recap public law European cases

Van gent en Loos

principle of direct effect

Individuals can invoke EU law in national courts

Applies to:

• EU law/ legislation

• EU principles

• EU directives
  - Clear
  - Precise
  - Uncoditional

Van Duyn

Vertical direct effect

The state had failed to implement the directive and led to individual having travel restriction

Marshall

principle of non horizontal direct effect

Directives cannot impose obligations on private parties

unless its emanation of state (but then its not horizontal anymore)

Kolpenhuys Nijmegen

No reverse indirect effect

states cannot impose directive obligations on private individuals

cannot create criminal liabilities against individuals

Foster

emanation of state

1. Provides a public service

2. state control

3. has special powers

Van Colson

Indirect effect

national courts must interpret national law with EU directive

Marleasing

Indirect effect

national courts must interpret national law as far as possible

• NO contra legem

Webb

indirect effect

Horizontal

Can influence horizontal disputes to interpret national provision with EU directives

Frankovich

state liability

Italy failed to implement the directive and negatively influenced many individuals, which resulted in state liability and compensation.

1. The directive grants rights

2. Right identifiable

3. casual link between breach and harm

Brasserie Pechet

State liability applies to all breaches of EU law

• no strict liabilityThe

• breach must be manifest and grave

• Not implementing a directive is always sufficiently serious

• IF a member state did not refer a question when they should have- this is also sufficiently serious and may apply for damages

COSTA ENEL

Eu supremacy

Requires member states to set aside conflicting national laws

Eu law does not invalidate national law = it make it inapplicable

Simmenthal

EU supremacy

does not need to wait for institutional changes for eu law to prevail

• Immediate misapplication of national law

Constitutional conflicts

• Eu law and principles prevail over national constitutions

• national procedural rules cannot make enforcement of EU rights ; a) impossible b) excessively difficult

• Forem: grant interiem relief to protect EU rights

Art 267

Any national court may refer a question or interpretation or validity of EU law to the ECH, if the answer that that question is necessary to decide the case before it.

any court or tribunal can refer a question to the ECJ

A court from which there is no appeal MUST refer a question (e.g Supreme court, court of last instance)

4 cumulative criteria if you can send a question:

1. The court or tribunal is established by law (e.g legislation, functioning, permanent)

2. Compulsory jurisdiction (hear or decide on a dispute)

3. Adversarial proceedings (parties come in front of a judge)

4. Permanent

courts may refer and cannot be limited by higher courts or the law from requesting a question

Requirements:

1. Necessary to the case (no hypothetical questions)

2. Effects preliminary ruiling

3. Courts of last instance must refer to the ECJ

Limitations:

Acte Clair: So obvious that no doubt is possible

Acte Eclair: the question has already been answered by ECJ.