direct/indirect effect & state liability

Anotações:

• Direct effect - enables individuals to invoke a provision of Union legislation directly in their national courts ( this ensures effective application of Union law.)
• Principle of Direct effect created in Van Gend- held that Union law constituted a new legal order. M/s are not only obligated but rights are created for individuals. hence individuals should be able to invoke EU law directly in their national courts. ( Treaty articles capable of having direct effect.

1. Direct effect
   1. enables individual to invoke EU directly in national courts- this ensures effective application of Union law.
   2. Principle created in Van Gend - Q whether nationals can enforce a treaty art? Held: the treaty constituted a new legal order where M/S have limited their sovereignty- treaty art must be seen as conferring rights to individuals which the national courts must protect
      1. Conditions: clear, unconditional (not positive), no further implementation needed.
         1. Regulations- art 288 - binding in their entirety must satisfy conditions in Van Gend
         2. Directives - Van Duyn - C wanted to rely on a directive that had not yet been implemented to her advantage, held: it was possible for directives to have direct effect.
            1. Conditions - sufficiently clear, precise, unconditional. Ratti- implementation of the deadline must have passed. Dori- directives can only be invoked vertically against the state not individuals.
               1. This was criticised because it meant that in employment cases those that worked for private companies cannot invoke rights under a directive. CJEU held that directives are addressed to m/s hence they should not escape their liability by blaming an individual. This was mitigated by introducing a wider interpretation of the state, indirect effect and state liability.
                  1. Emanation of State - Marshall v Southampton - person may rely on a directive against the state regardless of what capacity there are acting in.
                     1. Foster V British Gas - a public body is - a body responsible by the State, for providing a service under the control of a state & has special powers beyond those normally applicable between individuals.
      2. Defranne V Sabena - private company infringed on D's rights to Art 157- held, horizontal direct effect was possible for treaty art & regulations.
2. Indirect effect -
   1. Principle created in Von Colson - requires relevant national law to be interpreted in accordance with Union law
      1. Marleasing - principle applies regardless of when the national law was enacted & national law must be interpreted as far as possible.
         1. Arco - there is no duty for the national courts to adopt a contra legem interpretation which will amount to re-writing the law ( giving the law a different meaning which was not intended.
            1. This is limited because a national provision has to be in place to interpret, but it can only be given an interpretation which is possible.
3. State liability
   1. derives authority from Art 4
      1. provides compensation to a claimant where they have suffered loss due to a m/s having breached a provision of Union law
         1. Developed in Francovich- M/s should take appropriate measures to ensure the fulfilment of obligations arising out of a treaty consequently they should make good any loss/damage caused to individuals as a result of a breach to community law.
            1. Conditions- result prescribed by the directive must grant rights to individuals, rights must be identifiable, causal link between m/s failure and loss suffered. Applies regardless of which body of state was responsible for the breach.
               1. Braisserie du Pecher - where the m/s enjoy a wide discretion 3 conditions must be satisfied, rule of law must confer rights to individuals, breach must be sufficiently serious & a dire casual link
                  1. Factors taken into account - has the m/s manifestly + gravely disregarded the limits of discretion, clarity + precision of rule breached, discretion left by the community authorities, whether infringement was intentional/ involuntary, error of law is it excusable/inexcusable, whether the position taken by the community institution contributed.
                     1. e.g. - r v HM treasuryex parte BT - incorrect implementation = defence because of good faith.
                        1. Non transportation in time = automatically sufficient serious breach. Kobler - state liability to a decision of a court of last instance must be an erroneous interpretation of community law by a court of last instance.