- Consider if the right claimed is "clear, precise and unconditional" in the European legislation (Primary legislation - the Treaties; Secondary legislation - Regulations; Directives & Decisions).
- If the right arises in a Treaty Article or a Regulation - and the answer is yes. There is direct effect.
- If the right arises in a directive two further criteria must be met:-
- Consider if the date for the implementation of the directive has passed - a straightforward question. If it hasn't there can be no direct effect.
- If it has, then you must consider if the body being claimed against is an "emanation of the State". That term is defined in Foster v British Gas - "a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals"
- If all the criteria are met - then there can be direct effect. If not, then it will be necessary to rely upon
- Indirect Effect - the national court will try to read (interpret) the national legislation to give effect to the right. That may be possible, without doing violence to the language of the national legislation.
- Direct and Indirect Effect can be used when the body or person being sued is the body or individual who failed to give effect to the right. If neither can be used, only one option remains. The Government can be sued for "State Liability". This right first arose in the Francovich case.
- The criteria for State Liability (amended from Francovich) are
(1) It must be an infringement of a rule of law intended to confer rights on individuals
(2) There must be a "Sufficiently serious breach" In Dillenkoffer - failure to implement the directive within the deadline set out in that directive would of itself be a sufficiently serious breach. Otherwise the breach must be ‘manifest and grave’ – relevant considerations include
i. clarity and precision of the rule breached
ii. measure of discretion left by that rule to national authorities
iii. whether infringement or damage was intentional or involuntary
iv. whether any error of law excusable or not
v. possible contributory position of EC institutions
vi. adoption or retention of measures contrary to Community law
(3) There must be a causal link between the State's failure and the loss to the claimant