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Constitutional Law Reading week 4- EC law General Reading Carig and De Burca, chapter 5
= Broad/Objective direct effect is the capacity of a provision to be invoked before a national court- see Van Gend en Loos (i.e. not necessary that the law confers "rights"- simply that it makes demands that can be enforced before courts)
= Narrow/Subjective direct effect is the capacity of a provision of EC law to confer rights on individuals which can be enforced before national courts.
= For EC provisions to be directly applicable in national courts they must contain "clarity and precision" (series of ECJ cases). They said that individuals have the right to invoke them: "right" defined as the "right to invoke" would mean there is little difference between the narrow and subjective conceptions of direct effect.
= Some European court rulings adopt the narrow version by conferring a specific right (e.g. right to be free from discrimination based on nationality) and give specific remedies). However others stick to the "right to invoke"- thus the position of the EC courts is unclear.
= The debate about broad v narrow direct effect has practical effect in 3 situations
1. No direct horizontal effect: individuals cannot prosecute each other based on unimplemented EC directives BUT in some circumstances one can invoke and rely on provisions and directives against other people.
2. Though EC courts have ruled out possibility of individuals deriving rights from international agreements, the substance of those agreements can be used to challenge the legality of a community act. (hence broad direct effect)
3. Some EC provisions impose legal obligations but it is hard to see any conferred individual right- e.g. EU Environmental Law (where enforceability is possible direct effect is broad- no actual rights)
= Broad direct effect is really just concerned with justiciability
Van Gend en Loos
= Van Gend en Loos case: a Dutch company importing chemicals from Germany were forced to pay a higher tariff than article 12 of the EEC Treaty allowed. They appealed against payment of the tariff, on the basis that individuals could derive rights from EC treaties. Against the company, Belgium argued that this was a question of constitutional law for the domestic courts to determine, while Netherlands govt argued that it was never the intentions of those who created the treaty that there would be direct effect. Similarly most international treaties did not confer rights on individuals. ECJ had 4 main arguments for rejecting these arguments and allowing the appeals of the company: (1) The EC founded a new type of treaty in which individuals were the subjects of a treaty and therefore a different order was formed so that treaty articles could have direct effect. (2) Because there was no EC article prohibiting direct effect it must be presumed that individuals have direct effect. (3) The particular article (article 12 of EEC Treaty) was well suited to direct effect. (4) Just because public enforcement exists, doesn't mean private enforcement can't also exist (private enforcement will make treaties easier to enforce). Evidence for argument one is that the EEC treaty created a common market that directly affected individuals as well as government, evidence by the reference to "peoples" in the preamble of the treaty. Thus this great project confers obligations and rights on individuals, making a treaty directly applicable to ordinary people. This = a new order of treaty and thus direct effect is needed. Evidence for argument 3 is that it was enacted without the need for national legislation to enact it under national law. The reasoning throughout the ECJ's judgement was "purposive": it looked at the treaties and the aims for the EC as a whole and made its rulings in accordance with the political and economic aims of the Community.
= Benefits of direct effect:
1. Spreads workload of enforcement between the Commission and private citizens, allowing more effective enforcement
2. Public enforcement occurs only in ECJ which can merely impose fines and declare a policy illegal. National courts might be more powerful and capable of striking down illegal legislation (NB not UK)
3. This system allows individuals to derive and enforce rights
Motivation behind direct effect was effective enforcement, uniform application and integration. However not all treaty provisions are deigned with a view to direct enforcement and can be vague: to allow national courts to apply
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