Posted: May 24th, 2016
Direct Effect: [problem question]
• Explanation of the European Union Communities Act 1972 in particular s.2(1), s.2(2), s.2(4)
• Define Direct Effect = provisions of EU law which confer legally enforceable rights which individuals can enforce by suing in their national courts.
• Explain the difference between vertical and horizontal direct effect.
• Explain which sources of EU Law are capable of DE.
• Provisions of EU law are directly applicable if they become part of Member States’ law, automatically without the need for implementing legislation at national level.
• Vertical and horizontal effect should be addressed and illustrated by cases such as Van Gend en Loos  ECR 1 (Case 26/62.)
• In Van Gend en Loos  ECR 1 (Case 26/62.) the Dutch court asked the ECJ to rule on whether an individual could sue directly on this Treaty provision in a national court. This key authority decentralised enforcement of EU law by individuals in domestic courts.
• Other authorities key for explanation of the operation of direct effect involve Defrenne v Sabena Case 43/75  E.C.R. 455, Van Duyn v Home Office  Ch 358 ECJ, Marshall v Southampton AHA  ECR 723 ,
• Directives can only have vertical direct effect because if a Member State fails to implement a directive, an individual cannot be penalised for its failure.
• It is necessary to indicate that as established by key authorities such as Marshall v Southampton AHA  ECR 723 the directives can only give rise to vertical direct effect and that vertical direct effect is extended to public bodies (emanations of the State) as well as the Member States.
• Also it does not matter whether the public body is acting in the capacity of a public body for vertical effect to take effect.
• Foster v British Gas Plc.  2 AC 306 indicates what institutions will be regarded as a public body or an emanation of the state.
• Final marks will be gained by addressing the state liability as well as the principle of indirect effect and the importance of Francovich v Italy  ECR I-5357,  2 C.M.L.R. 66; Case C-14/83 Von Colson and Herz 
• It is crucial that the above legal test and principles are applied accordingly to the facts of the scenario.
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