This is an extract of our Direct Effect document, which we sell as part of our European Law Notes collection written by the top tier of Oxford students.
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Conditions (i) Initial(Van Gend en Loos) i. Clear ii. Negative iii. Unconditional iv. Not dependent in implementation by MS (ii) Qualified i. DE possible even where MS have discretion, b/c its exercise can be judicially controlled ii. The need for implementing measures isn't a bar to DE if substance of provision requires its application (iii) Current i. Intended to confer rights on individuals ii. Sufficiently clear & precise (sets out obl. in unequivocal terms) iii. Unconditional
= Leaves ECJ w/lots of room for manoeuvre Applicability
1. Treaty Articles o Van Gend en Loos- MS argued EC is an int. treaty w/states as main actors & individuals shouldn't be allowed to bypass them by directly enforcing EU law b/fnat.'l courts. ECJ: Treaty Art. have DE - 3 reasons a) Textual - Art 177 + Preamble - suggest MS acknowledged in the Treaty the authority of Comm. law which can thus be invoked by individuals b/f national courts b) Teleological - EC constitutes new legal order, creating obligations for & conferring rights on individuals + strengthened enforcement by way of dual vigilance c) Consistency - w/out DE, reception of EC law into MS wouldn't be uniform but depend on nat.constit. orders
2. Regulations(Art 288TFEU)
? Art 288 + can have HDE, if sufficiently clear, unconditional & precise
? Art 288 - binding as to the result but MS have a choice as to method and form ? fails criteria but has DE
? Justifications (a) Very common form of lawmaking - DE necessary (b) Easy for states to default - implementation, time limit etc. (c) Exclusion of DE for directives would be incompatible with Art 288 req. of binding nature
= Hartley - unsound; possible to be binding on int. level w/out individual enforcement in national courts (d) Directives are more effective if enforceable by individuals relying on them + effectiveness to EU law (e) MS shouldn't be able to rely on own failure to properly implement in refusing to recognising binding DE of directive when pleaded against them (Ratti) a. very strong - like equity: shouldn't profit from own wrong b. tends towards limiting DE to vertical situations (state/individual, not individual/individual) c. limits DE to post implementation d. requires that where implementation is to individual's detriment, DE shouldn't apply (1) Vertical DE
? Not precluded, even if application of Directive against MS will lead to adverse consequences for the individual (2) Horizontal DE (i) Initially = no HDE
- DE to be pleaded only against the state, not individuals
- Justifications a. Individuals have other avenues for securing their rights (e.g. Francovich state liability)
? effectiveness questionable - hard to show actual loss!
b. Art 288 provides binding nature of Dir. exists for each MS to which it's addressed, so it can't impose obl. on individuals or be relied upon against them
? Art 288 says no such thing - merely, MS is bound where Dir. is addressed to it
? Contrast this textual faithfulness w/ECJ's attention to effectiveness in Van Gend
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