Direct Effect, Supremacy and State Liability
2007 ZB Q3 The doctrine of direct effect was developed by the CJEU to give greater
rights to the individual under EC law. It found, however, that the doctrine
in itself was not sufficient and that it had to develop further remedies.
Trace the CJEU case law and discuss the current situation in this respect.
Explain this comment and describe the development of the doctrine to the
present day in the light of this description.
2008 ZB Q2 Trace the development of the doctrine of direct effect from its inception in
the case law of the CJEU, with reference to primary and secondary
community legislation and to international agreements, and explain the
extents of its contribution of Community Law and the development of the
rights of individuals.
2012 ZB Q2 The doctrine of direct effect has improved the protection of rights of
individuals, but it has a number of shortcomings. With reference to the
case law, analyse this statement and discuss the ways in which the CJEU
has attempted to make up for those shortcomings by finding other routes.
2015 ZB Q7 Despite some grey areas such as the case law on horizontal applicability
of directives, the principle of direct effect is simple to understand. It
means that the whole body of EU law is, as such, incorporated into the
national legal orders – it is, as such, valid and application. This is why
individuals can rely on provisions of EU law before national courts and
why the latter must take them into consideration and apply them. Discuss.
2018 ZB Q2 ‘The CJEU has once more stated that, in accordance with its settled case
law, a directive cannot of itself impose obligations on an individual and
cannot therefore be relied upon, as such, against an individual.’ (Case C
413/15, Farrell, 2017). Discuss with reference to the CJEU’s case law on
direct effect.
2020 ZB Q2 ‘[T]here are – essentially – three approaches that can be (and have been)
used to fill the lacuna created by the absence of general horizontal direct
effect [of directives]: (i) a broad approach to what is an emanation of the
State; (ii) taking the principle of consistent interpretation to its limits; and
(iii) as a fall-back, State liability in damages. From the perspective of
giving effective protection to individual rights, the present situation is less
than satisfactory. It creates complexity for plaintiffs and uncertainty for
defendants.’ (AG Sharpston’s Opinion in Farrell). Discuss.
, DE
Intro
The statement is an accurate account of the doctrine of direct effect.
Improve protection but has shortcoming – Whilst the doctrine of direct effect is
one of “hallmark” of EU legal order (Armin Cuyvers) mainly due to the improvement
in protecting individuals by allowing individuals their right to enforce their community
law in their own national courts. This principle is not expressly stated in treaty, so
CJEU had to rely on subjective approach to develop these rights, leading to
inconsistent and controversial rulings. To analyse these problems, we would look at
the origin of direct effect and court attempts in finding alternative way to overcome
these shortcomings and the effectiveness of the alternative remedies.
Despite grey areas, DE simple to understand – Whilst the doctrine easy to
understand mainly due to the improvement in protecting individuals by allowing
individuals their right to enforce their community law in their own national courts. This
principle is not expressly stated in treaty, so CJEU had to rely on subjective approach
to develop these rights, leading to inconsistent and controversial rulings. To analyse
these problems, we would look at how simple the doctrine operates and its grey area,
and court attempts in finding alternative way to overcome these grey areas and
whether the alternative remedies are simple to understand and satisfactory.
Directive cannot of itself impose obligation so cannot relied upon – Whilst the
doctrine of direct effect is one of “hallmark” of EU legal order (Armin Cuyvers)
mainly due to the improvement in protecting individuals by allowing individuals their
right to enforce their community law in their own national courts. This principle is not
expressly stated in treaty, so CJEU had to rely on subjective approach to develop
these rights, leading to inconsistent and controversial rulings, especially when court
repeatedly opine that directive are not capable of horizontal direct effect
notwithstanding, they had few opportunities to decide otherwise. To analyse these
problems, we would look at the origin of direct effect and court attempts in finding
alternative way to overcome these shortcomings and the effectiveness of the
alternative remedies.
Present alternative remedies are less satisfactory - Whilst the doctrine of direct
effect is one of “hallmark” of EU legal order (Armin Cuyvers) mainly due to the
improvement in protecting individuals by allowing individuals their right to enforce
their community law in their own national courts. This principle is not expressly
stated, so CJEU had to rely on subjective approach to develop these rights, leading
to inconsistent and controversial rulings. More importantly, the approaches created
by court in addressing the lack of horizontal direct effect of directives are less than
satisfactory and creates complexity and uncertainty. This question warrants a
discussion on the lacuna, each of the approaches, and whether the rationale behind
such approaches fit with the rationale in the lacuna.
History
The concept of direct effect first found in Van Gend en Loos, where court held treaty article
is capable of direct effect, more specifically, a vertical direct effect, one could rely on treaty
provision against member states provided certain conditions are satisfied. Following
Defrenne v SABENA, court extend horizontal direct effect to treaty article, one could rely
on treaty provision against another private individual on the assumption that all conditions
laid down in Van Gend en Loos have been satisfied.
Directive
2007 ZB Q3 The doctrine of direct effect was developed by the CJEU to give greater
rights to the individual under EC law. It found, however, that the doctrine
in itself was not sufficient and that it had to develop further remedies.
Trace the CJEU case law and discuss the current situation in this respect.
Explain this comment and describe the development of the doctrine to the
present day in the light of this description.
2008 ZB Q2 Trace the development of the doctrine of direct effect from its inception in
the case law of the CJEU, with reference to primary and secondary
community legislation and to international agreements, and explain the
extents of its contribution of Community Law and the development of the
rights of individuals.
2012 ZB Q2 The doctrine of direct effect has improved the protection of rights of
individuals, but it has a number of shortcomings. With reference to the
case law, analyse this statement and discuss the ways in which the CJEU
has attempted to make up for those shortcomings by finding other routes.
2015 ZB Q7 Despite some grey areas such as the case law on horizontal applicability
of directives, the principle of direct effect is simple to understand. It
means that the whole body of EU law is, as such, incorporated into the
national legal orders – it is, as such, valid and application. This is why
individuals can rely on provisions of EU law before national courts and
why the latter must take them into consideration and apply them. Discuss.
2018 ZB Q2 ‘The CJEU has once more stated that, in accordance with its settled case
law, a directive cannot of itself impose obligations on an individual and
cannot therefore be relied upon, as such, against an individual.’ (Case C
413/15, Farrell, 2017). Discuss with reference to the CJEU’s case law on
direct effect.
2020 ZB Q2 ‘[T]here are – essentially – three approaches that can be (and have been)
used to fill the lacuna created by the absence of general horizontal direct
effect [of directives]: (i) a broad approach to what is an emanation of the
State; (ii) taking the principle of consistent interpretation to its limits; and
(iii) as a fall-back, State liability in damages. From the perspective of
giving effective protection to individual rights, the present situation is less
than satisfactory. It creates complexity for plaintiffs and uncertainty for
defendants.’ (AG Sharpston’s Opinion in Farrell). Discuss.
, DE
Intro
The statement is an accurate account of the doctrine of direct effect.
Improve protection but has shortcoming – Whilst the doctrine of direct effect is
one of “hallmark” of EU legal order (Armin Cuyvers) mainly due to the improvement
in protecting individuals by allowing individuals their right to enforce their community
law in their own national courts. This principle is not expressly stated in treaty, so
CJEU had to rely on subjective approach to develop these rights, leading to
inconsistent and controversial rulings. To analyse these problems, we would look at
the origin of direct effect and court attempts in finding alternative way to overcome
these shortcomings and the effectiveness of the alternative remedies.
Despite grey areas, DE simple to understand – Whilst the doctrine easy to
understand mainly due to the improvement in protecting individuals by allowing
individuals their right to enforce their community law in their own national courts. This
principle is not expressly stated in treaty, so CJEU had to rely on subjective approach
to develop these rights, leading to inconsistent and controversial rulings. To analyse
these problems, we would look at how simple the doctrine operates and its grey area,
and court attempts in finding alternative way to overcome these grey areas and
whether the alternative remedies are simple to understand and satisfactory.
Directive cannot of itself impose obligation so cannot relied upon – Whilst the
doctrine of direct effect is one of “hallmark” of EU legal order (Armin Cuyvers)
mainly due to the improvement in protecting individuals by allowing individuals their
right to enforce their community law in their own national courts. This principle is not
expressly stated in treaty, so CJEU had to rely on subjective approach to develop
these rights, leading to inconsistent and controversial rulings, especially when court
repeatedly opine that directive are not capable of horizontal direct effect
notwithstanding, they had few opportunities to decide otherwise. To analyse these
problems, we would look at the origin of direct effect and court attempts in finding
alternative way to overcome these shortcomings and the effectiveness of the
alternative remedies.
Present alternative remedies are less satisfactory - Whilst the doctrine of direct
effect is one of “hallmark” of EU legal order (Armin Cuyvers) mainly due to the
improvement in protecting individuals by allowing individuals their right to enforce
their community law in their own national courts. This principle is not expressly
stated, so CJEU had to rely on subjective approach to develop these rights, leading
to inconsistent and controversial rulings. More importantly, the approaches created
by court in addressing the lack of horizontal direct effect of directives are less than
satisfactory and creates complexity and uncertainty. This question warrants a
discussion on the lacuna, each of the approaches, and whether the rationale behind
such approaches fit with the rationale in the lacuna.
History
The concept of direct effect first found in Van Gend en Loos, where court held treaty article
is capable of direct effect, more specifically, a vertical direct effect, one could rely on treaty
provision against member states provided certain conditions are satisfied. Following
Defrenne v SABENA, court extend horizontal direct effect to treaty article, one could rely
on treaty provision against another private individual on the assumption that all conditions
laid down in Van Gend en Loos have been satisfied.
Directive
