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Direct Effect And Supremacy Revision Notes

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The Relationship between EU and National Law

1. DIRECT EFFECT EU law does not exist in a vacuum: the legal system of the EU interacts with 27 national legal systems. Early on, the Court of Justice had to elaborate on how measures of what was, at the time, EC law penetrated the legal systems of the Member States, becoming available to individuals who wanted to invoke them before their national courts.

1.1 Direct Effect: Introduction In general, its about individuals getting rights and being able to enforce those rights in national courts. Flipside: in some situations, directly effective provisions of EU law may also impose obligations on individuals. Debate in literature:

"Narrow direct effect": There is certain disagreement in the literature as to the proper definition of 'direct effect'. Some prefer a narrower definition of direct effect, according to which directly effective just means 'can be invoked before a national court by an individual' (no mention of granting a right).

"Wide direct effect": Specifically means that rights can be enforced.

1.2 Direct Effect of Treaty Provisions

1.2.1 Van Gend en Loos [1963]
Principle first established in Van Gend en Loos in relation to EC Treaty, satisfying these conditions: (1) they must be sufficiently clear and precise; (2) unconditional; and (3) their operation must not depend on further action being taken by the Community or by national authorities. The test applied in more recent judgments is simpler: the provision in question must be 'unconditional and sufficiently precise'. What the 'clear and precise' criterion boils down to is that the provision must be capable of being applied by a court using ordinary judicial techniques, without having its content further defined by the legislator. Treaty provisions are capable, in principle, of being invoked against individuals (horizontal direct effect) as well as against national or Community authorities (vertical direct effect). Whether a particular Treaty provision imposes an obligation on an individual depends on its wording.

1.3 Direct Effect of Regulations and Decisions

1.3.1 Regulations Regulations are law in each Member State as soon as they come into force (the 'direct applicability' of Art 288 TFEU), and they apply throughout the Member States as legally complete and perfect instruments where Commission v Italy says no implementation is required or, normally, even allowed). Exceptions:

Exception 1: Where Reg itself requires it , e.g. Art 21 of Tachograph reg.

* Exception 2: Impliedly permit it (Bussone 1978) They are apt, by their very nature, to have direct effect. But remember, they still have to pass the test set out in Van Gend en Loos, above. BUT: AG Warner in Galli 1975 points out that "it does not follow that every provision of every Regulation confers rights on the citizens of Member States that they can rely upon in their national courts". Some provisions in regulations may simply be too broad and general to give rise to rights (or duties) for individuals (ie, fail the Van Gend en Loos Test)

1.3.2 Decisions Grad case 1970: E Court held decision can be directly effective, reasons same as Van Duyn. But some restrictions may apply as to horizontal direct effect.

1.4 Direct Effect of Directives

1.4.1 Direct effect is not an innate quality of directives Unlike Regulations: Art 288 refrains from saying Directives having direct effect. And contrary to Regulations: In theory directives are not capable of imposing obligations on individuals (Marhsall 1) Directive imposes obligation of result "upon each Member State to which it is addressed" . If a directive has been properly implemented, there will be no need for individuals to rely on the provisions of the directive itself. Any rights individuals may be intended to enjoy pursuant to the directive will be fully guaranteed under national law. Direct effect is not, therefore, an innate quality of directives, as it is of regulations. Issue of can only arise with respect to a directive, if one or more of the Member States has failed to achieve the result that it specifies. In that legally abnormal situation, an individual may seek directly to invoke the provisions of the directive itself, in order to assert the right that he/she would have enjoyed, had the directive been properly implemented.

1.4.2 Rationale: Why allow Direct Effect of Directives?
Van Duyn v Home Office 1974: Directives can have direct effect 1) under certain conditions and 2)

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