Probleem 6
Bronnen:
- Schutze – An Introduction to European Union Law – Chapter 5 & 6
- Van Gend & Loos case
- Costa/ENEL case
- Simmenthal II case
- Ursula Becker case
- Marshall I case
- Kolpinghuis case
- Marleasing case
- Faccini Dori case
1. What is direct effect of EU law?
Monism = states make international law part of their domestic legal order.
Dualism = states consider international law as separate from domestic law. International law has to be transposed into
domestic law.
Direct applicability and direct effect
Direct applicability = the internal effect of a European norm within national legal orders
Direct effect = the enforceable effect of such a norm in a specific case
The Union was entitled to adopt legal acts that were to be directly applicable in all Member States (art. 288(2) TFEU).
From the beginning, the Treaties also established a constitutional mechanism that faced the direct application of
European law by the national court (art. 267 TFEU).
The European Court denied any dualist leanings in Van Gend & Loos case. The Court found that the European
legal order was a new legal order. The EU Treaty is more than an agreement which merely creates mutual
obligations between the contracting States. This view is confirmed by the preamble to the Treaty which refers to
the governments and the peoples. The nations of the States brought together in the Union are called upon to
cooperate in the functioning of this Union through the intermediary of the EP and the Committee. States have
acknowledged that European Law has an authority which can be invoked by their nationals before the Court of
Justice and tribunals. Thus, the Union constitutes a new legal order of international law for the benefit of which
the States have limited their sovereign rights. Independently of the legislation of Member States, European law
therefore imposes obligations and confers rights (p. 487 of Case Law).
So unlike ordinary international law, all EU law is directly applicable law, and the EU could therefore itself determine the
effect and nature of EU law within the national legal orders. Direct effect means that a norm is directly enforceable; it
needs no further realization by the legislature. But can be directly applied by the executive or the courts.
Direct effect of primary law
The EU Treaties are framework treaties. They need to be precise and unconditional to have direct effect.
In the Van Gend & Loos case there was a conflict about the internal market. The Union was to create a customs
union between the Member States. Within a customs union, goods can freely move without any tariffs. The Dutch
government argued that an individual could not enforce an international treaty against its own government in a
national court (dualism). The Commission countered that the effects of the provisions of the Treaty on the
national law cannot be determined by the actual national law of each of them but by the Treaty itself. Since ex-
art. 12 EEC was clear and complete, it was a rule of law capable of being effectively applied by the national court.
The Court ruled that art. 12 EEC contains a clear and unconditional prohibition which is a negative obligation.
Because of this, the obligation has direct effect under national law, and does not need any legislative intervention
(p. 487 Case law).
Thus, wherever the Treaties contain a prohibition that is clear and unconditional, it will have direct effect. Being an
unconditional prohibition requires two things:
1. The European provision had to be an automatic prohibition: it should not depend on subsequent positive legislation by the
EU.
2. The prohibition should ideally be absolute: not qualified by any reservation on the part of the States.
To summarize, the Van Gend & Loos case mirrored three criteria of direct effect:
1) A provision had to be clear.
Bronnen:
- Schutze – An Introduction to European Union Law – Chapter 5 & 6
- Van Gend & Loos case
- Costa/ENEL case
- Simmenthal II case
- Ursula Becker case
- Marshall I case
- Kolpinghuis case
- Marleasing case
- Faccini Dori case
1. What is direct effect of EU law?
Monism = states make international law part of their domestic legal order.
Dualism = states consider international law as separate from domestic law. International law has to be transposed into
domestic law.
Direct applicability and direct effect
Direct applicability = the internal effect of a European norm within national legal orders
Direct effect = the enforceable effect of such a norm in a specific case
The Union was entitled to adopt legal acts that were to be directly applicable in all Member States (art. 288(2) TFEU).
From the beginning, the Treaties also established a constitutional mechanism that faced the direct application of
European law by the national court (art. 267 TFEU).
The European Court denied any dualist leanings in Van Gend & Loos case. The Court found that the European
legal order was a new legal order. The EU Treaty is more than an agreement which merely creates mutual
obligations between the contracting States. This view is confirmed by the preamble to the Treaty which refers to
the governments and the peoples. The nations of the States brought together in the Union are called upon to
cooperate in the functioning of this Union through the intermediary of the EP and the Committee. States have
acknowledged that European Law has an authority which can be invoked by their nationals before the Court of
Justice and tribunals. Thus, the Union constitutes a new legal order of international law for the benefit of which
the States have limited their sovereign rights. Independently of the legislation of Member States, European law
therefore imposes obligations and confers rights (p. 487 of Case Law).
So unlike ordinary international law, all EU law is directly applicable law, and the EU could therefore itself determine the
effect and nature of EU law within the national legal orders. Direct effect means that a norm is directly enforceable; it
needs no further realization by the legislature. But can be directly applied by the executive or the courts.
Direct effect of primary law
The EU Treaties are framework treaties. They need to be precise and unconditional to have direct effect.
In the Van Gend & Loos case there was a conflict about the internal market. The Union was to create a customs
union between the Member States. Within a customs union, goods can freely move without any tariffs. The Dutch
government argued that an individual could not enforce an international treaty against its own government in a
national court (dualism). The Commission countered that the effects of the provisions of the Treaty on the
national law cannot be determined by the actual national law of each of them but by the Treaty itself. Since ex-
art. 12 EEC was clear and complete, it was a rule of law capable of being effectively applied by the national court.
The Court ruled that art. 12 EEC contains a clear and unconditional prohibition which is a negative obligation.
Because of this, the obligation has direct effect under national law, and does not need any legislative intervention
(p. 487 Case law).
Thus, wherever the Treaties contain a prohibition that is clear and unconditional, it will have direct effect. Being an
unconditional prohibition requires two things:
1. The European provision had to be an automatic prohibition: it should not depend on subsequent positive legislation by the
EU.
2. The prohibition should ideally be absolute: not qualified by any reservation on the part of the States.
To summarize, the Van Gend & Loos case mirrored three criteria of direct effect:
1) A provision had to be clear.
