P4; CH4: Direct and Indirect effect

Question 1

Why did the Court created the DOCTRINE OF DIRECT EFFECT?

Answer 1

Since other sources of law other than REGULATIONS are not expressively endowed with the feature of direct effect.

Moreover, Individuals and Administrations contribute to EU law enforcement by applying directly dispositions that let individuals enjoy rights. (Solving the domestic-common law conflict)

PRESUPPOSED THAT THERE’S SUCH CONFLICT DUE TO A NON-TRANSPOSITION OF UNION LAW

Question 2

What’s the DOCTRINE OF DIRECT EFFECT?

Answer 2

It permits natural or legal persons to invoke Union norms before national authorities. Thus, when the norms are mandatory, clear, precise and complete, they become RULES AD SINGOLARUM UTILITATEM (benefitting individuals)
- Among Individuals
- betw. MS and Individuals

Question 3

What are the two effects of Direct Effect Doctrine?

Answer 3

Exclusionary effect:
national bodies must disapply the conflicting domestic law, due to the BINDING character of the provision

Substitutionary effect:
national authorities must enforce rights governed by Union law, due to the CLARITY character of the provision

Question 4

Which norms do have direct effect?

Answer 4

it’s decided by the ECJ through preliminary rulings

Question 5

Is the judgement of a preliminary ruling on direct effect of a norm constitutive?

Answer 5

No, it’s declaratory, since the nomr is considered to “always has been” direct effect (Ab origine, inherently retroactive)

However, sometimes it’s better for ECJ to annull retroactive effects toa void bigger problems

Question 6

How is Doctrine of primacy linked to Doctrine of direct effect?

Answer 6

• provisions having direct effect have precedence in being invoked over incompatible domesti rules
• primacy of law is the foundation of the exclusionary process

Question 7

Vertical vs. Horizontal Direct effect

Answer 7

Vertical: MS-Individuals disputes
Horizontal: betw. Individuals disputes

Question 8

Can Directives have direct effect?

Answer 8

Since they address MS only, they can’t have horizontal direct effect, however in some residual cases they produce also vertical effects

(such as the non-correct implementation of directives OR when they make a primary law norm more precise)

Question 9

Can Decisions have direct effect?

Answer 9

Only to their addressee

Question 10

Can International Agreements have direct effect?

Answer 10

Only if it’s not excluded by the will of the parties

Question 11

Doctrine of Indirect Effect (or CONSISTENT INTERPRETATION)

Answer 11

WHEN THE NORM IS IMPOSSIBLE TO APPLY DIRECTLY,
National authorities within certain limits are required to orient domestic law interpretation using Union’s law provision as a necessary legal parameter

Based on the principle of loyal cooperation