Enforcement At National Level at University College Cork | Flashcards & Summaries

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TESTE DEIN WISSEN

It would be incompatible with the binding effect attributed to a directive by [Article 288 TFEU] to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned.  

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TESTE DEIN WISSEN

Case 41/74 Van Duyn v Home Office EU:C:1974:133 para 12:

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TESTE DEIN WISSEN

Case 148/78 Ratti EU:C:1979:110:

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TESTE DEIN WISSEN

[21] Particularly in cases in which the [EU] authorities have by means of directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of [EU] law.

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TESTE DEIN WISSEN

where the [EU] authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect [i.e. effectiveness] of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of [EU] law.  


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TESTE DEIN WISSEN

Case 41/74 Van Duyn v Home Office EU:C:1974:133 :

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TESTE DEIN WISSEN

[23] It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.


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TESTE DEIN WISSEN

Case 148/78 Ratti EU:C:1979:110:

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TESTE DEIN WISSEN

Case 8/81 Becker EU:C:1982:7:


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TESTE DEIN WISSEN

[25] … wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State (emphasis added). 

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TESTE DEIN WISSEN

It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals (emphasis added). 

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TESTE DEIN WISSEN

Case 41/74 Van Duyn v Home Office EU:C:1974:133 para 12:

Lösung ausblenden
TESTE DEIN WISSEN

Case 148/78 Ratti EU:C:1979:110:

 

Lösung anzeigen
TESTE DEIN WISSEN

[23] It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.

 

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TESTE DEIN WISSEN

[W]herever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.

 

[An EU] provision is unconditional where it is not subject, in its implementation or effects, to the taking of any measure either by the institutions of the [EU] or by the Member States … .

 

Moreover, a provision is sufficiently precise to be relied on by an individual and applied by the court where the obligation which it imposes is set out in unequivocal terms …

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TESTE DEIN WISSEN

Case C-236/92 Difesa della Cava EU:C:1994:60 

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TESTE DEIN WISSEN

the fact that certain provisions of a directive may reserve an element of discretion to the Member States does not preclude judicial review by national courts:


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TESTE DEIN WISSEN

Case C-72/95 Kraaijeveld EU:C:1996:404. 

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TESTE DEIN WISSEN

Case C-129/96 Inter-environnement Wallonie EU:C:1997:628


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TESTE DEIN WISSEN

CJEU ruled that a Member State may not, during the period prescribed for transposition, adopt measures that may seriously compromise the attainment of the result prescribed by a directive.

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TESTE DEIN WISSEN

Case C-144/04 Mangold EU:C:2005:709,


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TESTE DEIN WISSEN

the CJEU ruled (para 78) that the national court was required to set aside ‘any provision of national law which may conflict with EU law, even where the period prescribed for transposition of that directive has not yet expired’ (emphasis added).

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TESTE DEIN WISSEN

the Treaty provision at issue [now Article 30 TFEU] contained ‘a clear and unconditional prohibition which is not a positive but a negative obligation’... 


not qualified by any reservation on the part of [Member States] which would make its implementation conditional upon a positive legislative measure enacted under national law.’  

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TESTE DEIN WISSEN

Case 26/62 Van Gend en Loos EU:C:1963:1

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Q:

It would be incompatible with the binding effect attributed to a directive by [Article 288 TFEU] to exclude, in principle, the possibility that the obligation which it imposes may be invoked by those concerned.  

A:

Case 41/74 Van Duyn v Home Office EU:C:1974:133 para 12:

Q:

Case 148/78 Ratti EU:C:1979:110:

A:

[21] Particularly in cases in which the [EU] authorities have by means of directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of [EU] law.

Q:

where the [EU] authorities have, by directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect [i.e. effectiveness] of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of [EU] law.  


A:

Case 41/74 Van Duyn v Home Office EU:C:1974:133 :

Q:

[23] It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.


A:

Case 148/78 Ratti EU:C:1979:110:

Q:

Case 8/81 Becker EU:C:1982:7:


A:

[25] … wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State (emphasis added). 

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Q:

It is necessary to examine, in every case, whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member States and individuals (emphasis added). 

A:

Case 41/74 Van Duyn v Home Office EU:C:1974:133 para 12:

Q:

Case 148/78 Ratti EU:C:1979:110:

 

A:

[23] It follows that a national court requested by a person who has complied with the provisions of a directive not to apply a national provision incompatible with the directive not incorporated into the legal order of a defaulting Member State, must uphold that request if the obligation in question is unconditional and sufficiently precise.

 

Q:

[W]herever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may be relied upon by an individual against the State where the State fails to implement the directive in national law by the end of the period prescribed or where it fails to implement the directive correctly.

 

[An EU] provision is unconditional where it is not subject, in its implementation or effects, to the taking of any measure either by the institutions of the [EU] or by the Member States … .

 

Moreover, a provision is sufficiently precise to be relied on by an individual and applied by the court where the obligation which it imposes is set out in unequivocal terms …

A:

Case C-236/92 Difesa della Cava EU:C:1994:60 

Q:

the fact that certain provisions of a directive may reserve an element of discretion to the Member States does not preclude judicial review by national courts:


A:

Case C-72/95 Kraaijeveld EU:C:1996:404. 

Q:

Case C-129/96 Inter-environnement Wallonie EU:C:1997:628


A:

CJEU ruled that a Member State may not, during the period prescribed for transposition, adopt measures that may seriously compromise the attainment of the result prescribed by a directive.

Q:

Case C-144/04 Mangold EU:C:2005:709,


A:

the CJEU ruled (para 78) that the national court was required to set aside ‘any provision of national law which may conflict with EU law, even where the period prescribed for transposition of that directive has not yet expired’ (emphasis added).

Q:

the Treaty provision at issue [now Article 30 TFEU] contained ‘a clear and unconditional prohibition which is not a positive but a negative obligation’... 


not qualified by any reservation on the part of [Member States] which would make its implementation conditional upon a positive legislative measure enacted under national law.’  

A:

Case 26/62 Van Gend en Loos EU:C:1963:1

Enforcement at National Level

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