Question 3

With reference to the doctrine of supremacy, explain the reasons for and logic of
the doctrine of direct effect of EU law.
 The concept of direct effect is not defined in instruments of EU like in its

treaties and the likewise but instead the authoritative judgments of the European

Court of Justice (ECJ) tender the enforcement of direct effect of EU in an inclining

fashion. Thus, in the light of the very nature of direct effect doctrine, all respective

sources of EU Law comprising of Treaty Articles, Directives, Regulations and the

similar subject to the condition that such sources of EU Law are sufficiently clear,

precise and unconditional allowing for invocation of these instruments directly in

domestic/national courts by individuals without having to resort to the jurisdiction

of ECJ.

The first starting point that grounded the very concept of direct effect was in

the landmark judgment of Van Gend en Loos1 where higher tariff rate imposed on

imports by a Dutch company led to breach of Article 30 TFEU2, whereupon it was

duly acknowledged that the EU Treaty Article enabled for the direct enforcement

and implementation of EU law instruments through national courts instead binding

these internal courts to sufficiently adhere to the principle of direct effect.

Pertaining to this particular statistic it is amply clear that member states having

signed up to the European Union have a limited sovereignty when it comes to

choosing between domestic law and EU Law in the course of which EU Law shall

1
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR 1.
2
Treaty on the functioning of the European Union 2009, art 30 .
supersede. In that respect it is now well-entrenched that direct effect is not

dependent on any legislative measure on part of the member state,, thereby shall

operate in entirety on simply fulfilling the foundational course of pre-requisites as

aforementioned. A member state’s sovereignty upon becoming a signatory of the

European Union is limited and held subject to the jurisdictional effect of the

principles pertaining to direct effect. Even where the member states are permitted

to exercise reasonable discretion in regards to derogating from any EU measure

that shall not declare or even imply that such EU measures would cease to have

direct effect upon being subjected to derogation or any other exception in due

course. As observed in Van Duyn3 it was asserted that despite the exception laid in

Article 45(3) on free movement of workers with due reference to grounds of public

policy, public security and public health did not infer a valid reasoning or

justification on Article 45 ceasing to have direct effect4. It is hereby repeatedly

decreed that EU measures for instance Treaty Articles shall be binding on meeting

the general criteria composed of having the traits of being sufficiently clear,

precise and unconditional that is well defined and narrated on numerous occasions.

3
Case 41/74 van Duyn v Home Office [1974] ECR I-337.
4
Treaty on the functioning of the European Union 2009, art 45.
 Addressing the theme of instant essay focusing on supremacy of EU Law

allotting it a viable characteristic of direct effect, the extent up to which domestic

courts are designated to play their part in this regard is clear in a conceiving

manner. National courts may take necessary course of action in redressing the

deficiency of national legislation being un-cordial and incompliant with EU Law

and the approach that courts shall take as devised in Reyners5 under the principle

is to employ direct effect and compensate for the member state’s failure in

adopting the prescribed principle. It is also material to take into account the notion

of EU instruments having vertical and horizontal direct effect. Vertical direct effect

is directed to claim against the state or an emanation of the state in a public course

whilst horizontal direct effect refers to individuals moving their respective claims

against each other in private capacity and we may cite a sound reference of

Deferene v Sabena6 to support this factor, hence that shows how broad of an

approach and scope the doctrine of direct effect possesses by the virtue of

supremacy of EU Law inclusive of the fact that member states’ national legislation

shall be in strict accordance with the same. The similar position on directives a

major category EU legislative framework, it is determined that such provisions

may only be invoked vertically and not horizontally since only the States and not

5
Reyners v Belgium (1974) Case 2/74
6
Case 43/75, Defrenne v Sabena [1976] ECR 455
the individuals are to blame for non-conformity (Marshall v Southampton)7 with

the principle of direct effect contravening the primary obligation to ascribe

supremacy to the EU Legislative framework. While we assert this, we may also

keep account of the fact that vertical direct effect of directives is extensive as

observed in Werner Mangold8 and the court gave a clear lead towards effective

implementation of directives strictly within the stipulated timeframe and to achieve

this cause national courts are directed to be vigilant and pro-active to even set aside

the national legislation that contradicts with the relevant EU Law measure. In this

respect it is also pertinent to mention that directive just like other EU Law sources

shall be clear, precise, unconditional and the stipulated time period for its

implementation must have lapsed and once the provided timeframe lapses or

expires, the same directive shall operate to have direct effect holding the member

state in breach (Ratti)9. Therefore, the well-established stance of EU Law

supremacy succinctly defines the whole concept of direct effect through plainly

effective policy measures.

Furthermore, to shed more light on direct effect in pursuance with the

supremacy of EU Law it is noteworthy to recognize that there is no such specific

7
Case 152/84 Marshall v Southampton and South West Hampshire AHA [1986] ECR 723
8
Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-7181
9
Case 148/78 Pubblico Ministero v Ratti[1979] ECR I-629
definition or explanation of supremacy in treaty articles and the likewise but

instead in the Declaration attached to the Treaty of Lisbon10. EU institutions have

made clear of this fact repeatedly for instance in June 2007, the Council Legal

Service it was firmly opined that EU Law is supreme in all respects in

consideration of the binding ratio of cases judged under the jurisdiction of the

esteemed ECJ. Ever since the cornerstone case of Costa v ENEL11 there is no

express mention of primacy of Union Law in the treaty but the existing deal of case

laws and prescribed principles firmly ground the supremacy of EU Law with no

repercussions and anomalies in due regards. There lies no reasoning or pre-position

that may allow member states to override or eradicate the supreme nature of

Community Law. The ratios of Van Gend en Loos and Costa have satisfactorily

concluded that supremacy of EU Law cannot be compromised under any condition

as long as a member state remains a signatory of the Community.

In continuance of this descriptive interpretation, we may also render it

worthwhile to cite the reference of case Simmenthal12 where it was reasoned in an

over-whelming fashion that even courts of first instance/lower courts are under a

duty to repeal that entire proportion of national legislation determined to be in

10
Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the
European Community [2007], OJ C306/1.
11
Case 6/64 Costa v ENEL [1964] ECR 585
12
Case 106/77 SimmenthalSpA (No 2) [1978] ECR 629
breach of Community Law. Horizon of supremacy of EU law is broad to the extent

that even administrative agencies/forums dealing with national affairs such as

national social insurance scheme, an instance of this in particular was witnessed in

the case Larsy v INASTI13, thus in this coalition with the outright nature of EU

Law’s supremacy, the feature of direct effect is absolute and irreconcilable when it

comes to repealing the contradictory national legislation either in part or as a whole

whatever be in the necessary interest. Even fascinating is the elementary fact that

those Union Law rights that are not entirely definite and are putative in nature are

also liable to be reconciled by the complementing national law and whatever part

of domestic legislation impedes the availability of a potential Union Law right or

entitlement is liable to be set aside or terminated. A truly essential mark of

supremacy was witnessed in the historic case of Factortame14, under due

consideration was the UK statute called Merchant Shipping Act that was found to

be in contravention with a number of EC treaty articles, the claimant Spanish

fishermen who were restricted from fishing in the British waters were granted

interim relief in the form of an injunction against the conflicting statute by the

House of Lords even though no national court could pass an injunction directly

against the crown that involved suspension of the Act of Parliament. But for the

13
Case C-118/00 Larsy v INASTI [2001] ECR I-5063
14
Case C-213/89 Factortame [1990] ECR I-2433
sake of serving all parameters of justice it had to assured that the claimants’ union

right, the English rule had to be set aside.

Moreover, it is integral to pay attention how member states regulate the

principle of supremacy from their own perspective. Pertaining to that, there are

relevant approaches to tend to the principle of supremacy as some states adopt a

monist approach like France and Italy where there is no need to separately

incorporate or transpose international law into domestic law. On the other hand

there is a dualist approach adopted by countries like the United Kingdom, Poland,

Ireland as in these jurisdictions international law in particular the Union Law has to

be incorporated through enacting a domestic statute firsthand and then the relevant

Union laws may be incurred to have effect and be operational. The UK at first

imposed a somewhat trivial mechanism in aligning direct effect to the Union Law

but with time as more case laws emerged to solidify the supremacy of EU Law the

UK courts also undertook to ensure adherence to the core standards of Union Law,

Factortame is a landmark judgment of the House of Lords/UKSC in this regard.

With the binding nature of direct effect as a primal tenet of Community Law

supremacy, there is also a form of liability called state liability directed towards a

member state that commits a breach of Union law by failing to implement a Union

measure as it was prescribed to be. Aggrieved claimants reserve the right to resort

to their domestic courts instead of directly enforcing their rights in the ECJ. The
availability of remedies does not extend to a whole list or set of remedies/relief but

instead the remedies are offered to the disposal are the same as those reserved in

the national legislative scheme of the respective member state. However the Union

law scheme does designate the standard necessary for disposing the available

remedies as devised in Von Colson15 the available remedies against the state

breach should be proportionate, adequate and should be deterrent and effective so

as to serve the necessary interests of justice. Similarly in Johnston v RUC16, the

claimant woman was acknowledged under the Equal treatment directive to have

her case fairly and effectively adjudicated on the subject of discrimination on the

ground of gender. Francovich, Bonifaci v Italy17 also cements the narrative of

supremacy and direct effect therein strictly holding the state in breach to be

accountable for its failure.

In our conclusion, we may submit with sheer confidence and trust that the

Union Law supremacy is absolute and definite and shall not be liable to be

alternated or abrogated and direct effect as explained above is a central attribute of

the EU supremacy that is well entrenched and experienced to be evolving in a

defining manner.

15
Case 14/38 Von Colson and Kamann v Land Nordreihn-Westfalen (1984) ECR 1891
16
Johnston v Chief Constable of the Royal Ulster Constabulary (1986) Case 222/84
17
Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357
 BIBLIOGRAPHY

Cases:-

Case 106/77 SimmenthalSpA (No 2) [1978] ECR 629

Case 14/38 Von Colson and Kamann v Land Nordreihn-Westfalen (1984) ECR

1891

Case 148/78 Pubblico Ministero v Ratti[1979] ECR I-629

Case 152/84 Marshall v Southampton and South West Hampshire AHA [1986]

ECR 723
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963)

ECR 1

Case 41/74 van Duyn v Home Office [1974] ECR I-337

Case 43/75, Defrenne v Sabena [1976] ECR 455

Case 6/64 Costa v ENEL [1964] ECR 585

Case C-118/00 Larsy v INASTI [2001] ECR I-5063

Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-7181

Case C-213/89 Factortame [1990] ECR I-2433

Francovich and Bonifaci v Italy (cases 6/90 and 9/90) [1991] ECR I-5357

Johnston v Chief Constable of the Royal Ulster Constabulary (1986) Case 222/84

Reyners v Belgium (1974) Case 2/74

Legislation:

Treaty of Lisbon amending the Treaty on European Union and the Treaty

Establishing the European Community [2007]

Treaty on the Functioning of the European Union 2009