Implementation of a directive by a Member State

. Identify the issue: eg does question relate to non-implementation or faulty
implementation of a directive by a Member State?

2. State each basic principle in turn, explain what it means, then apply it to the
   facts and reach a reasoned conclusion.
   (a) Direct effect:
   • Define the principle.
   • Set out the criteria for the direct effect of directives, see Van Gend and Ratti.
   • Apply to the facts: does the directive in question have direct effect?
   • Explain that directives have vertical direct effect only.
   • Explain the criteria for assessing whether a body is an emanation of the
   state.
   • Apply to the facts: is the potential defendant an emanation of the state?
   • Be sure to reach a conclusion; i.e. state whether you think the directive has
   direct effect and whether the defendant is an emanation of the state.
   (b) Indirect effect
   • Define the principle.
   • Explain whether the question involves implementing or non-implementing
   legislation, and whether this distinction is any longer of much significance.
   • Apply to the facts: is it possible to interpret the national legislation referred
   to in the question as consistent with the relevant directive?
   • Again, be sure to reach a conclusion; i.e. state whether you think the
   claimant can rely on indirect effect.
   (c) State liability
   • Define the principle.
   • Set out the Francovich criteria.
   • Decide if the reformulated criteria in Factortame (No.4), Brasserie du
   Pêcheur apply.
   • Discuss whether claimant needs to prove a sufficiently serious breach.
   • If so, discuss whether there is a sufficiently serious breach based on case
   law.
   • Again, be sure to reach a conclusion; i.e. state whether you think the
   claimant can rely on state liability