte Claire (almost not possible because there are 24 official languages) |
| Köbler (refusing art. 267 TFEU) | CJEU ruled that where a national court fails to refer under Article 267 when it is required to do so, the State could be liable to pay damages under the Francovich I principle for the illegal failure to act by the national court. |
| Marshall No. 1 (vertical direct effect) | Directives have direct effect, but a partial one, as they can only be enforced against the State or Emanation of the State. (vertical direct effect) |
| Faccini Dori (vertical direct effect) | A request for directives to have horizontal direct effect was refused by the EUCJ and the Marshall 1 principle was confirmed that they have only vertical direct effect. |
| Rheinmuhlen | The only binding authority on points of EU law is the CJEU itself and therefore lower national courts are obliged to apply the rulings of the CJEU over those of the higher national courts. |
| Foster v British Gas Plc | Definition of emanation of the State Para 18: Subjecgt to a sufficient degree of State control or has special powers Para 20 (wrongly applied by UK courts): public service and state control and special powers |
| - Kampelmann - Marrosu - Vassallo | All Confirm the definition of an emanation of the State laid in para 18 of Foster v British Gas |
| Doughtt v Rolls Royce Plc | UK courts used the wrong test (para 20 Foster v BG) and reached the wrong conclusion, that RR is not an emanation of the state, because it doesn't provide public service |
| Griffin v South West Water Services Ltd | UK court has used the wrong test (para 20 Foster v BG) to determine if the SWWS is an emanation of the State, but luckily still reached the right conclusion |
| NUT | Courts still insists that para 20 Foster v BG is the correct test for determining if a body is an emanation of the State, but if it is carrying out a traditional state function it can be an emanation of the State if 2 out of the 3 criteria are satisfied. If carrying out commercial activities then 3/3. |
| Von Colson (indirect effect) | ‘... in applying national law and in particular a national law specifically introduced to implement a directive, national courts are required to interpret their national law in the light of the wording and purpose of the directive’ |
| Duke v. GEC Reliance (UK) | HL: It is not possible to impute Parliamentary intention to comply with EU law when the relevant national law pre-dates the EU law. (repealed in Marleasing) |
| Marleasing | ‘whether the provisions in question were adopted before or after the Directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the Directive, in order to achieve the result pursued by the latter...' |
| NC duty of interpretation clarified through EU case law | Wagner-Miret: Everything possible; but NC not legislators; cannot resolve clear conflict between intention of national Legislature and EU law Pfeiffer: Everything within NC’s jurisdiction Centrosteel: Even well-settled case law Impact: Strong duty but not expected to go contra legem |
| NC duty of interpretation IDE UK case law | Litster; Chessington World of Adventures and Webb II: NC can add words (fill in the gaps) providing no distortion of Parliamentary intention Webb I: Refusal to adjust common law Byrne: Refusal to interpret contract |
| Francovich I | If a MS fails to implement a Directive is bound to make good any damage suffered by an individual as a result, if three pre-conditions are present - Directive confers rights on individuals - The right must be identifiable based on the provisions of the Directive - Casual link between the non implementation and the damage |
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