DIRECT AND INDIRECT EFFECT

Question 1

When is a treaty or a provision of it said to be directly effective?

Answer 1

If a Treaty applies in a state without the Member state having to implement it into national law in order for it to be applied.
A treaty that is directly effective is already part of the legal system of the state in question.

Question 2

When will a treaty NOT be directly effective?

Answer 2

It is not directly effective if it cannot be applied in the domestic law of that state without the adoption of legislation.

Question 3

Which was the first decision made by the European Court on direct effect?

Answer 3

Van Gend en Loos - was the first and most important judgement ever handed down by the European Court.

The case arose when a private firm sought to invoke Union law against the Dutch tribunal.

The tribunal made a reference to the European Court. The main issue was whether Article 12 of the EEC Treaty was directly effective

Question 4

What was the issue to be decided in the case of Van Gend en Loos?

Answer 4

Issues :
The case arose when a private firm sought to invoke Union law against the Dutch customs authorities in proceedings in a Dutch tribunal.
The tribunal made a reference to the European Court.
The issue to be decided was whether Article 12 of the EEC Treaty was directly effective.

Article 12 : Member states shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect.

Reasoning:

1. The court took the view that a provision is not prevented from being directly effective merely because it is addressed to Member states and does not expressly confer rights on private individuals.
2. The courts held that ‘The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member states and their subjects.

Question 5

Following the first case on Direct Effect, what changed?

Answer 5

In later cases the test was modified and refined. The suggestion that only negative obligations (prohibitions) will be directly effective has been dropped and the test is now :

1. The provision must be clear and unambiguous
2. It must be unconditional
3. It’s operation must not be dependant on further action being taken by the Union or national authorities

Question 6

Described the test for which a provision must pass in order to be directly effective

Answer 6

1. The provision must be clear and unambiguous
   - If the provision merely lays down a general objective or policy to be pursued without specifying the appropriate means to attain it, it can hardly be regarded as a legal rule suitable for application by a court of law. In such cases, clearer legislation is needed before it becomes operative.
   For example :
   Article (4)(3) TEU

2, Must be Unconditional