EU Law: Lecture 2 – Direct Effect
Definitions:
Direct effect: the doctrine of direct effect allows EU law to confer rights on individuals that
can be relied upon and obligations on Member States that must be enforced
- Individuals getting rights that can be relied upon - passive role
- Member states don’t have a passive role because they have obligation that they have
to act upon.
- Member states enforce rights and individuals are then able to enjoy such rights.
Supremacy: the principle of supremacy states that EU law is supreme over domestic law
aka the Principle of Primacy
- Contradicts Parliamentary Sovereignty
- Used to back up direct effect
Brexit: “Britain’s exit” from the EU via Article 50 TEU; withdrawal from the EU as a
Member State
Constitutional Traditions:
Monist State – EG: Germany, Luxembourg, France
- EU Law – National law: EU Laws directly incorporated
Dualist State – EG: UK
- EU Law: National law passed allowing implementation of EU Law – National Law: EU
Law enforceable because national law allows for it
Defining Direct Effect:
Definition of direct effect is NOT found in any EU Treaties – developed from case law
The Court of Justice of the EU (CJEU) developed the doctrine in the case of Van Gend en
Loos
- One of the most important cases in EU law for this reason
Without the doctrine of direct effect, there would be no enforcement of EU law and no
ability to rely on the rights under the EU law
C-26/62 Van Gend en Loos [1963]:
Claimant (Van Gend) had been charged an import duty. This violated article 12 TEC (now Art 38
TFEU) – free movement of goods. Claimant was Dutch, and the Dutch authorities were the
ones charging the fee (known as an internal situation, typically EU won’t intervene). Claimant
wanted to rely on an EU right and he argued that the member state should adhere to this rule.
The Dutch court questioned whether that Article had direct application within the its own
national legal system. The European Court of justice decided that it did have direct effect.
“…the Community constitutes a new legal order of international law for the benefit of which
the states have limited their sovereign rights, albeit within limited fields, and the subjects of
which comprise not only member states but also their nationals.”
- The EU is the new system that people signed up for and must follow – this means that
states have limited their Sovereign Rights.
Enforcement of EU Law:
Enforcement is at the instigation of private parties who are seeking to invoke provisions of
EU law in their litigation
It is not just EU courts which perform a judicial role but also national courts
The Van Gend case was considered by the CJEU by the national court referring a question
of the interpretation of the treaties to the CJEU under Article 267 TFEU
Conditions for Direct Effect:
Definitions:
Direct effect: the doctrine of direct effect allows EU law to confer rights on individuals that
can be relied upon and obligations on Member States that must be enforced
- Individuals getting rights that can be relied upon - passive role
- Member states don’t have a passive role because they have obligation that they have
to act upon.
- Member states enforce rights and individuals are then able to enjoy such rights.
Supremacy: the principle of supremacy states that EU law is supreme over domestic law
aka the Principle of Primacy
- Contradicts Parliamentary Sovereignty
- Used to back up direct effect
Brexit: “Britain’s exit” from the EU via Article 50 TEU; withdrawal from the EU as a
Member State
Constitutional Traditions:
Monist State – EG: Germany, Luxembourg, France
- EU Law – National law: EU Laws directly incorporated
Dualist State – EG: UK
- EU Law: National law passed allowing implementation of EU Law – National Law: EU
Law enforceable because national law allows for it
Defining Direct Effect:
Definition of direct effect is NOT found in any EU Treaties – developed from case law
The Court of Justice of the EU (CJEU) developed the doctrine in the case of Van Gend en
Loos
- One of the most important cases in EU law for this reason
Without the doctrine of direct effect, there would be no enforcement of EU law and no
ability to rely on the rights under the EU law
C-26/62 Van Gend en Loos [1963]:
Claimant (Van Gend) had been charged an import duty. This violated article 12 TEC (now Art 38
TFEU) – free movement of goods. Claimant was Dutch, and the Dutch authorities were the
ones charging the fee (known as an internal situation, typically EU won’t intervene). Claimant
wanted to rely on an EU right and he argued that the member state should adhere to this rule.
The Dutch court questioned whether that Article had direct application within the its own
national legal system. The European Court of justice decided that it did have direct effect.
“…the Community constitutes a new legal order of international law for the benefit of which
the states have limited their sovereign rights, albeit within limited fields, and the subjects of
which comprise not only member states but also their nationals.”
- The EU is the new system that people signed up for and must follow – this means that
states have limited their Sovereign Rights.
Enforcement of EU Law:
Enforcement is at the instigation of private parties who are seeking to invoke provisions of
EU law in their litigation
It is not just EU courts which perform a judicial role but also national courts
The Van Gend case was considered by the CJEU by the national court referring a question
of the interpretation of the treaties to the CJEU under Article 267 TFEU
Conditions for Direct Effect:
