DIRECT EFFECT

Direct effect is one of THREE ways in which individuals can enforce

eu rights presc. By eu legislation against a national court. Two types:
-

Vertical: legislation enforced rights against the state, or an

emanation of the state.

Horizontal: leg enforced before national court against private

individuals.

In order to see whether direct effect is applicable, it is important to

see whether:
1. The law in question is capable of being directly effective.
(Treaties, regulations, directives)
2. The capable law must meet the criteria
3. Just directives must prove the defendant is a state body or
emanation of the state.
These will each be looked at respectively.

CAPABILITY:
Treaty articles are primary legislation without discretion they
are binding. They are both vertically and horizontal
directly effective.
-

Van gend en loos (VERTICAL)

art 30 TFEU prohibiting customs duties dutch govt
charged german imports so brought charges being
directly effective.

Defrenne (HORIZONTAL)
Lady brought action against Belgian airline (private
body) for discrimination, by art 157 TFEU concerning
equal pay.

Regulations like treaty articles take effect immediately

without further implementation, so they are both vertically
and horizontally directly effective.
-

Leonesio (VERTICAL)
Govt refused to pay cash, for EU regulations trying to
reduce milk production. Claimant slaughtered 5 of his
dairy cows and was owed compensation for it which

govt refused to do. He was able to rely on regulations to

receive compensation.
-

Antonio (HORIZONTAL)

Directives on the other hand, unlike treaties or regulations,

are not binding on the result they produce/outcome. They
therefore offer member states discretion on how theyre
implemented, usually 3years for implementation! Therefore,
they are ONLY directly effective VERTICALLY (can only be
used against state body/emanation of the state). If there was
no direct effect of directives, MS would take advantage of their
own failings in implementing directives & MS might become
onerous of private individuals that abide by current standing
national law having no say in the whether laws shd b
implemented/ how MS implement the laws.

Van Duyn
If the above stated was not used, this would make
directives useless, and reduce their effectiveness.

Marshall v Southampton
Establishes that directives can only be used vertically,
and not horizontally.

CRITERIA
REGULATIONS + TREATY ARTICLES same criteria is used
for both as they offer MS no discretion just straight
away implemented.
If the regulation or treaty article in question is capable of
being directly effective, we must see that it meats a certain
criteria to be utilized (VAN GEND CRITERIA) the reg. or treaty
art. Must be:
-

CLEAR
across?)

(what points the law trying to get

PRECISE

(language precise)

UNCONDITIONAL (law must not be conditioned)

As DIRECTIVES require exercise of discretion for

implementation, two criteria must be satisfied.
-

VAN GEND CRITERIA. Clear precise unconditional.

RATTI CRITERIA. The directive must have passed the

deadline for implementation. (Pubblico Ministero v
Ratti)

As aforementioned, directives onlu have verticle direct

effect, the defendant being state body or emanation
of state. Distinguishing Marshall case & cf Duke b/c, in
Duke it was private body & Marshall state body,
therefore only directly effective in the latter.

STATE BODY/ EMANATION OF STATE (ONLY FOR

DIRECTIVES!!!!!)
In order to prove the defendant (D) is a state body/ emanation of
the state criteria: FOSTER V BRITISH GAS
-

D must be under statutory duty to provide public

service. (Rolls- Royce)

D must be under state regulation. (Griffin v SW Water)

D must have Special powers. (Griffin)

* - Not ALL criteria need to be satisfied, TWO will

suffice! (NUT v St Marys)

INDIRECT EFFECT
Indirect effect is yet another way individuals can enforce EU rights.
It is an interpretive tool, used to interpret nat law in line w/ EU law,
which allows them to bring action against individuals (that failed in
direct effect) or other individuals as well. Uses purposive approach
on legislation, looking to the essence of law rather than literal
meaning. VON COLSON

Types of LEGISLATION
-

Implementing (where time to implement EU directive

has passed). HL happy to use this - PICKLESTONE

Non-implementing (where time to implement EU

directive has not yet expired.) HL reluctant in using this
DUKE case

* Marleasing: nat. courts must interpret law in light of

relevant directives as far as possible. May not always be possible
(wag mir)
LIMITATIONS!!!:
-

STATE

Where nat. leg. Conflicts with EU law (Wagner Miret)

Where direct effect would impose criminal liability.
(Accaro)
LIABILITY!!!

State liability is a principle that was created on the notion to

overcome the limitations of direct and indirect effect. It states that
where an individual has suffered a loss as a result of a member
states failure to implement EU law, they can seek compensation
from the state. There are 2 tests in determining state liability:
1. FRANCOVICH TEST: which applies where there is a failure by
the member state to implement directives. In order to
establish this 3 criteria must be met.
- Provision must have conferred rights on the individual
- Rights must have been clearly defined
- There must be causal link b/w member states failure to
implement the provision and loss suffered by the
individual.
This test aimed to fill the vacuum where direct effect was not
available but left several vacuums open as only applies to
limited cases. This then further lead to the principle of state
liability was extended with the case of Brasserie and
Factortame 3. Both cases established that state liability
extends to situation where member state has failed to amend
existing national legislation, where member state has
implemented directives wrongly and in situations where direct
effect is only the minimum guarantee.
2. The second test for state liability is the Factortame IV test
which gives the
condition that:
1. There must be an infringement of a law contrary XYZ
individuals
2. There must be a sufficiently serious breach

3. There must be a causal link b/w breach & harm suffered.

However, there then came the question of what would constitute a
serious breach and the House of Lords considered this in Factortame
IV That the breach must be manifest and grave.

STATE LIABILITY!!!!
State liability is a means to overcome the limitations of direct and
indirect effect.
-

In order to prove the government/ state is liable three

criterions are to be met.
First, Is it an infringement of a rule of law
intended to confer rights on individuals?
Second, is there a sufficiently serious
breach? Factortame
- (If no, this in itself is a breach - DILLEN COFER
CASE)
- (If it HAS been implemented but improperly, then
it is to be considered whether it is a manifest and
grave breach eg. Clarity and precision of the
breach)
Third, Was there a causal link, between the
claimant and his loss and the failure of the
state to implement the appropriate
legislation?

Francovich: damages for loss incurred as a result of a

state's failure to implement a directive. Conditions for
liability:
the directive entails the grant of rights to
individuals;
it is possible to identify the content of those
rights;
a causal link between the state's failure and the
loss.

Factortame III: damages for other kinds of breach. Set

out the conditions and the factors indicating a 'sufficiently
serious breach'.
Application of Factortame III: legislation infringing
EU law (Factortame III);
incorrect implementation of a directive (BT);
administrative breaches (Hedley Lomas);
incorrect interpretation of EU law by a national
court of last instance (Kbler).