Module: EU Law
Word count: 2512
The following assignment will administer an analytical view of one of the central elements of European law; the doctrine of direct effect & assess how legal uncertainty arises for an individual who wishes to exercise a right against an individual before the national courts. This project will measure the position of the Court of Justice in its implementation of EU law on member states and how this may question the credibility and sovereignty of national law.
First and foremost, one must understand the doctrine of supremacy to fully comprehend the principle of direct effect. Developed by the European Court of Justice(ECJ), it ensures the supremacy of EU law over national law of member states. The principle stems from the case of Flaminio Costa v Enel1 which referred to Article 5 of the European Economic Community Treaty(EEC); ensuring the fulfilment of a member's community obligations arising from the Treaty and abstain from any measure which may jeopardise this. Thus, national law conflicting with EU law is automatically inapplicable, and renders any new legislation, incompatible with EU law, a similar fate; a prime example in the form of Amministrazione delle Finanze v Simmenthal Spa 2
However, Ministero delle finanze v IN.CO.GE ’903 suggest Simmenthal did not encompass that national law in such a case of conflict was non-existent, but rather that the national court was obliged to “dissapply” conflicting national law4. In layman's terms, national law will stand but in the occasion were it challenges EU law, it must be ignored.
Doctrine of Direct Effect
To define direct effects is a troublesome predicament due to its complexity and depth, however, it can be summarised as a community concept developed by the ECJ to apply to Regulations, Directives and Treaty Articles. It is the term given to the judicial enforcement of rights arising from provisions of Community law which can be upheld in favour of individuals over national authorities5. Lord Denning's remarks in the case of HP Bulmer Ltd v J Bollinger SA 6 epitomise the authority possessed in direct effects stating;
'Any rights or obligation created by the treaty(European Communities Act(1972) are to be given legal effect in England without more ado'.7
The evolution of this concept originates from the case of Van Gend 8. It surrounded the inclusion of custom duty on goods imported from Germany to the Netherlands. This was contrary to the provision of the 'freedom of movement of goods'(currently Article 30 Treaty on the Functioning of the European Union(TFEU); imposing the prohibition of custom duties. The prosecution(importer) brought proceedings to recover the custom duty
The principal matter in this case was the question of the direct effects of Article 12(now 25) which prohibited customs on imports/exports between member states. 9
Does the prohibition of custom duties confer rights to an individual that can be subsequently enforced before national courts?
Affirmative. The ECJ confirmed Article 25(ex 12), was directly effective. The court ruled the Treaty far exceeded an agreement which simply created mutual obligations. Furthermore, it intended to confer rights upon individuals which became part of their legal heritage and impose obligations for that matter10 although some may argue that it undermined the legal authority of member states.
Van Gend also established the criteria a provision must satisfy to have direct effect. The ECJ require that the provision: should be unconditional; Not susceptible to further conditions to be deemed functionable. Nor it requires any implementation