Direct Effect - Origins and Significance Flashcards
What is Direct Effect?
The idea that European law can confer rights to individuals which are enforceable in national courts (provided certain conditions are met).
What were the origins of EU law and why is this significant?
European law was initially conceived as law between sovereign States, as the EU is founded on international agreements (treaties) between its Members. This, significantly, would normally fall under the remit of international law.
Why is it significant that based on its origins EU law would normally fall under international law?
This is significant because, under international law, States – like the United Kingdom – are free to determine the force and rank of international law in the domestic legal order. Classifying EU law as a form of international law would therefore preclude/remove the need for the concept of Direct Effect.
What are the two theories of international law that states adopt when determining the force of international law in domestic legal orders?
- Monism Theory
2. Dualist Theory
What is the monism theory of international law?
Under the monism theory, international law is automatically part of national law. Where there is a conflict, international law would trump over national law.
What is the dualism theory of international law?
Dualism is based on the idea that international law and national law belong to two separate legal worlds. International law cannot automatically be applied by national courts. It can only be applied by international courts. Before international law becomes binding in the national legal order, it must be “transposed” or “implemented”.
Which system does the UK follow in regards to the force of international law?
The United Kingdom follows the dualist theory, as the Parliament needs to legislate before international law becomes part of the national legal order.
Can EU Law be said to fall under International Law and what affect would this have? (1)
No, it was established in the key case of Van Gend en Loos that the EU legal system could not be said to fall within the remit of International Law. The implication of such a finding would have been that the states themselves (rather than EU law itself) dictated the force of the latter in domestic legal orders.
What was the significance of the case of Van Gend en Loos?
In the case of Van Gend en Loos the autonomy of EU Law was established. It laid down that EU law itself determines what legal effect EU law will have in the national legal orders (rather than the states themselves through international law solutions - Monism and Dualism).
How was the EU legal order described in the case of Van Gend en Loos?
It was said in this case that the EU legal order represented a - “…new legal order of international law…”.
How does the case of Van Gend en Loos and the recognition of the autonomy of EU Law link to the concept of Direct Effect?
The recognition of EU Law as autonomous and a ‘new legal order of international law’ precludes the application of the previously discussed international law solutions and so in doing so opens the door for Direct Effect.
How does the inapplicability of International Law solutions recognised in Van Gend en Loos facilitate the application of Direct Effect?
There needs to be some mechanism governing the relationship between EU and National Law, if the international law solutions are inapplicable an alternative means needs to be found - Direct Effect.
How did the courts approach or enforce the idea of Direct Effect in the 1960s and 70s (VGL was 62)?
The Court insisted on a ‘monist’ theory for European law. It would be “directly effective” in the national legal order and where Union law had direct effect, it could be claimed in the national courts.
