UNIVERSITY OF HERTFORDSHIRE
SCHOOL OF LAW
COURSEWORK FOR ASPECTS OF EUROPEAN LAW (2LAW0043)
16th March 2010
‘The useful effect of a directive would be weakened if individuals were prevented from relying on it before their national courts...’ Van Duyn v Home Office (Case 41/74)
Discuss the above statement in the light of the doctrine of direct effect and the later doctrines developed by the ECJ. In order to discuss the above statement, this essay is build up in three parts. The first will describe the nature of directives. The second will outline the possibilities of enforcement of directives with the help of the doctrine direct effect and discusses its limitations. The last part shows how individuals are able to overcome these limitations of direct effect for directives with the doctrines of indirect effect and state liability.
Directives belong to the secondary legislations of EU law. The purpose of directives is to reconcile the aim of a universal applicable Community law around the European Union (EU) with respecting the diversity of its Member States. Furthermore, they are meant to eliminate conflicts between a Member state’s national law and the regulations from the European Community (EC) law and should give the same legal conditions for everyone within the EU border (Borchardt, 2000).
In contrast to regulations, directives are not directly applicable; they need first to be implemented into the national law to become law. As Article 249 EC Treaty provides: “A directive shall be binding, as to the result to be achieved upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods” (Arnull et al, 2006:164). Consequently, a Member State can choose the most appropriate legislative format to transpose their obligations from the directive into national law within the given time frame (Borchardt, 2000). The European Court of Justice (ECJ) stated in Commission v Greece, that these implemented national laws should give its citizen full understanding of their rights and obligations and provide a “clear and legal situation”, which enables individuals to rely on their rights before national courts. In turn, national courts are obliged to provide the protection of these rights, given by EU law (Arnull et al, 2006:164).
In case of infringement of these rights, the person concerned can enforce them with the help of direct effect or/and the later established doctrines indirect effect and state liability.
Direct effect means that the rights, created by a provision of Community law, can be relied upon before national courts. It applies to “Treaty Articles, regulations, directives, decisions and provisions of international agreement to which the Community is a signatory” (Foster, 2008:163). The principle of direct effect was first established in Van Gend en Loos v Nederlandse Administratie der Belastingen. This case held that the Community law “not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage” (Fairhurst, 2010:282). The ECJ further agued that when it is possible for the Commission to bring a state before the court, in the case of non-fulfilment of its obligation, than why should affected individuals not be able to do this (Fairhurst, 2010). Based on this case the ECJ set up certain criteria, a provision in question has to fulfil in order to be directly effective: It should be clear and precise, unconditional, not dependent on further implementation by Member States or Community institutions. To sum up direct effect gives individuals the opportunity to enforce their rights, when a Member State has failed to comply with the requirements of Community provisions, could not provide these rights in accordance with EU law and the Commission did not act against this infringement (Foster, 2008). Consequently, the main aim...
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Commission v Greece (1996) Case C-236/95
Brasserie du Pêcheur v Germany (1993) Case C-46/93.
Defrenne v Sabena (1976) Case 43/75
Foster and Others v British Gas plc (1989) Case C-188/89.
Francovich and Bonifaci v Republic of Italy (1990) Cases C-6 & 9/90.
Harz v Deutsche Tradax GmbH (1983) Case 79/83.
Marleasing SA v La Comercial Internacionale de Alimentacion SA (1989) Case C-106/89.
Marshall v Southampton and South-West Hampshire Health Authority(1986) Case 152/84.
Pubblico Ministerio v Tullio Ratti (1978) Case 148/78.
Unilever Italia SpA v Central Food SpA (1998) Case C-443/98.
Van Duyn v Home Office (1974) Case 41/74
Van Gend en Loos v Nederlandse Administratie der Belastingen (1962) Case 26/62.
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