European Court of Justice, Cour Européenne de Justice, direct effect, effet direct, supremacy, primauté, European Union, Union Européenne, community law, droit communautaire, indirect effect, effet indirect, state liability,
According to Steiner, Woods & Twigg-Flesner, the ECJ, by interpreting the Treaties, gave direct effect and supremacy a common objective 'in the ECJ's approach: the need to ensure the effectiveness of Community law. [...] The Community would not survive if States were free to act unilaterally in breach of their obligations. If the aims of the Community are to be achieved, there must be uniformity of application.'
It is important to give definition of these two key concepts. The supremacy 'is a basic rule of Community law that [...] a directly effective provision of Community law always prevails over a provision of national law. This rule [...] applies irrespective of the nature of the Community provision [...] or that of the national provision [...]; it also applies irrespective of whether the Community provision came before, or after, the national provision: in all cases the national provision must give way to Community law.'
'The Court of Justice created the principle of direct effect, which was based upon the premise that the Treaty created rights for citizens of Member States which, if enforced by them in the courts of the Member States, would provide an additional supervisory function to that already contained in the former Arts 169 and 170 EC Treaty.' (now Arts 258 and 259 TFEU.)
The outline for this essay would be: To what extent the ECJ has ensured the effective application of European law (or the European integration by the law) via the concepts of supremacy and direct effect?
On the one hand we will see how the ECJ succeeded in ensuring this application of EU law, by giving a general frame to both concepts, then by developing their scope separately. On the other hand, we will see the flaws in ECJ's objective, by analyzing the role of other actors, the limits of direct effect and supremacy and finally the development of extra-concepts.
[...] Steiner, Woods, Twigg-Flesner add that ‘The criteria are, however, applied generously with the result that many provisions which are not particularly clear or precise, especially with regard to their scope and application, have been found to produce direct effects. Even where are conditional and subject to further implementation they have been held to be directly effective once the date for implementation is past.' The ECJ also developed the principle of direct effect via the concepts of vertical and horizontal direct effect. ‘A provision of Union law which is enforceable in national courts or tribunals against the state or emanation of the state, overriding any inconsistent national provisions, is said to have vertical direct effect. [...]
[...] But if the provisions of domestic law cannot be interpreted in such a way [ ] the State may be obliged to make good the claimant's loss on the principles of State liability.'As a matter of fact, the indirect application of EC law still remains uncertain in which it is essentially a matter of interpretation by the national courts. According to John Fairhurst, ‘the principle of state liability, established by the court of Justice in case C-6 and 9/90 Francovich  ECR I-5357, provides that if a person suffers damages because of a Member State's breach of Union law, the Member State is liable to the aggrieved person if: the rule of Union law infringed is intended to confer rights on individuals; the breach is sufficiently serious; and (iii) there is a direct causal link between the breach of the rule and the damage sustained by the person.' T.C Hartley adds that ‘The Francovich case opened a new chapter in the European Court's campaign to make law more effective the Francovich principle applies to all organs of the States, including the judiciary.' However, the full scope of this principle was revealed in the joined cases C-46 Brasserie du Pêcheur v Germany and 48/93 R v Secretary of State of Transport, ex parte Factortame Ltd and Others. [...]
[...] The question was : `Can Union measures take effect in Germany even if they are contrary to fundamental human rights?` The ECJ answered in its judgement that : `the law born from the Treaty [cannot] have the courts opposing to its rules of national law of any nature whatever [ . ] the validity of a Community instrument or its effect within a Member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that State's constitution or the principles of a national constitutional structure.‘ However, the Member States and their national courts had great difficulty to accept the supremacy of EC law over their own constitutional law, supposed to be supreme. [...]
[...] Where there was such a wide discretion, three conditions had to be met in order to incur state liability.' "In such circumstances, Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties." (para 51) Furthermore, in the paragraph 56 of the judgment of these two combined cases, the ECJ set a number of factors that must be taken into consideration by the national court when establishing whether a national government manifestly and gravely disregards the limits to its discretion. CONCLUSION We have just wondered to what extent the ECJ has ensured the effective application of European law via the concepts of supremacy and direct effect? We can say that the ECJ succeeded in its main objective by developing these two principles, but we can't ignore that it needed more tools than expected. [...]
[...] [ ] A directive cannot impose an obligation on an individual or itself; it needs to be implemented to have this consequence.' The creation of the principles of indirect effect and state liability The ECJ developed the direct effect to allow individuals to rely on EC law before the national courts, in case of a Member State has failed to implement a Union Law provision, or if its implementation is incomplete. However, this principle is not perfect, and to make up for its limits, the ECJ created the principle of indirect effect and state liability. Indeed, ‘Although the ECJ has not shown willing to allow horizontal direct effect of directives, it has developed an alternative tool by which individuals may rely on directives against another individual. [...]
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