1447192
Description
Flashcards by Tatiana Nikolaid, updated more than 1 year ago
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Created by Tatiana Nikolaid
over 9 years ago
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| Question | Answer |
| Judicially Protected Rights | Rights which the national courts must protect |
| When we identify Direct Effect? | Not only when is expressly granted by the Treaties but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals, MSs and institutions. |
| Van Duyn 'Unconditional' | The Court stated that a provision must not be necessarily unconditional in order to have direct effect. A provision shall not necessarily provide for an absolute entitlement. It could still be invoked if any condition or qualification was subject to judicial control |
| Van Duyn Free Movement of Workers | - Conditional but needs to be justified so is subject to judicial review - If not justified then violation |
| Reyners v. Belgium Freedom of establishment (Permanent activity) | a Dutch national, was prohibited from practicing as an advocate in the Belgian courts, for lack of Belgian nationality Principle on non-discrimination on grounds of nationality. |
| Reyners case - Freedom of Establishment Negative obligations | Not only negatively stated provisions could be invoked but also positive. |
| Criteria for Direct Effect Question of Justiciability | Is not important that a provision sets out some entitlements clearly for the benefit of individuals BUT that it sets out direct duties on national administrations to protect this entitlements. (Positive obligations) |
| So who was held liable in Drefrenee v. Sabena? | The State because Sabena was not bound by the regulation but the State. The State failed to take actions to protect the rights of the individuals. (you check to whom the provision imposes obligations) |
| So which are the important findings in Defrenne v. Sabena? | 1st National Courts have the obligation to protect individual rights 2nd Provision may be invoked against private entities who have the obligation to respect EU law. |
| Problems if Directives had Direct Effect. | 1) Blur the distinction between Regulations and Directives, a distinction clearly defined in Art. 288 TFEU. ( Both would have had similar legal effects) |
| Problems if Directives had Direct Effect. | 2) The Union has competence to adopt Directives and Regulations in specific areas. If there was no a distinction between Directives and Regulations (blur) it would have resulted to Union legislating in areas that the Treaty had not permitted them to do so. |
| Problems if Directives had Direct Effect. | 3) MS have discretion in implementing Directives. Thus, individuals should be able to invoke their rights from failures of the Member State to implement correctly the Directive and not from the Directive itself. (Remember Direct Effect implies that individuals may invoke their rights before national courts because the State failed to act or refrain from acting something clearly defined from a provision.) |
| Limitations of Indirect Effect. | 1st The doctrine of direct effects may not result in determining/aggravating criminal liability (Case C-168/95 Criminal Proceedings against Luciano Arcaro) 2nd Indirect Effect does not require contra legem interpretations of domestic law (Wagnet Miret) |
| Incidental effects or Triangular Situations (Definition) | A procedural rule in a directive can in certain cases be invoked in proceedings between private parties so long as the directive does not in itself impose an obligation on one of the parties |
| Case C-194/94 CIA Security | Failure to notify the Commission about technical standards. Thus, creating obligations for the State and not for the parties concerned. |
| Wells Case - Environmental Assessment | Directives can be invoked against the State even tho they create adverse repercussions on a third party. |
| Case C-443/98 Unilever Italia characteristics required of a product, including the requirements applicable to the product as regards labeling (technical standarts) | Directive 83/189 does not in any way define the substantive scope of the legal rule on the basis of which the national court must decide the case before it. It creates neither rights nor obligations for individuals. |
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