The Doctrine Of Direct Effect

That question goes unanswered in the Factortame case, but at least the beginnings of an answer to it can be found in the subsequent decisions of the Administrative Court in Thoburn and the Supreme Court in the HS2 case. Those judgments develop the idea that the 1972 Act — along with certain others — is a ‘constitutional statute’, meaning that it prevails over other legislation unless such legislation explicitly overrides the 1972 Act. This means that the efficacy conferred on EU law by that Act holds good, including in the face of legislation that is incompatible with EU law, unless such legislation expressly says otherwise. Parliament is, then, sovereign in the sense that it remains capable of overriding EU law by revoking or qualifying the priority accorded to EU law by the 1972 Act. But the courts will only take Parliament to have done that if it makes its intention crystal—that is, explicitly—clear. On this analysis, the degree to which EU law has priority over Acts of Parliament turns upon the interpretation of Acts of Parliament, and so the matter remains ultimately within Parliament’s control.

This change is perhaps most evident when compared to Van Duyn v Home Office where it was established that Directives could have vertical direct effect. It was said that the usefulness of a directive ’would be weakened if individuals were prevented from relying on it before their national courts’, and that ecluding direct effect ‘would be incompatible with the binding effect attributed to a directive by article 189. Interestingly the language used in the case relating to weakness and incompatibility, seems to imply that this ruling on direct effect was made primarily solely as a means of making sure that their legal basis and legitimacy were not undermined by the omissions of the state rather than being a means for indiviuals to act positively to affirm their own

The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal

With regards to the claim that the European Parliament is too weak (the second of Weiler's standard version claims), Moravcsik (2002; 2003) emphasises the fact that during the last twenty years, the European Parliament is the institution which have experienced the most reforms, regarding its increase of powers, compare to the Council and the Commission. The latter argument is in fact accurate because ever since the Single European Act (1986), the European Parliament gains more and more power by reforms in every signed Treaty (Moravcsik, 2003, p. 7). Despite that, however, the Parliament is still considered to be weak compared to the other institutions, as it will be analysed later in the essay.

The judgement in Van Gend en Loos has undoubtedly had a huge impact upon the European Union and the way that it functions. The European Court of Justice (ECJ) claimed that the judgement had established a “new legal order” whether this is true is debatable but it is certainly a fundamental case in EU case law. The phrase “new legal order” was first used in Van Gend en Loos, so it was hard to know if that was what it was… Discuss what legal order means etc. The principle of direct effect (or immediate applicability) enables individuals to immediately invoke a European

There are times when doing the right thing can lead to bad consequences. For example, if your family is about to be killed by a criminal and the only thing you can do to protect your family from being murdered is to kill the person who is threatening them, you would feel it necessary to commit an evil in order to prevent a greater misfortune. On the other hand, the actor in cases such as this faces a moral dilemma of having to kill someone. This is where the Doctrine of Double Effect comes into play. The Doctrine of Double Effect (DDE) is a principal which aims to provide specific guidelines for determining when it is morally permissible to perform an action in the pursuit of a positive outcome with the full knowledge that the action will also bring about an evil consequence. (Solomon, 2014). Although the Doctrine of Double Effect is viewed as a positive theory by man, it is unjust in that it gives people a justification to commit heinous acts if they merely claim that they intended some sort of good outcome to result from their actions.

Enforcing the European Union legal system is diverse and done on multiple platforms; through not only actions taken against member states for breach of their obligations, but also, for example, through the use of direct effect1. Article 267 TFEU; an organism devised to practice private enforcement of EU law before national courts, has been critical to ensure uniform interpretation and application of EU law in member states. References for preliminary rulings occur when the national courts are presented with a question of EU law due to uncertainty of the provision. The national court will therefore ‘make a reference to the Court of Justice (COJ) to obtain a preliminary ruling on any point of EU law relevant to the proceedings’2. In

The principle of supremacy of European Union (EU) law has been established over the course of more than five decades. It is a principle that was established by the European Court of Justice (ECJ) in 1964, and it has continued to have a rich history in the jurisprudence of the ECJ and national constitutional courts. As the ECJ and national courts attempt to define their respective realms of influence, a bright debate has sparked regarding constitutional pluralism. Moreover, the recent codification of primacy in the Constitutional Treaty has led to a new debate on the scope of the supremacy of EU law.

However again this higher status can be seen as limited as is only assumed from a written obligation. Therefore to asses if supremacy is not the challenge to member state sovereignty that is appears to be, a close analysis of how the CJEU has dealt with the issue of supremacy of EU law in case law is needed, firstly looking at Van Gend en Loos which stated that the ‘EU was a new legal order permanently limiting the sovereign rights of the Member State’. This customs case helped establish the ‘relationships between the European Union and international law…to grantee that the rules of one system are complied with in another legal order ’ showing in practise that if on a national level EU law is breached CJEU will take supremacy and comply with ‘the integrity of the EU legal order’ . Further evaluation of the limits of the supremacy can be seen in the case of Costa V ENEL where ‘Italy had claimed that the EU treaties…had been transposed into the Italian legal order by national legislation, which could therefore be derogated by subsequent national legislation. The court rejected this presumption of the supremacy of national law by insisting on the supremacy of EU law’ . This case holds significance as it ‘is well-known since Costa V ENEL the court has affirmed the supremacy of Community law over national law’ strongly suggesting the continued existence of EU supremacy is not frequently

Nonetheless, the situation is slightly different when it comes to directives. Article 288 states that a directive must be implemented into national law. Even if it does not fulfil the second criteria of the test in Van Gend en Loos about implemented measures, in the latter case of Van Duyn v Home Office it was held that directives can be directly effective provided that they are clear and unconditional. There are conditions, however, in the case of Ratti , it was held that for a directive to have direct effect on the member state the implementation deadline must have passed. In addition, in the case of Marshall , the court decided that directives can have a vertical direct effect but not a horizontal direct effect. This decision was upheld in Faccini Dori v Recreb Srl . This protects the individuals from being sued for matters that the State is responsible for.

The landmark decision involving direct effect occurred in 1963 in a case called Van Gend en Loos. In the case, a Dutch transport firm brought a complaint against Dutch customs for increasing the duty on a product imported from Germany. The firm argued that the Dutch authorities had breached a clause in the original EU treaty, which prohibited member states from introducing new duties in the common market. The Court agreed with the firm and declared that any “unconditionally worded treaty provision being self sufficient and legally complete” did not require

The wording of Article 288 of the Treaty on the Functioning of the European Union (hereafter, the TFEU) is crystal-clear; Directives are addressed to Member States and would have to first be transposed into national law within the given deadline. However, where the Directive in question can fulfil the conditions in Van Gend and have expired , they may have a direct effect.

The European Union (EU) was established in order to prevent the horrors of modern warfare, experienced by most of Europe during the World Wars of the 20th century, from ever ensuing again, by aiming to create an environment of trust with the countries of Europe cooperating in areas such as commerce, research and trade (Adams, 2001). The EU has evolved into an economic, trade, political and monetary alliance between twenty-eight European Member States. While not all Member States are in monetary union (i.e. share the currency of the euro), those that are form the ‘Euro-zone’ (Dinan, 2006). The EU can pass a number of types of legislation, with a regulation, act, or law, being the most powerful. Its ‘tricameral’ (European Union, 2007)

Member States’ positive obligation to take appropriate measures in accordance with EU Treaties and the Charter is set out under Article 4(3) TEU. Any derogation from the Union’s Law will not be justified and will be deemed inconsistent with the Treaty, unless the Treaty confers such power to Member States expressly. The Directive in concern expressly allows derogation for Member States to decide on when situations will be deemed permissible. In some occasions, EU Treaty confers upon Member States power to act unilaterally, however the discretion is limited. It can only be conferred upon expressly by Article 4 TEU. Moreover, Member States are

5. The article is helpful for my research as it discusses the EU in a different light and tries to study its decisions based theory and non-theory terms. 6. The limitation set by this article is that it concentrate mostly on the political aspect of the EU and in relation to policy making and does not explain theory in relation to other sectors like economy and defense. 7. In conclusion, it explains how EU is abandoning the old school theories of institutionalism in favor of a more generic model and believes this can be done in the EU as its institutionalized system provides fertile ground for development. 8. This article is not a foundation of my research but a rather important ideology in understanding EU institutions and actors.