direct effect and supremacy eu law essay

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The direct effect of European Union law

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SUMMARY OF:

Judgment of the Court of Justice of the European Union, Van Gend en Loos v Netherlands Inland Revenue Administration – the fundamental principle of direct effect

WHAT DOES THE JUDGMENT ESTABLISH?

In its judgment, the Court of Justice of the European Union (the Court) enshrines the direct effect of European Union (EU) law.
The judgment states that EU law not only engenders obligations for EU Member States , but also rights for individuals . Individuals may therefore take advantage of these rights and directly invoke EU law before national and European courts, independently of whether the national law test exists (that is, where there is no judicial remedy under national law).

Horizontal and vertical direct effect

There are two aspects to direct effect: a vertical aspect and a horizontal aspect.

Vertical direct effect is of consequence in relations between individuals and the country. This means that individuals can invoke a provision of EU law in relation to the state.
Horizontal direct effect is of consequence in relations between individuals. This means that an individual can invoke a provision of EU law in relation to another individual.
According to the type of act concerned, the Court has accepted either a full direct effect (i.e. a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to a vertical direct effect).

Direct effect and primary law

As far as primary law is concerned, the Court established the principle of direct effect in the Van Gend en Loos judgment. However, it laid down the condition that the obligations must be precise, clear and unconditional and that they must not call for additional measures , either national or European.
In the Becker judgment, the Court rejected direct effect where the countries have a margin of discretion, however minimal, regarding the implementation of the provision in question. In Kaefer and Procacci v French State , the Court affirmed that the provision in question was unconditional because it left no discretion to the Member States and therefore had direct effect.

Direct effect and secondary law

The principle of direct effect also relates to acts from secondary law , that is acts adopted by the EU institutions, such as regulations, directives and decisions, which are derived from the principles and objectives set out in the treaties . However, the application of direct effect depends on the type of act .

Regulations are directly applicable in the Member States, as specified in Article 288 of the Treaty on the Functioning of the European Union , and have therefore direct effect. However, in line with the general principles, this applies only under the condition that the rules are sufficiently clear, precise and relevant to the situation of the individual litigant (direct effect as clarified by the Politi v Ministero delle finanze Court judgement).
Directives are acts addressed to Member States which must be transposed into national law. However, in certain cases, the Court recognises the direct effect of directives in order to protect the rights of individuals. Therefore, the Court laid down in its Van Duyn v Home Office judgment that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise and when the Member State has not transposed the directive by the deadline. However, it can only have direct vertical effect – Member States are obliged to implement directives but directives may not be cited by a Member State against an individual (see Ratti judgment).
Decisions may have direct effect when they refer to a Member State as the addressee. The Court therefore recognises only a direct vertical effect ( Hansa Fleisch v Landrat des Kreises Schleswig-Flensburg judgment).
International agreements . In its Demirel v Stadt Schwäbisch Gmünd judgment, the Court recognised the direct effect of certain agreements in accordance with the same criteria identified in the Van Gend en Loos case.
Opinions and recommendations do not have legal binding force. Consequently, they do not have direct effect.

Along with the primacy of EU law (also known as precedence), direct effect is a fundamental principle of EU law.

MAIN DOCUMENT

Judgment of 5 February 1963, NV Algemene Transport- en Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration, C-26/62 , ECLI:EU:C:1963:1.

The Relationship between Supremacy and Direct Effect in European Law

A overview and commentary on the relationship between two fundamental principles of European law, supremacy and direct effect

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Muse, Hassen Mama, The Supremacy Doctrine, Direct, and Indirect Effects and State Liability Under EU Law (August 18, 2020). Available at SSRN: https://ssrn.com/abstract=3676199 or http://dx.doi.org/10.2139/ssrn.3676199 , 2020

European Union (EU) law or European Community (EC) law is unique international legal order. Its uniqueness depends on the effective or authoritative enforcement mechanisms of the EU law. These authoritative enforcement mechanisms are absent under ordinary public international law or international law. The effective enforcement mechanisms under European legal order have gained the efficacy due to the fact that the hierarchical supremacy that it enjoys over the national laws of the Member States. This leverage allows the EU to become not only international organization but also supranational organization at European level. European Citizens can invoke EU law in national court proceedings. National courts are expected to apply EU law while solving a dispute that arises at national level by their own initiation. Moreover, EU law has the overriding effect (supremacy) over the national laws of the Member States when the conflict occurs between the two or when the national laws of the Member States are inconsistent with the EU one. Furthermore, it has also indirect effect- that the national laws of the Member States are expected to be interpreted in the manners that confirm the purpose and text of the EU laws.

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This article explores the conception of law that underlies the CJEU’s case-law, building on Opinion 2/13 on EU accession to the ECHR as a topical example. Joxerramon Bengoetxea’s metaphor of the CJEU being a ‘Dworkinian court’ fails to explain fundamental aspects of the Court’s case-law which are incompatible with Dworkin’s theory of law. Instead, the CJEU is committed to an EU legal system which conforms to Joseph Raz’s theory of the necessary conditions for legal systems: comprehensiveness, openness, and a claim of supremacy. Within this paradigm, the supremacy claim of EU law is in need of demystification because it is inherent to any legal system. Paradoxically, while Opinion 2/13 suggests that the EU should be given special treatment in its accession to the ECHR, the Court’s underlying conception of the EU legal system is essentially mimetic of the typical characteristics of national legal systems. This mimetic nature of the EU legal system entails a dissociation between the political and the legal nature of the EU: while the EU is certainly not a state, its legal system is no different from national legal systems.

This article revisits the present and future of the direct effect principle and submits solutions for its appropriate understanding and enforcement. Once the topic has been put into context and it has been shown why direct effect is an evolving notion whose scope goes beyond the Van Gend & Loos judgement and the doctrine originating from it, the study presents five intertwined arguments. First, direct effect has two facets since, aside from a subjective-substitutive form of direct effect, there exists an objective-oppositive manifestation of direct effect, whereby a directly effective European Union (EU) provision entails the disapplication of national law, without either conferring immediately an individual right or replacing the domestic norm in governing the case at hand. Second, the article claims that the obligation to disapply is triggered always by primacy and direct effect, never by primacy alone. In fact, justifying disapplication on the basis only of the primacy principle and not on primacy and direct effect is likely to undermine the logic implied in the relationship between the EU legal order and domestic legal systems. Third, there are legitimate derogations from the obligation to immediately disapply a conflicting domestic provision with EU law endowed with direct effect in so far as they are admitted by the Court of Justice of the European Union (CJEU) on the condition that the replacement of a national provision by an EU norm may harm individual rights and/or question the national identity clause enshrined in Article 4(2) Treaty on European Union (TEU). Fourth, the test on clarity, precision and unconditionality for assessing whether an EU norm is directly effective, as it was conceived by the CJEU, is no longer a pillar in the conceptualisation and practice of direct effect. As a matter of fact, only unconditionality, in practice, proves to be the core element of direct effect. Moreover, direct effect and direct applicability are equivalent concepts since unconditionality, as the condicio sine qua non of direct effect, coincides with direct applicability. Fifth, a distinctive quality of direct effect, along with unconditionality, is the creation of an advantage resulting from the application of EU law and the subsequent disapplication of national law. This implies that an EU directly effective provision can never be only in malam partem (ie, detrimental for the individual) and thus disapplication, lacking the existence of an advantage for the individual, shall never come into play. The article concludes that the duty to refine the doctrine of direct effect must be performed, ultimately, by the CJEU. Indeed, only the CJEU can offer guidance to national authorities, since it has an interpretive monopoly on the ifs, whens and hows of direct effect. To this end, it is vital that the EU judges, by rejecting argumentative minimalism brought to its extreme, come to reassert their constitutional role and re-establish the common core of the EU system, beginning with the principles that created and shaped it.

Visnyk of the Lviv University. Series International Relations

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EU Law: Text, Cases, and Materials UK Version (7th edn)

Preface to the 7 th Edition
New to this Edition
Table of Abbreviations
Acknowledgements
Table of Cases
Table of Treaties, European Legislative Instruments And National Legislation
1. The Development of European Integration
2. Membership: Crisis, Conceptions and Challenges
3. The Institutions
4. Competence
5. Instruments and the Hierarchy of Norms
6. Legislation and Decision-Making
7. Decision-Making and New Forms of Governance
8. The Nature and Effect of EU Law: Direct Effect and Beyond
9. The Application of EU Law: Remedies in National Courts
10. The Relationship Between EU Law and National Law: Supremacy
11. EU International Relations Law
12. Human Rights in the EU
13. Enforcement Actions Against Member States
14. Preliminary Rulings
15. Review of Legality: Access
16. Review of Legality: Grounds of Review
17. Damages Actions and Money Claims
18. The Single Market
19. Free Movement of Goods: Duties, Charges, and Taxes
20. Free Movement of Goods: Quantitative Restrictions
21. Free Movement of Capital and Economic and Monetary Union
22. Free Movement of Workers
23. Freedom of Establishment and to Provide Services
24. Citizenship of the European Union
25. Equal Treatment and Non-Discrimination
26. AFSJ: EU Criminal Law
27. Competition Law: Article 101
28. Competition Law: Article 102
29. Competition Law: Mergers
30. The State and the Common Market

p. 225 8. The Nature and Effect of EU Law: Direct Effect and Beyond

Paul Craig Paul Craig Emeritus Professor of English Law, St John's College, University of Oxford
, and Gráinne de Búrca Gráinne de Búrca Florence Ellinwood Allen Professor of Law, New York University School of Law
https://doi.org/10.1093/he/9780198859840.003.0008
Published in print: 21 July 2020
Published online: September 2020

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. This chapter discusses the doctrine of direct effect. In a broad sense direct effect means that provisions of binding EU law, which are sufficiently clear, precise, and unconditional to be considered justiciable, can be invoked and relied on by individuals before national courts. The legal effect of directives is complex. They have vertical but not horizontal direct effect. The ECJ has however crafted a growing number of qualifications to the proposition that directives do not have horizontal direct effect. The result is that directives can still have ‘legal effect’ on private parties in various ways through the principle of indirect effect/harmonious interpretation; incidental effect; fundamental rights; general principles of law; and where a regulation makes reference to a directive. The UK version contains a further section analysing issues concerning direct effect in relation to the UK post-Brexit.

European Union
direct effect
horizontal direct effect
vertical direct effect
legal effect
indirect effect
EU directives

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COMMENTS

Relationship between direct effect and supremacy - Studocu
In this essay, it will be argued that direct effect and supremacy are definitely closely linked and both play fundamental roles in EU integration and ensuring that EU law is correctly enforced.
Which Doctrine has had the Bigger Impact on EU law, Direct ...
The main purpose of this essay is to analyse which doctrine has had the bigger impact on EU law: direct effect or supremacy. The essay consists of an introductory section which sets the context, three chapters and a list of sources.
The Supremacy of EU Law Over National Law - LawTeacher.net
To conclude, this essay has critically discussed the supremacy of EU law and the primacy of EU Law over National laws. It has highlighted that direct effect of EU law is now firmly established through case law such as Van Gend en Loos etc, which allows the consistent implementation of EU law provisions across all member states.
Direct Effect and SUpremacy [Finalised Essay] - Studocu
As an overview, DoS refers to the capacity of EU to take precedence over inconsistent national law whereas DDE enables EU law to be invoked directly into national courts. What is DoS? The logical and reasoning development of the DoS was founded ECJ.
The direct effect of European Union law - EUR-Lex
In its judgment, the Court of Justice of the European Union (the Court) enshrines the direct effect of European Union (EU) law. The judgment states that EU law not only engenders obligations for EU Member States, but also rights for individuals.
Doctrine of Supremacy of EU Law - LawTeacher.net
In a series of important rulings the European Court of Justice (ECJ) has developed the doctrine of supremacy of European Union (EU) over national law. According to the European Community law, where there is conflict between European law and the law of Member States, European law highly prevails.
The Relationship between Supremacy and Direct Effect in ...
A overview and commentary on the relationship between two fundamental principles of European law, supremacy and direct effect
The Principles of Supremacy - LawTeacher.net
The principle of direct effect was created by the ECJ in the revolutionary case of Van Gend en Loos. Effectively it confers direct effect on EC law provisions, provided that they fulfil the criteria of being clear, precise and unconditional.
7. Doctrines of European Union law: direct effect, supremacy ...
It starts with a discussion on the principle of direct effect and indirect effect, with reference to regulations, directives and international agreements. It then considers the doctrine of supremacy or primacy of EU law with reference to a selection of Member States and the UK.
8. The Nature and Effect of EU Law: Direct Effect and Beyond
This chapter discusses the doctrine of direct effect. In a broad sense direct effect means that provisions of binding EU law, which are sufficiently clear, precise, and unconditional to be considered justiciable, can be invoked and relied on by individuals before national courts. The legal effect of directives is complex. They have vertical but ...