Direct Effect, Supremacy and State Liability
2011 ZB Q2 Describe the development of the doctrine of direct effect of Union law by
the European Court of Justice and explain how it is linked with the
European Court’s other doctrines of supremacy and state liability for
breach of Union law.
2013 ZB Q3 The principles laid down by the Court in Van Gend en Loos and Costa v
Enel judgements are essentially one: the need to ensure the effectiveness
of EU law by empowering individuals. (Direct Effect and Supremacy).
Discuss.
2016 ZB Q7 ‘The Court in Costa v Enel (1964) and Van Gend en Loos (1963)
emphasised that the Treaties were contractual, that they created
obligations for the Member States and that the action taken by them must
not be such as to derogate from or nullify the obligations they have
undertaken under the Treaties. It is in that context that we should
consider what the Court said in Van Gend en Loos about the role of
individuals in enforcing EU law at the national level.’ (Direct Effect and
Supremacy), Discuss.
2017 ZB Q1 ‘The case law on supremacy and direct effect not only put the individual at
the core of European integration, but also the European Court of Justice.’
Discuss.
2020 ZA Q6 ‘What constitutes the basis of direct effect, supremacy and consistent
interpretation? The CJEU’s case law is in reality very pragmatic, building
on the paradigm of EU law as an independent – autonomous – legal order
of a new kind. “Autonomous” refers here to the fact that law creation and
the effects of this law are decided by that legal order itself, independently
from national law.’ Discuss.
, Intro
The doctrine of supremacy and direct effect helps ensure effectiveness of EU law by
protecting individuals’ rights to enforce their community law in their own national courts.
However, these principles are not expressly stated in treaty, so CJEU has 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 these principles and
courts attempts in finding alternative ways to overcome these shortcomings and the reason
behind them.
Treaty
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
As directive require further implementation by member state within transposition date
stipulated in directive and its one of the conditions of Van Gen den Loos, it would appear
that directives leave out of the scope. In such circumstance where member states fail or
incorrectly to implement a directive, individual are unable to rely on a national implementing
law to enforce any right that directive may have given them. To fill this gap and make sure
member states do not get away by not implementing (correctly) directive, CJEU in Van
Duyn has found that directives are capable of vertical direct effect provided time stipulated
for implementation of directive has passed. The decision was confirmed by following case of
Ratti. Such decision shows CJEU willingness to interpret EU law in more flexible manner to
protect individual right to enforce their community law in their own national courts. However,
in Marshall court states directives are only issued to member states, as such obligations
can only be imposed on states and not on private individuals, therefore no horizontal direct
effect of directive. Such a lack of horizontal direct effect creates certain gap in legal
protection of individuals and effectiveness of EU law. For instance, where member states
fail to implement a directive on consumer protection, consumer cannot invoke their rights
under directive against any private companies (Dillenkofer v Germany).
Solutions
CJEU acknowledged and recognised such shortfall, developed several other doctrines to at
least reduce the impact of the gap and to ensure effectiveness of EU law as much as
possible and “which could easily be interpreted as ‘exceptions’ that undermine the no
horizontal direct effect rule” (Josefin Johansson and Lisa Lindstrom).
The court found its first gateway by employing a very wide conception of state, and
therefore of vertical situations. British v Foster Gas is a clear example of how court has
broadened the scope of vertical direct effect to include a private company that carries out
state function. It was stated that “a body, whatever its legal form, have been made
responsible pursuant to a measure adopted by the state to provide a public service under
the control of the state and has for that purpose special powers”, it will be considered as a
state”. The following case of Farrell, further broaden the definition of state by stating “to
provide a public service under the control of state” and “to holds special power” is a
conjunctive requirement, hence either one will be satisfied to categories as emanation of the
state. Further, court in Vol Colson demonstrate that duty of conform interpretation requires
national court to interpret national law in conformity with EU law even there is no direct
effect. In other words, although national courts are never obligated to interpret national law
contra legem, national court must try to find a way to read any right granted by a directive
into national law provided the time for implementation of directives has lapsed. Another
2011 ZB Q2 Describe the development of the doctrine of direct effect of Union law by
the European Court of Justice and explain how it is linked with the
European Court’s other doctrines of supremacy and state liability for
breach of Union law.
2013 ZB Q3 The principles laid down by the Court in Van Gend en Loos and Costa v
Enel judgements are essentially one: the need to ensure the effectiveness
of EU law by empowering individuals. (Direct Effect and Supremacy).
Discuss.
2016 ZB Q7 ‘The Court in Costa v Enel (1964) and Van Gend en Loos (1963)
emphasised that the Treaties were contractual, that they created
obligations for the Member States and that the action taken by them must
not be such as to derogate from or nullify the obligations they have
undertaken under the Treaties. It is in that context that we should
consider what the Court said in Van Gend en Loos about the role of
individuals in enforcing EU law at the national level.’ (Direct Effect and
Supremacy), Discuss.
2017 ZB Q1 ‘The case law on supremacy and direct effect not only put the individual at
the core of European integration, but also the European Court of Justice.’
Discuss.
2020 ZA Q6 ‘What constitutes the basis of direct effect, supremacy and consistent
interpretation? The CJEU’s case law is in reality very pragmatic, building
on the paradigm of EU law as an independent – autonomous – legal order
of a new kind. “Autonomous” refers here to the fact that law creation and
the effects of this law are decided by that legal order itself, independently
from national law.’ Discuss.
, Intro
The doctrine of supremacy and direct effect helps ensure effectiveness of EU law by
protecting individuals’ rights to enforce their community law in their own national courts.
However, these principles are not expressly stated in treaty, so CJEU has 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 these principles and
courts attempts in finding alternative ways to overcome these shortcomings and the reason
behind them.
Treaty
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
As directive require further implementation by member state within transposition date
stipulated in directive and its one of the conditions of Van Gen den Loos, it would appear
that directives leave out of the scope. In such circumstance where member states fail or
incorrectly to implement a directive, individual are unable to rely on a national implementing
law to enforce any right that directive may have given them. To fill this gap and make sure
member states do not get away by not implementing (correctly) directive, CJEU in Van
Duyn has found that directives are capable of vertical direct effect provided time stipulated
for implementation of directive has passed. The decision was confirmed by following case of
Ratti. Such decision shows CJEU willingness to interpret EU law in more flexible manner to
protect individual right to enforce their community law in their own national courts. However,
in Marshall court states directives are only issued to member states, as such obligations
can only be imposed on states and not on private individuals, therefore no horizontal direct
effect of directive. Such a lack of horizontal direct effect creates certain gap in legal
protection of individuals and effectiveness of EU law. For instance, where member states
fail to implement a directive on consumer protection, consumer cannot invoke their rights
under directive against any private companies (Dillenkofer v Germany).
Solutions
CJEU acknowledged and recognised such shortfall, developed several other doctrines to at
least reduce the impact of the gap and to ensure effectiveness of EU law as much as
possible and “which could easily be interpreted as ‘exceptions’ that undermine the no
horizontal direct effect rule” (Josefin Johansson and Lisa Lindstrom).
The court found its first gateway by employing a very wide conception of state, and
therefore of vertical situations. British v Foster Gas is a clear example of how court has
broadened the scope of vertical direct effect to include a private company that carries out
state function. It was stated that “a body, whatever its legal form, have been made
responsible pursuant to a measure adopted by the state to provide a public service under
the control of the state and has for that purpose special powers”, it will be considered as a
state”. The following case of Farrell, further broaden the definition of state by stating “to
provide a public service under the control of state” and “to holds special power” is a
conjunctive requirement, hence either one will be satisfied to categories as emanation of the
state. Further, court in Vol Colson demonstrate that duty of conform interpretation requires
national court to interpret national law in conformity with EU law even there is no direct
effect. In other words, although national courts are never obligated to interpret national law
contra legem, national court must try to find a way to read any right granted by a directive
into national law provided the time for implementation of directives has lapsed. Another
