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EU Law: Direct Effect, Indirect Effect and State Liability - Assignment Example

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The author examines the issue which relates to the doctrine of direct effect, indirect effect, and state liability. Each of these is discussed at length and evaluation of whether Jean can enforce her rights in accordance with the said principles against the employer is made…
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EU Law: Direct Effect, Indirect Effect and State Liability
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Download file to see previous pages The doctrine of direct effect is a principle that has been by the European Court of Justice and not is the EC Treaty. The development of the doctrine was done in a series of judgments. The doctrine is simple terms means that subject to satisfaction of certain conditions, rights and obligations which are created by EC law, may be relied upon by individuals and can be enforced in their national courts.

The doctrine developed in Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen2, the Court found that the Treaty was more than an international agreement; it introduced a ‘new legal order’, which had its own institutions as well as legislative powers, thereby granting rights and obligations on individuals as well as governments. The courts went on to lay down the conditions that need to be satisfied in order to enforce a Treaty in the national courts, these were that the provision must be clear and precise; it must be unconditional, and its operations must not be dependent upon further action by national or EC authorities. A fourth condition requiring negative prohibition was also introduced in Van Gend but was dropped in later judgments (57/65 Alfons Lutticke GmbH3). Even the conditions that were laid down so as to utilize the doctrine of direct effect as an exception rather than a rule had been carved away. For a provision to be conditional, it must confer discretionary powers upon a third party (e.g. Member State) and thus cannot have a direct effect. Furthermore, the requirement that action must not be dependent on any further action can be done away with when the time limit within which such action should be taken has expired, thus allowing the direct effect to be used. (Case 43/75 Defrenne v. SABENA4). Finally, lack of clarity can be circumvented by national courts, by way of seeking clarity from ECJ through Article 234 preliminary reference procedure. Thus the doctrine of direct effect operates as a norm rather than as an exception. ...Download file to see next pages Read More
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