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EU Direct Effect

The document discusses the concept of Direct Effect in EU Law, which allows individuals to enforce rights created by Union Law in national courts under certain conditions. It outlines various sources of EU law, including Treaty Articles, International Agreements, Regulations, Decisions, and Directives, detailing the requirements for each to have Direct Effect. The document also addresses the challenges posed by Directives in terms of uniformity and the solutions proposed to mitigate these issues, emphasizing the need for treaty drafters to resolve these complexities.

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Aayla Arifeen
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32 views1 page

EU Direct Effect

The document discusses the concept of Direct Effect in EU Law, which allows individuals to enforce rights created by Union Law in national courts under certain conditions. It outlines various sources of EU law, including Treaty Articles, International Agreements, Regulations, Decisions, and Directives, detailing the requirements for each to have Direct Effect. The document also addresses the challenges posed by Directives in terms of uniformity and the solutions proposed to mitigate these issues, emphasizing the need for treaty drafters to resolve these complexities.

Uploaded by

Aayla Arifeen
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

DIRECT EFFECT

 Treaty of Rome- Traite Cadre (Framework Treaty- gaps were to be filled by CJEU & Secondary Legislation)
 Problem (Where can individuals enforce their rights under EU Law?)
 Option 1 (CJEU) – Downside (CJEU is a tiny institution/Standing before CJEU/Reliance on MS & Commission)
 Option 2 (Operation of conventional International Law (Monism & Dualism)) – Downside (Compromise on Uniformity)
 Option 3 (Direct Effect) – Direct Effect means that, subject to certain conditions, Union Law creates rights and obligations
which individuals may rely on and enforce in their national courts.

EU Law Direct Effect Conditions


1 Treaty Articles Yes Van Gend En Loos
Vertical & Horizontal 1. Clear and Precise
(Defrenne v SABENA) 2. Unconditional
3. No further implementing measure
4. Negative rather than positive (repealed by AlfonsLutticke GmbH)
2 International Yes International Fruit Company
Agreements 1. Clear and Precise
2. Unconditional
Polydor
3. Must further the aim of Single Market
3 Regulations Yes Azienda Agricola
Article 288 TFEU 1. Clear and Precise
2. Unconditional
binding anad applicable directly Commission v. UK(Tachographs)
Commission v. Italy (Slaughtered Cows)
3. No further implementing measure
4 Decisions Yes Grad v. Finanzamt
Article 288 TFEU Binding on those to A national of a Member State to which a decision had been addressed could invoke
whom they are that decision in national courts
addressed
5 Directives Yes Van Duyn v. Home Office
Article 288 TFEU 1. Clear and Precise
Vertical only 2. Unconditional
(Pubblico Ministro v. 3. Time limit must have expired
Ratti) 4. Action can only be vertical

Reasoning Problem (compromise on uniformity)


(Marshall v. Solutions to mitigate the harshness of the rule
Southampton)
1. Faccini Dori (AG’s Opinion- Horizontal Direct Effect- not followed)
2. Werner Mangold (Justice without mentioning the question in judgment)
3. Wide definition of ‘emanation of the state’ (Foster v. British Gas)- four part
test- Example (National Union Of Teachers)
4. Incidental Horizontal Direct Effect/ Triangular Situations (CIA Security
International)
5. Indirect Effect
 Von Colson- Article 4 (3) TEU-Harmonious Interpretation
 Marleasing SA (Reasoning of indirect effect applies to vertical as
well as horizontal actions)
 Limitations to the doctrine of indirect effect
a. Possibility
b. Legal certainty and non-retroactivity (Kolpinghuis)
c. Criminal Liability (Luciano & Berlusconi)

first para : intro: tfeu is a framework treaty, the gaps, how to fill them, (direct effect), the issues that caused direct effect

second: discuss 1 to 4

three: derectives causes inequality, so some mitigatioin created (3 factors created)

conclusion: cjeu tried its best to solve the issue, but the issue is to be solved by the drafters of treaty

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