Supremacy Of Ec Law Essay

Supremacy Of Ec Law Essay-7
Your answer should address direct effect, indirect effect, and state liability in turn, ensuring relevant analysis and evaluation as you go along.As all three doctrines were created by the Court of Justice, the case law will feature strongly, as the question itself indicates.In Van Duyn and Ratti the ECJ ruled contrary to this belief that directives were capable of vertical direct effect and the ECJ provided a functional reason and a textual reason for this in the former case.7 8 Firstly, the pressure to implement directives would be “weakened” if individuals did not possess the right to invoke their rights before national courts.

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Directives Unlike treaty articles and regulations, directives are not directly applicable but instead require implementation into national law.

The initial belief was that directives could not have direct effect because Article 288 TFEU outlined that since the result would be “binding as to the result achieved”, the choice and form of implementation would be left to each member state.

The court asserted that a treaty article must be sufficiently clear, precise and unconditional as well as lacking dependency on any implementing measure in order to allow an individual to rely upon it.

The ECJ’s assertion that a “new legal order” had been created was no overstatement.

From Van Gend to Marleasing it is possible to observe both an evolution of direct effect as well as an expansion of its coverage.

Trace the development of the principles of direct effect, indirect effect, and state liability by the Court of Justice, evaluating their significance for individual claimants.In order for a directive to be of direct effect, it was set out in Van Duyn that the directive must be sufficiently clear, precise and unconditional.9 The ECJ imposed one further condition in Ratti; the ECJ outlined that a member state’s obligation to implement only becomes absolute when the time limit for implementation expires.10 A member state’s failure to implement a directive could not be used to deny the binding effect of a directive past the expiration date and the ECJ’s argument here was one of estoppel.By the same logic that unfairness would arise from allowing a member state to sidestep the obligations of a directive 6 Ibid.Case 41/74 Van Duyn v Home Office [1974] 8 Case 148/78 Pubblico Ministero v Ratti [1979] 9 Case 41/74 Van Duyn v Home Office [1974] 10 Case 148/78 Pubblico Ministero v Ratti [1979] 7 directive loosely enough to achieve the same effect.Following Von Colson uncertainties still remained; it was still unclear as to whether indirect effect could be applied to a national law unintended to perform the function or if the rule could be applied to national provisions predating a directive.16 These issues were clarified in Marleasing which widened the scope of indirect effect.17 In this case, a conflict was found to exist between Spanish law and an unimplemented directive; the ECJ ruled in Von Colson the member state was under a duty to fulfil its EU obligations and it was therefore required that national courts must interpret national law “as far as possible” in light of the directive.The jurisdiction of the European Court of Justice encompasses: solving disputes from country to country and within an institution, individuals, companies or organization, if the European institution threatens rights.One such case, which was brought forth by an individual to the court, is the Factotame case.Additionally, the ECJ asserted that indirect effect could apply to pre-dating and post-dating national legislation.Through broadening the definition of a state body and indirect effect, the ECJ sought to rectify the potential discrimination between different individuals invoking directives and this in turn ensured all individuals were protected.Van Gend represented the first step in a long sequence of judgements by the ECJ aimed at ensuring sufficient legal protection for individual rights.2 Nonetheless, the judgement in Van Gend was not a complete job as there was still uncertainty over the capability of treaty articles having horizontal direct effect.3 Horizontal direct effect can be defined as allowing individuals to invoke provisions of EU law against other individuals within the state. 2 actions but also by increasing the ease with which individuals could invoke Treaty Articles to protect their rights through applying the conditions needed for reliance, increasingly loosely.6 The overall effect of both cases was to create and expand direct effect to allow for the protection of individual rights with regards to the provisions of treaty articles.In Defrenne, the court ruled that treaty articles could be invoked horizontally through an unequivocal decision that the prohibition of discrimination between genders applies not only to the action of public authorities, but also extended to all contracts between individuals.4 Defrenne left no doubt over the potential uses of direct effect concerning treaty articles; direct effect could now be invoked both vertically against the state and horizontally against other individuals in national courts.5 Through Defrenne, the ECJ sought to broaden the scope of direct effect not just by allowing horizontal 1 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] Ibid. Regulations Article 288 TFEU states that a regulation shall be “binding in its entirety” and of “direct applicability”.


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