Direct Effect + EU Supremacy

Question 7- 2016-ZA
‘The Court in Costa v Enel (1964) and Van Gend en Loos
(1963)
emphasised that the Treaties were contractual, that they
created
obligations for the Member States and that the action taken
by them
must not be such as to derogate from or nullify the
obligations they
have undertaken under the Treaties. It is in that context
that we should
consider what the Court said in Van Gend en Loos about
the role of
individuals in enforcing EU law at the national level.’

Discuss.

This is a question on direct effect and EU supremacy. European

Union is fascinating legal institution. European Courts of Justice
have laid down some principles to enforce them and get member
states responsible. Direct effect ensures that people have the
right to enforce EU Law in their local courts and individuals can
use EU measures to bring a claim in their local courts. The
primary reason behind the European community was to make a
common market which will ensure the free trade between
member states and bring harmony. The mechanism of direct
effect provides EU an important aspect that EU Law is not
simply applied to member states, it also applies to the
individuals of those states. Direct effect is very important to
reach individuals at grassroot level. This doctrine accommodates
implementation of EU law in a uniform manner among the
whole EU community. Direct effect isn't set down in any treaty
article, instead the concept of direct effect was introduced by
CJEU in the case of Van Gend En Loos. The principle of direct
effect also reflects the supremacy of EU law. The Courts in
Costa v Enel held that member states had restricted their power
and that EU law can't be superseded by local law. This essay
question will discuss the doctrine of Direct effect and
implication of supremacy of EU over national law and how they
are important to maintain community legal order.
The doctrine of direct effect and supremacy of EU law was
produced as the result of the case of Van Gend En Loos. In this
case, “courts enforced A12EEC treaty directly, despite of the
conflict with national provision. The courts stated that
community constitutes a new legal order and it is intended that
state sovereignty should be limited and the rights available
under union law should be available to all national citizens.”
Furthermore, courts have set these requirements in order to
implement direct effect; “It must be clear and precise, the law
should be unconditional and it should not be dependent on
member state for any further action.”
However, the argument raises that by creating this effect without
the intervention of member state, it created a negative effect and
direct effect will only be applicable through negative effect
(without the intervention of member state). However, in Alfons
case, the member state had to intervene as the treaty article
required the member state to abolish a law which result in
positive effect and the direct effect was applicable. Therefore,
after this case, the three conditions for applicability of direct
effect have become lenient as; “If there is a lack of clarity
national courts can under A267 TFEU refer the matter to the
ECJ. If an article is conditional on some objective factor, the
courts will see whether such factor has been met or not. And If
there are some further measures required within a prescribed
time under a treaty by member state, after the expiry of such
time, the article will take direct effect automatically regardless
of the fact member state has enacted such measure or not.”
Moreover, in order to guarantee the implementation of direct
effect, the sources of EU law must have to have a vertical direct
effect or horizontal direct effect which shows the importance of
direct effect in EU law. The primary source is treaty articles by
which individual can bring a claim against state which is a
vertical direct effect set in (Van Gend En Loos) case and
individual can bring a claim against another individual of the
state to enforce his/her EU law rights which is a horizontal
direct effect set out in (Sabena) case. Therefore, EU law
provisions uses this doctrine to reach the grass root level in
order to ensure the rights of citizens and that reflects the
supremacy of EU law. Furthermore, the secondary sources of
EU law are Regulations and Directives. Regulations are strict
form of EU law that are directly applicable under Article 288
TFEU, as by enacting those regulations they become the
domestic law automatically and because they apply locally, they
have both horizontal direct effect and vertical direct effect.
While directives on the other hand are flexible form of EU law,
they are enacted by the commission on the member states. Since
directives require further step by member states for their
implementation, the third requirement of Van Gend is not met
and therefore direct effect cannot be given. However, taking the
flexible approach CJEU in the cases of Van Duyn, Pubblico and
Becker held that directives will get the vertical direct effect
when the time period set by the law has expired. Furthermore,
CJEU denied directives the horizontal direct effect, because of
the argument that there must be a difference between directives
and regulations (Faccini case). Therefore, it can be argued that
CJEU has made the clear efforts to ensure the community legal
order.
However, there are two alternatives where directives can have
horizontal direct effect; incidental horizontal effect (IHE) and
indirect effect. In Incidental horizontal effect both parties are
concerned and defendant is not under any obligation. It applies
as an excuse to give directives a horizontal direct effect. The
directive had given a IHE in the case of Ruiz Bernaldz.
However, there is not any practical applicability of IHE because
of its fictious nature it does give claimant any enforceable rights
and such measures would only bring ambiguity, in order to
determine the effect which should be given. Hence, it can be
said that IHE does not provide harmony in order to maintain the
community legal order. The second alternative is Indirect effect
(IE) which is generally to be known as a direct effect through
“back door” which is based on the rules of interpretation. As per
Article 4(3) TEU, “local courts are under the duty to implement
EU law, therefore local courts are required to interpret any local
law similar to the directive”. And the interpretation should be
such which could bring the original intent of the directive (Von
Coulson). “However, the national law should be interpretated in
line with EU law, ignoring the extent of interpretation allowed”
(Mar Leasing). However, the effect of such decision would
compromise parliamentary sovereignty and it could be a threat
to balance of powers which will result in lack of community
legal order. Also, there could be a conflict while applying this
indirect effect of directives because if there is no such law
locally which can be complied with or if there is a law but it
does not comply with the directive then it cannot be achieved.
In order to fill this gap and to ensure community legal order,
CJEU introduced another mechanism of state liability in the
cases of Francovich and Bonifaci, where it is stated that if the
state does not apply the directive and there is a causal link
between the loss suffered by the individual and the non-
implementation of the directive, then state would be liable for
breach of the implementation of the directive and individual will
be entitled to the compensation by the state but the states has
jurisdiction over the quantification of remedies. Furthermore,
CJEU has widened the scope of state liability in which they go
against any provision of EU law by exercising their discretion to
merely go in breach of community law, they would be liable
under this (Factortame). Hence, it can be argued that CJEU has
maintained the EU supremacy and community legal order by
extending such liability.
Moreover, the doctrine of direct effect itself shows the
supremacy of EU law. It can be seen further in these cases. “It
was held in Costa v Enel that by joining EU, states have limited
their sovereign rights and amalgamated them with EU.” In
Handle Gescell Shaft, “EU law was given supremacy over the
German constitution.” It was held in Simmenthal that national
courts should give priority to community law and even lower
courts can set aside the local law and prioritize EU law. “It was
held in Commission v France that member states should repeal
conflicting local law. Moreover, In Factortame, it was held that
all local law should be interpreted as being subject to EU law”.
The CJEU has introduced the concept of supremacy and it is
also set out in Treaty of Lisbon that Supremacy of EU exists in
compliance with the rules laid down by the CJEU. Hence, from
above mentioned cases, it is evident that EU has the supremacy
and community law prevails over the local law and it is the
important element to maintain community legal order.
In UK, there is unwritten constitution and parliament has the
supreme law-making authority which passed ECA 1972 for the
supremacy of EU Law and by doing so UK accepted the
supremacy of EU. In Thoburn v Sunderland, it was held that
ECA is a constitutional statute which cannot be impliedly repeal.
Moreover, France, Germany and Italy have a written
constitution and they have enlisted articles under their
constitutions which allows these countries to acknowledge the
supremacy of EU.
In the light of above arguments, it can be concluded that the
doctrine of direct effect ensures the EU law rights of citizens
and make the grassroot level applicability certain which is an
important component of community legal order. As S.R. Oliver
stated in an article that direct effect is a tool through which EU
Law become deep rooted in national law to make them work
under a new legal order. However, it might not be as much
effective as we think because the directives are given the vertical
direct effect only and for horizontal direct effect of directive
there are alternatives but such excuses are ambiguous for the
courts in order to determine the right method, which is to be
given. And regarding supremacy, countries have acknowledged
EU supremacy by complying with their own constitutional setup
rather than accepting EU’s provisions unconditionally and the
fact that they have retain the right to leave EU and can take their
sovereign rights back, like UK moved out through Brexit. Thus,
it could become a danger for supremacy of EU and hence for
community legal order.

Direct Effect + EU Supremacy (Shortened)

This is a question on direct effect and EU supremacy. European
Union is fascinating legal institution. European courts of Justice
have laid down some principles to enforce them and get member
states responsible. Direct effect ensures that people have the
right to enforce EU Law in their local courts and individuals can
use EU measures to bring a claim in their local courts. The
mechanism of direct effect provides EU an important aspect that
EU Law is not simply applied to member states, it also applies
to the individuals of those states. Direct effect is very important
to reach individuals at grassroot level. Direct effect isn't set
down in any treaty article, instead the concept of direct effect
was introduced by CJEU in the case of Van Gend En Loos. The
principle of direct effect also reflects the supremacy of EU law.
This essay question will discuss the doctrine of Direct effect and
implication of supremacy of EU over national law and how they
are important to maintain community legal order.
The doctrine of direct effect and supremacy of EU law was
produced as the result of the case of Van Gend En Loos. In this
case, “courts enforced A12EEC treaty directly, despite of the
conflict with national provision. The courts stated that
community constitutes a new legal order and it is intended that
state sovereignty should be limited and the rights available
under union law should be available to all national citizens.”
Furthermore, courts have set these requirements in order to
implement direct effect; “It must be clear and precise, the law
should be unconditional and it should not be dependent on
member state for any further action.”
However, the argument arises that by creating this effect without
the intervention of member state, it created a negative effect and
direct effect will only be applicable through negative effect
(without the intervention of member state). However, in Alfons
case, the member state had to intervene as the treaty article
required the member state to abolish a law which result in
positive effect and the direct effect was applicable.
Moreover, in order to guarantee the implementation of direct
effect, the sources of EU law must have to have a vertical direct
effect or horizontal direct effect which shows the importance of
direct effect in EU law. The primary source is treaty articles by
which individual can bring a claim against state which is a
vertical direct effect set in (Van Gend En Loos) case and
individual can bring a claim against another individual of the
state to enforce his/her EU law rights which is a horizontal
direct effect set out in (Sabena) case. Therefore, EU law
provisions uses this doctrine to reach the grass root level in
order to ensure the rights of citizens and that reflects the
supremacy of EU law. Furthermore, the secondary sources of
EU law are Regulations and Directives. Regulations are strict
form of EU law that are directly applicable under Article 288
TFEU, as by enacting those regulations they become the
domestic law automatically and because they apply locally, they
have both horizontal direct effect and vertical direct effect.
While directives on the other hand are flexible form of EU law,
they are enacted by the commission on the member states. Since
directives require further step by member states for their
implementation, the third requirement of Van Gend is not met
and therefore direct effect cannot be given. However, taking the
flexible approach, CJEU in the cases of Van Duyn, Pubblico
and Becker held that directives will get the vertical direct effect
when the time period set by the law has expired.
However, there are two alternatives where directives can have
horizontal direct effect; incidental horizontal effect (IHE) and
indirect effect. In IHE both parties are concerned and defendant
is not under any obligation. It applies as an excuse to give
directives a horizontal direct effect. The directive had given a
IHE in the case of Ruiz Bernaldz. However, there is not any
practical applicability of IHE because of its fictious nature it
does give claimant any enforceable rights and such measures
would only bring ambiguity, in order to determine the effect
which should be given. Hence, it can be said that IHE does not
provide harmony in order to maintain the community legal
order. The second alternative is Indirect effect (IE) which is
generally to be known as a direct effect through “back door”
which is based on the rules of interpretation. As per Article 4(3)
TEU, “local courts are under the duty to implement EU law,
therefore local courts are required to interpret any local law
similar to the directive”. “However, the national law should be
interpretated in line with EU law, ignoring the extent of
interpretation allowed” (Mar Leasing). However, the effect of
such decision would compromise parliamentary sovereignty and
it could be a threat to balance of powers which will result in lack
of community legal order. Also, there could be a conflict while
applying this indirect effect of directives because if there is no
such law locally which can be complied with or if there is a law
but it does not comply with the directive then it cannot be
achieved.
In order to fill this gap and to ensure community legal order,
CJEU introduced another mechanism of state liability in the
cases of Francovich and Bonifaci, where it is stated that if the
state does not apply the directive and there is a causal link
between the loss suffered by the individual and the non-
implementation of the directive, then state would be liable for
breach of the implementation of the directive and individual will
be entitled to the compensation by the state but the states has
jurisdiction over the quantification of remedies.
Moreover, the doctrine of direct effect itself shows the
supremacy of EU law. It can be seen further in these cases. “It
was held in Costa v Enel that by joining EU, states have limited
their sovereign rights and amalgamated them with EU.” It was
held in Simmenthal that national courts should give priority to
community law and even lower courts can set aside the local law
and prioritize EU law. “It was held in Commission v France
that member states should repeal conflicting local law.
Moreover, In Factortame, it was held that all local law should
be interpreted as being subject to EU law”. Hence, from above
mentioned cases, it is evident that EU has the supremacy and
community law prevails over the local law and it is the
important element to maintain community legal order.
In UK, there is unwritten constitution and parliament has the
supreme law-making authority which passed ECA 1972 for the
supremacy of EU Law and by doing so UK accepted the
supremacy of EU. In Thoburn v Sunderland, it was held that
ECA is a constitutional statute which cannot be impliedly repeal.
Moreover, France, Germany and Italy have a written
constitution in which they acknowledge the supremacy of EU.
In the light of above arguments, it can be concluded that the
doctrine of direct effect ensures the EU law rights of citizens
and make the grassroot level applicability certain which is an
important component of community legal order. As S.R. Oliver
stated in an article that direct effect is a tool through which EU
Law become deep rooted in national law to make them work
under a new legal order. However, it might not be as much
effective as we think because the directives are given the vertical
direct effect only and for horizontal direct effect of directive
there are alternatives but such excuses are ambiguous for the
courts in order to determine the right method, which is to be
given. And regarding supremacy, countries have acknowledged
EU supremacy by complying with their own constitutional setup
rather than accepting EU’s provisions unconditionally and the
fact that they have retain the right to leave EU and can take their
sovereign rights back, like UK moved out through Brexit. Thus,
it could become a danger for supremacy of EU and hence for
community legal order.

EU Supremacy
This is a question on EU supremacy. European Union is
fascinating legal institution. European courts of Justice have laid
down some principles to enforce them and get member states
responsible. The Courts in Costa v Enel held that member states
had restricted their power and that EU law can't be superseded
by local law. The essay below will discuss the supremacy of EU
law and its application in member states.
The supremacy of EU law has been seen in several instances of
courts decisions. The courts in the case of Costa v Enel held that
“by joining EU, states have limited their sovereign rights and
amalgamated them with EU. It was stated EU law is an
independent source of law, it cannot be overridden by domestic
legal provisions and a contrary view would undermine the
union’s character and affect its ability to achieve its objectives”.
This case shows the clear dominant position of EU law over
national law and it cannot be overridden by local law. Moreover,
whenever there is a conflict between EU law and local law, EU
law will prevail. As seen in the case of Handle Gescell Shaft,
where it was held that “EU law was given supremacy over the
German constitution in concerning human rights protection”. So,
courts gave effect to EU’s supremacy over national law. In
addition, in Simmenthal, “the abolition of a meat import levy
imposed in Italy, supposedly for inspection purposes. It was in
violation of EU law, which prohibited such taxes. The court held
that national courts should give priority to community law and
even lower courts can set aside the local law and prioritize EU
law”. Courts gave priority to community law and has the
discretion to disregard local law. Thus, these cases have
guaranteed the supremacy of EU law.
Moreover, in Commission v France, it was held “that member
states should repeal conflicting local law”. If local law is in
conflict the member state should repeal it to give supremacy to
EU law. Furthermore, In Factortame, it was held that “all local
law should be interpreted as being subject to EU law”. The
CJEU has introduced the concept of supremacy and it is also set
out in Treaty of Lisbon that Supremacy of EU exists in
compliance with the rules laid down by the CJEU. Hence, from
above mentioned cases, it is evident that EU has the supremacy
and community law prevails over the local law and it is the
important element to maintain community legal order. However,
in some instances member states tried to ignore EU law and
stick with their own constitutions. In Miller, it was stated “that
the UK should not initiate withdrawal from the EU by formal
notification to the Council of the European Union as prescribed
by Article 50 of the Treaty on European Union without an Act
of Parliament giving the government Parliament's permission to
do so”. This case challenged the supremacy of EU.
Previously the EU supremacy was intact and every member state
was bound by EU law as in UK there is unwritten constitution
and parliament has the supreme law-making authority which
passed ECA 1972 for the supremacy of EU Law and by doing so
UK accepted the supremacy of EU. In Thoburn v Sunderland, it
was held that ECA is a constitutional statute which cannot be
impliedly repeal. Moreover, UK started interpreting EU law
purposefully to give effect to its wider meanings and to
guarantee uniformity as seen in the cases of Pickstone and
Lister. However, after the Brexit UK is not bound by EU
supremacy and parliament will repeal the ECA and thus UK
won’t be bound by any EU provision like direct effect, state
liability and supremacy.
 However, the doctrine of direct effect also shows the supremacy
of EU law as S.R. Oliver stated in an article that direct effect is a
tool through which EU Law become deep rooted in national law
to make them work under a new legal order. In addition, France,
Germany and Italy have a written constitution and they have
enlisted articles under their constitutions which allows these
countries to acknowledge the supremacy of EU.
To conclude, it looks like countries have acknowledged EU
supremacy by complying with their own constitutional setup
rather than accepting EU’s provisions unconditionally and the
fact that they have retain the right to leave EU and can take their
sovereign rights back, like UK moved out through Brexit. Thus,
it could become a danger for supremacy of EU as other member
states will have the whole plot to consider if they want to exit.
And hence it could disturb the community legal order.

Direct effect
This is a question on direct effect and EU supremacy. European
Union is fascinating legal institution. European courts of Justice
have laid down some principles to enforce them and get member
states responsible. Direct effect ensures that people have the
right to enforce EU Law in their local courts and individuals can
use EU measures to bring a claim in their local courts. The
mechanism of direct effect provides EU an important aspect that
EU Law is not simply applied to member states, it also applies
to the individuals of those states. Direct effect is very important
to reach individuals at grassroot level. Direct effect isn't set
down in any treaty article, instead the concept of direct effect
was introduced by CJEU in the case of Van Gend En Loos. The
principle of direct effect also reflects the supremacy of EU law.
This essay question will discuss the doctrine of Direct effect and
implication of supremacy of EU over national law and how they
are important to maintain community legal order.
The doctrine of direct effect and supremacy of EU law was
produced as the result of the case of Van Gend En Loos. In this
case, “courts enforced A12EEC treaty directly, despite of the
conflict with national provision. The courts stated that
community constitutes a new legal order and it is intended that
state sovereignty should be limited and the rights available
under union law should be available to all national citizens.”
Furthermore, courts have set these requirements in order to
implement direct effect; “It must be clear and precise, the law
should be unconditional and it should not be dependent on
member state for any further action.”
However, the argument arises that by creating this effect without
the intervention of member state, it created a negative effect and
direct effect will only be applicable through negative effect
(without the intervention of member state). However, in Alfons
case, the member state had to intervene as the treaty article
required the member state to abolish a law which result in
positive effect and the direct effect was applicable.
Moreover, in order to guarantee the implementation of direct
effect, the sources of EU law must have to have a vertical direct
effect or horizontal direct effect which shows the importance of
direct effect in EU law. The primary source is treaty articles by
which individual can bring a claim against state which is a
vertical direct effect set in (Van Gend En Loos) case and
individual can bring a claim against another individual of the
state to enforce his/her EU law rights which is a horizontal
direct effect set out in (Sabena) case. Therefore, EU law
provisions uses this doctrine to reach the grass root level in
order to ensure the rights of citizens and that reflects the
supremacy of EU law. Furthermore, the secondary sources of
EU law are Regulations and Directives. Regulations are strict
form of EU law that are directly applicable under Article 288
TFEU, as by enacting those regulations they become the
domestic law automatically and because they apply locally, they
have both horizontal direct effect and vertical direct effect.
While directives on the other hand are flexible form of EU law,
they are enacted by the commission on the member states. Since
directives require further step by member states for their
implementation, the third requirement of Van Gend is not met
and therefore direct effect cannot be given. However, taking the
flexible approach, CJEU in the cases of Van Duyn, Pubblico
and Becker held that directives will get the vertical direct effect
when the time period set by the law has expired.
However, there are two alternatives where directives can have
horizontal direct effect; incidental horizontal effect (IHE) and
indirect effect. In IHE both parties are concerned and defendant
is not under any obligation. It applies as an excuse to give
directives a horizontal direct effect. The directive had given a
IHE in the case of Ruiz Bernaldz. However, there is not any
practical applicability of IHE because of its fictious nature it
does give claimant any enforceable rights and such measures
would only bring ambiguity, in order to determine the effect
which should be given. Hence, it can be said that IHE does not
provide harmony in order to maintain the community legal
order. The second alternative is Indirect effect (IE) which is
generally to be known as a direct effect through “back door”
which is based on the rules of interpretation. As per Article 4(3)
TEU, “local courts are under the duty to implement EU law,
therefore local courts are required to interpret any local law
similar to the directive”. “However, the national law should be
interpretated in line with EU law, ignoring the extent of
interpretation allowed” (Mar Leasing). However, the effect of
such decision would compromise parliamentary sovereignty and
it could be a threat to balance of powers which will result in lack
of community legal order. Also, there could be a conflict while
applying this indirect effect of directives because if there is no
such law locally which can be complied with or if there is a law
but it does not comply with the directive then it cannot be
achieved.
In order to fill this gap and to ensure community legal order,
CJEU introduced another mechanism of state liability in the
cases of Francovich and Bonifaci, where it is stated that if the
state does not apply the directive and there is a causal link
between the loss suffered by the individual and the non-
implementation of the directive, then state would be liable for
breach of the implementation of the directive and individual will
be entitled to the compensation by the state but the states has
jurisdiction over the quantification of remedies. Furthermore,
CJEU has widened the scope of state liability in which they go
against any provision of EU law by exercising their discretion to
merely go in breach of community law, they would be liable
under this (Factortame). Hence, it can be argued that CJEU has
maintained the EU supremacy and community legal order by
extending such liability.
In the light of above arguments, it can be concluded that the
doctrine of direct effect ensures the EU law rights of citizens
and make the grassroot level applicability certain which is an
important component of community legal order. As S.R. Oliver
stated in an article that direct effect is a tool through which EU
Law become deep rooted in national law to make them work
under a new legal order. However, it might not be as much
effective as we think because the directives are given the vertical
direct effect only and for horizontal direct effect of directive
there are alternatives but such excuses are ambiguous for the
courts in order to determine the right method, which is to be
given.

EU law and the Role of court

 Google v Spain: “the ECJ ruled that the European citizens
have a right to request that commercial search firms, such
as Google, that gather personal information for profit
should remove links to private information when asked,
provided the information is no longer relevant”. The court
held that “the fundamental right to privacy is greater than
the economic interest but in some circumstances the public
 interest in access to information should be guaranteed.
Therefore, court rejected a request to have the article
concerning personal bankruptcy removed from the web site
of the press organization”.

 Safe Harbour: “The ECJ has ruled that the safe harbour
agreement that allowed the transfer of European citizens’
data to the US is no longer valid. Because it does not
adequately protect consumers in the wake of the Snowden
revelations”.

 Opinion 1/1/13: The issue in this case was whether EU can

accede to ECHR. The Court of Justice held that “the EU
could not accede to the ECHR under the Draft Agreement.
It held the Agreement was incompatible with TEU article
6(2)”.