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direct effect - Coggle Diagram

- - - - needs to go beyond laying down general policy, but how its going to be achieved
      - Defrenne v Sabena flexibility allowed
    - - can't be dependent on discretion or judgment of a body
      - Regione Lombardia unconditional when doesn't need further measures
      - Reyners shows not that strict
    - - sabena direct discirmination was directly effective, indirect discrimination was not as further legislation required
      - Pfeiffer v Deutsche Rote Kreuz imposed unquivocal terms with precise obligation as a result to be achieved - directly effective
  - - - against the state
    - - obligations on 3rd parties
      - Viking Line trade union wants to engage in industrial action to stop Viking switch legal base - article 43 was directly effective - capable of confering rights on private undertakings
  - - - fundamental rights
        
        EU Charter of Fundamental rights
        
        legally binding in 2009
        
        AMS article 27 couldn't be invoked horizontally as not specific enough
        
        Mangold principle of non-discrimination on grounds of age, priority overnational law
        
        HM Danmark - individuals could invoke general principles of EU law to set aside conflicting provisions of national law
        
        International Trading Company German courts conceded must respect fundamental rights of EEC law
    - - directives
        
        binding result, up to national authority how to implement it
        
        Van Duyn effect would be weekened if individuals not allowed rely on it, although not every direct directly effective
        
        time limit
        
        Inter-environment wallonie no obligation to implement directive before time limit passed, although can't pass measures which compromise it
        
        Ratti Member state refused to implement properly - binding if deadline for implementation passed
        
        implement properly
        
        Marks and Spencers
        
        vertical / horizontal distinction
        
        Marshall direct effect of direct effect pleaded agains state not an individual
        
        Marshall II state broad concept - health authority
        
        confirmed in Dori
        
        lack of horizontal effect
        
        broad concept of state
        
        Foster British gas, different retirement ages, ECJ - unconditional and sufficinetly precise provisions - organise subject of authority or control of the state
        
        all bodies subject to power or control of the state includes state bodies even those not making law
        
        indirect effect
        
        obligation to interpret national law in conformity with directives
        
        Van Colson ECJ - not sufficinetly precise to guarantee specific remedy, but national courts required to interpret in light of wording and purpose of directive
        
        Marleasing unimplemented directive could influence interpretation of national law
        
        Konstantions v Adenerler - duty to interpret domestic law even where directive doesn't have direct effect
        
        Unilever Italia Spa direcive created no indivdiual rights and imposed no obligations on individuals but national rules contrary to directive are unenforceable
      - decisions
        
        binding in entirety to whome its addressed - 288
        
        Grad directly effective in suitable cases and can be be invoked before national courts
      - regulations
        
        binding in entirety and directly effective 288
        
        Munoz confer rights on individuals which national courts have duty to protect
        
        Slaughtered Cow important to implemented regulation properly
- - - - regulations binding and directly effective
    - - national court doesn't need to go to Italian constitutional court first
    - - German Constitutiona court - no list of fundamental rights and a lack of political accountability
        
        Solange 2 sufficient protection built up by case law, allowed doctrine as long as sufficient protection
        
        Maastricht german courts not willing to accept unconditional supremacy, it would policy EU institutions - scope to review EU's competence
        
        Solange criticsed doctrine as didn't have catalogue of fundamental rights
      - Lisbon Treaty likely helps against critcisms all members signed it
      - French Administration court in Semoulse couldn't apply supremacy as no jurisdiction since said exists in Nicolo
      - Italy - Granital accepted doctrine although Italian courts decided division of competence
  - - - Maher if have to provide more details for pricniples and policies minister order sufficient, if MS discretion then legislation required - acknowledged doctrine of supremacy
- - - - intended to provide rights ingringed, sufficiently serious breach, causal link
        
        sufficiently serious
        
        factors
        
        clarity and precision of rule breached, amount of discretion left too MS, intentional infringement, excusable or not , does EU have competence
        
        British telecom not serious breach due to imprecise words, the british interpretation reasonable and acted in good faith, not contrary to objective
        
        Kobler failur for court of last instance to make preliminary reference could be serious breach - in exceptional cases
        
        causation
        
        Brinkmann no causal link between breach and loss no recovery
- - - - effectiveness
        
        article 19 TEU
        
        Van Colson ECJ said the remedy at national level was not an effective deterrent (recovery of damages for discrimination)
        
        Marshall II fixed ceiling on damages not effective, might not allow full return
        
        proportionality modern approach - lawfulness of national rule with reference to aim and effect
      - equivalence
        
        can't be less favourable
        
        Edis plaintiff wrongly paid charges, 3 year time limit was allowed
        
        Levez - up to nationa lcourt to decide if principle applies, don't have to extend most favourable rules to all actions