This essay argues that while the concept of indirect effect of EU Law is important for safeguarding individual’s rights due to its several beneficial characteristics, recent case law indicates that the principle of horizontal direct effect becomes more important.
The essay starts by focusing on the direct effect of primary EU law, particularly Treaty Articles, before discussing the principle regarding secondary sources, especially directives. After that, strategies developed by the CJEU to neutralise the impact of the rule that directives do not have horizontal direct effect are debated, leading to the conclusion that indirect effect becomes less important.
Table of Contents
1. Introduction
2. Development of Direct Effect
3. Application of the Principle of Direct Effect
3.1 Primary Sources of EU Law
3.2 Secondary Sources of EU Law
4. Strategies for Direct Effect of Directives
4.1 Emanation of the Concept of the 'State'
4.2 Concept of Indirect Effect
5. Horizontalisation of EU Law
6. Conclusion
Objectives & Key Themes
This essay explores the evolution of the doctrine of direct effect in European Union law, examining how the Court of Justice of the European Union (CJEU) has expanded this principle to enhance the effectiveness of EU law. The research questions focus on the shift from vertical to horizontal direct effect, the role of indirect effect, and the emergence of new strategies used by the Court to protect individual rights against both state actions and private entities.
- The distinction between vertical and horizontal direct effect.
- The role of the CJEU in legal interpretation and community building.
- The application of direct effect to primary and secondary EU law sources.
- Strategies to mitigate the limitations of directives in horizontal disputes.
- The "horizontalisation" of EU law through the interaction with general principles.
Excerpt from the Book
Two main reasons for developing direct effect were the securing effectiveness of EU law within Member States, and the consistent application of Union law (Dougan 2011, 409).
Furthermore, by giving individuals the possibility of challenging state actions for violating EU law through the concept of direct effect, allowing the private enforcement of EU law, individuals became part of the legal order of the EU (Craig and de Búrca 2015, 185). Therefore, due to the judicial creation of direct effect by the CJEU in the 1963, a ‘new legal order of international law’ has been established that puts the individual and the protection of citizen’s rights in the centre (Witte 2011, 358), permitting the domestic enforcement of international law by citizens (Craig and de Búrca 2015, 185). The creation reflects the CJEU’s “vision of the kind of legal community that the Treaties seemed designed to create”, namely a Community of peoples with individuals at the centre of the system who could obtain rights from the EEC Treaty (Craig and de Búrca 2015, 189). Consequently, the concept of direct effect is the result of the teleological interpretation of the Treaty, where, as opposed to a literal interpretation, the text is interpreted in the meaning of the goal of the Treaty, namely the establishment of a community as described above (Craig and de Búrca 2015, 189).
Summary of Chapters
1. Introduction: This chapter introduces the doctrine of direct effect as an unwritten principle of law that allows individuals to invoke EU law before national courts.
2. Development of Direct Effect: This section discusses the foundational rationale behind direct effect, emphasizing the objective of securing the effectiveness of EU law and establishing a new legal order.
3. Application of the Principle of Direct Effect: This chapter analyzes how the doctrine applies to different sources, focusing on the milestone Van Gend en Loos case regarding primary sources and the specific challenges posed by secondary legislation.
4. Strategies for Direct Effect of Directives: This section details the judicial efforts to manage the impact of directives, including the expansion of the 'state' definition and the development of the principle of harmonious interpretation.
5. Horizontalisation of EU Law: This chapter examines the recent trend of using general principles of EU law to achieve exclusionary effects in horizontal, private-party disputes.
6. Conclusion: The final section summarizes how the CJEU has successfully shifted the focus toward protecting individual rights, anticipating a decline in the necessity of indirect effect as horizontal direct effect continues to evolve.
Keywords
Direct Effect, Indirect Effect, CJEU, European Union Law, Vertical Direct Effect, Horizontal Direct Effect, Harmonious Interpretation, Private Enforcement, Treaty Articles, Directives, Fundamental Rights, Legal Order, Non-Discrimination, Case Law, Judicial Interpretation.
Frequently Asked Questions
What is the central focus of this paper?
The paper examines the evolution and application of the doctrine of direct effect in EU law, analyzing how the CJEU has utilized it to improve legal enforcement and protect individual rights.
What are the primary themes discussed?
Key themes include the distinction between primary and secondary sources of law, the role of indirect effect, and the recent "horizontalisation" of EU legal enforcement.
What is the ultimate goal of the research?
The research aims to demonstrate how the CJEU has transitioned from relying on indirect effect to adopting more direct strategies, thereby enhancing the effectiveness of EU law.
Which scientific methodology is applied?
The author employs a legal-analytical approach, primarily through the examination and interpretation of CJEU case law and academic doctrine.
What topics are covered in the main section?
The main section covers the history of direct effect, the difference between vertical and horizontal applicability, and strategies like the emanation of the 'state' and the use of general principles.
Which keywords define this work?
The core keywords include Direct Effect, Indirect Effect, CJEU, European Union Law, and Private Enforcement.
How does the definition of 'state' impact directive enforcement?
By expanding the definition of the 'state' to include bodies under state control or those with special powers, the CJEU allows individuals to enforce directives against these entities, effectively bypassing the lack of horizontal direct effect.
What is the 'exclusionary effect' mentioned in the text?
The exclusionary effect allows national courts to set aside domestic laws that conflict with EU law, even in private disputes, without necessarily imposing new positive obligations on the parties involved.
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- Carolina Gerwin (Autor:in), 2019, EU Law. Direct and Indirect Effect, München, GRIN Verlag, https://www.grin.com/document/510893
