Direct e ect

The European Court of Justice has established a set of guidelines for

the uniform application of EU law throughout the European Union.
These rules are founded on previous cases. Important is the concept of
direct e ect. It implies that, under certain conditions, European Union
citizens may rely on and enforce EU law in their native countries.

Supreme Court Determinations In this context, the Van gnd en Loos

case is relevant because it illustrates how the court acknowledged a
new legal order that would bene t individuals in member states as a
consequence of the doctrine's in uence. So, for instance, The Van
Gend en Loos case is signi cant because it established the three
prerequisites for the direct e ect to take place. The rule must be clear,
unconditional, and not require additional legislative action. In the Alfons
Lutticke case, the fourth criterion, that it must establish a negative
prohibition as opposed to a positive obligation, was eventually
discarded as well. It was emphasised how crucial it is that no additional
legislative measures be passed. Defrenne v. Sabena is a case in point.

Defrenne v. Sabena and Van Gend en Loos serve as instructive

examples of the direct e ect of treaty articles. In the Van Gend en Loos
decision, the court made it clear that a treaty provision may have both
vertical and horizontal direct e ects. The guidelines for how one form of
Union Secondary Legislation is related to the legislation of particular
Member States are given forth in Article 288 of the Treaty on the
Functioning of the European Union. In this situation, rules have direct
e ect. When referring to member states, "directly applicable" signi es
that the regulations are incorporated into national law and that citizens
in those states can e ectively defend their rights in their own national
tribunals. The Van Gend En Loos decision does, however, state that in
order for the theory of direct e ect to function within the regulations, it
must meet certain requirements. A excellent illustration of the dilemma
is the Commission v UK case.

Case of overseas Fruit Company v. Produktschap demonstrated that

GATT rules can have direct e ects on international agreements. The
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 courts did, however, state in the case of Germany v Council that the
GATT article may take primacy over the EC provision in certain
circumstances. Article 288 makes it crystal clear that the decisions of
the European Court of Justice are binding and must be respected. As
evidenced by the case Grad v. Finanzamt, the Court of Justice has
made it clear that its rulings can have direct e ect.

The nal factor to consider is the indirect e ects that directives may
have. In order for its implementation to be e ective, the member state
must frequently enact an additional legislative measure within the time
limit. As stated in Article 288 of the Treaty on the Functioning of the
European Union (TFEU), the Member State to which the instruction is
issued must comply with it in order for the objective to be achieved.
Because it requires additional legislative action, the direct e ect will not
be felt until after the time limit has expired. Van Duyn v. Home O ce
was a landmark case in this eld because it established that the state
could not use malfeasance to violate the rights of individuals. Since the
court ruled in Pubblico Ministero v. Ratti that the member states'
inability to implement the directive within the time limit violated the
rights, the directive needed to have a vertical direct e ect after the time
limit expired. In Marshall v. Southampton and South West Hampshire
AHA, the same sentiments were expressed.

Advocate General's Opinion in Faccini Dori v. Recreb was harsh on this

point, stating that directives should have horizontal direct e ect.
However, the courts have adhered to the original principle, which states
that directives can only have a vertical direct e ect. In the case Foster
v. British Gas, the court clari ed the concept of a state after it became
clear that numerous allegations were being made that the directive was
not being followed. It stated that the court was required to employ
speci c principles when determining what an emanation of the state
was, thereby enhancing the direct e ect. The rst criterion is that the
organisation must operate for the public good, adhere to state law, be
supervised by the state, and possess exclusive authority. In the case of
Inter Environment Wallonie, the court determined that a member state
could not do anything that would imperil its ability to achieve the
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directive's desired outcomes, as doing so would contravene the
directive's time limit.

It could be argued that the citizens of member states have become

increasingly reliant on the concept of direct e ect to ensure that their
rights are upheld and enforced by domestic courts.

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