The Doctrine of Direct Effect - Essay Example

Doctrine of Direct Effect The doctrine of direct effect has been fundamentally undermined by the Court of Justice employing unnecessary limitations, inconsistent principles, arbitrary distinctions and flawed reasoning. This statement can be critically analyzed using relevant treaty articles, decided cases and academic opinion. First, it is important to understand the meaning and purpose of the doctrine of direct effect. The advantages of individuals in the Court of Justice are restricted by the EC Law because it does not impose a duty on individuals but rather provides a mechanism through which the state operates. The Doctrine of Direct Effect is a device used by the European Court of Justice to allow individual citizens to use the EC law to their own advantages. Direct effect is not stated explicitly in any of the EU treaties, but it was first established by the European Court of Justice in the court case Van Gend en Loos v. Nederlandse Administratie der Belastingen.1 The application of the Direct Effect to the treaty articles has been loosened, but the ECJ has expanded the principle to apply to all forms of EU legislations. However, the difficulties of applying the doctrine in treaty articles have become a challenge even to the European Court of Justice; hence causing unnecessary limitations, inconsistent principles, arbitrary distinctions and flawed reasoning. The European Union first established the doctrine of direct effect through the case of Van Gend en Loos. The ECJ provided certain criteria for articulating the direct effect. The EU article should be clear, a negative obligation, unconditional, without reservation, and independent of national implementation measures. If these criteria are achieved, the rights can be enforced in national courts. However, the EU law can only determine whether a particular measure meets the criteria through EU courts. Application of the direct effect takes effect when the provision being relied on fulfills the criteria provided by the European Court of Justice through the case of Van Gend en Loos. Because the case addressed issues of treaty articles, the direct effect principle is therefore applicable to treaty articles. The principle can be vertically or horizontally effective. Vertical direct effect applies when the citizens can enforce rights against the state; and is concerned with the relationship between the EU law and the national law. On the other hand, the horizontal direct effect applies when individual citizens enforce rights against each other; and is concerned with the relationship among individuals. The direct applicability of the EU Law means that the EU Law is recognized and applied by the national law without the intervention of the National Assembly. However, treaty laws are not treated in a similar manner. For example, the Treaty of Lisbon 2007 needs to be ratified by the 27 member states according to their national practices. This can be done through referenda or legislators’ vote. In the UK, treaty obligations take effect after domestic legislation. This is due to the dual legal system which separates national and international law. For treaty law to take effect in the UK, it has to be enacted into the national law.2 The courts therefore use the treaty laws for interpretative value; hence they consider that the legislature does not want to violate international law. The direct effect is applicable to treaty articles in many ways. For instance, regulations provided by treaty articles are subject to direct effect. Article 249 of the EC treaty suggests that regulations shall be binding entirely and applicable directly to all member states. In effect, the European Court of Justice has provided that the regulations are therefore directly effective because they confer rights to individuals which the national courts have to protect. Furthermore, Article 288 TFEU also suggests that decisions are binding against the person to whom they are addressed. Various ECJ cases also demonstrate the application of the doctrine of direct effect, although such applications are inconsistent and confer unnecessary limitations. In the case of Grad v. Finanzamt Traunstein,3 the directive is directly effective because it provided an obligation to achieve a given result. In a way that seems to be inconsistent with the above decision, the ECJ ruled in the case of Pubblico Ministero v. Ratti,4 that if the time limit for the implementation of a directive has expired, direct effect does not apply. Directives are therefore directly effective if the date required for member states to implement them has passed. Furthermore, the European Court of Justice ruled on procedural rules in the case of Comet v. Produktschap.5 In this case, ECJ ruled that the procedural rules of member states apply to the cases of the European Union law in general terms. One of the limitations of the ECJ cases is that it contradicts the legislations of member states. For instance, there was conflict with the UK legislation in the case of Macarthys Ltd v Smith.6 In this case, Wendy Smith relied on a treaty provision and a directive to sue her previous employer for better pay. This conflicted with the UK’s Equal Pay Act 1970 and the directive of equal pay for men and women in United Kingdom. In another case, Van Duyn v Home Office,7 the Home Office refused Van Duyn to enter the UK on the ground of undesirability of Duyn. The Dutch National practicing Scientologist wanted to rely on article 48 of the Treaty and article 3 of the Directive 64/221 which encouraged movement of workers across the European Union. The court ruled that the effect of directives ceases to be useful if the national courts prevent individuals from relying on them. Miss Duyn was refused entry on the basis of association with an organisation whose activities are contrary to public good. This case shows the inconsistency of the Court of Justice. While the court had ruled in favour of conferring enforceable individual rights in other cases, the rights of Duyn in this case were not enforced against the UK. The basis on which the case relies is therefore limited and does not protect the rights of all individuals. The European Court of Justice faces limitations caused by national laws of member states of the EU. The time limit of enforcing a directive in the European Court of Justice also causes arbitrariness and limitations of the court. For example, a directive which has not yet been implemented becomes directly effective only after the passage of the date of implementation. The directives are only implemented within the timescale stipulated by the directive. This causes arbitrary distinction in administration of cases in the court of justice. Another limitation of enforcing directives in the court of justice is that they do not have horizontal effect. In this case, individuals may not invoke directives against each other. This is clearly indicated by the case of Marshall v. Southampton & SW Hampshire.8 In this case, Mrs. Marshall argued that she wanted to work at Southampton Teaching Hospital and wanted equal treatment of men and women in regards to retirement age. She relied on the directive of equal treatment of men and women. The directive supported the provision that directives only applied against a public body and not against individuals – vertically and not horizontally.9 In this regard, the court of justice is limited by the means of its application in terms of directives. Due to the fact that a directive is vertically enforceable and not horizontally enforceable, the definition of public body has become necessary. However, such a definition by the court of justice in itself is arbitrary and flawed in terms of reasoning. The meaning of public body was provided by the court of justice in the case of Foster v. British Gas.10 A public body is considered as a body with authority and control of the state. The British Gas was recently privatized but emanated from the state. This perspective gives the court of justice the power to consider the body as a public body. This definition has some flawed reasoning considering the fact that the company is already privatized, and even though it was controlled by the state in the past, it is now under the control of the private entities.11 In conclusion, it is clear that the European Court of Justice is inconsistent in its rulings and bases such rulings on flawed reasoning. The court also faces a lot of limitations because there are conflicts between national laws and international law. Treaty articles do not provide direction on the issue of direct effect, but the court of justice attempts to apply the doctrine in the European Union. Because the treaties are applied in national laws subject to approval by legislators of member states, implementation of the doctrine of direct effect faces challenges of inconsistencies as different member states adopt different laws. The court cases which have already been decided by the court of justice are inconsistent because member states intervene with their national laws and the definition of certain terms such as “public body” is based on flawed reasoning. References list Books Buergenthal, T & Murphy, SD Public international law in a nutshell. Thomson/West, St. Paul, MN, 2007. Claes, M The National Courts’ Mandate in the European Constitution. Bloomsbury Publishing, London, 2006. Conway, G The limits of legal reasoning and the European Court of Justice. Cambridge University Press, Cambridge, UK, 1996. Dashwood, A & Arnull, A A constitutional order of states?: Essays in EU law in honour of Alan Dashwood. Hart Pub, Oxford, 2011. Mancini, F Democracy and Constitutionalism in the European Union: Collected Essays. Bloomsbury Publishing, London, 2000. Osterhoudt, BJ The European Court of Justice and direct effect for the GATT: A question worth revisiting. Harvard Law School, Cambridge, MA, 1998. Prechal, S & Roermund, G The coherence of EU law: The search for unity in divergent concepts. Oxford University Press, Oxford UK, 2008. Symmons, CR Historic waters in the law of the sea: A modern re-appraisal. Martinus Nijhoff Publishers, Leiden, 2008. Tanenhaus, DS & Gale (Firm) Encyclopedia of the Supreme Court of the United States. Macmillan Reference USA, Detroit, 2008. Zonnekeyn, GA Direct effect of WTO law. Cameron May, London, 2008. Articles Bailleux, J ‘Michel Gaudet, a law entrepreneur: The role of the legal service of the European executives in the invention of EC Law and the birth of the Common Market Law Review’. Common Market Law Review, Vol. 50, January 2013, No. 2, pp. 359-381. Craig, P ‘Directives: Direct Effect, Indirect Effect and the Construction of National Legislation’. European Law Review, Vol. 22, January 1997, No. 6, pp. 519-538. Holder, J ‘A Dead End for Direct Effect? Prospects for Enforcement of European Community Environmental Law by Individuals’. Journal of Environmental Law, Vol. 8, January 1996, No. 2, pp. 313-335. Marsden, S ‘Invoking direct application and effect of international treaties by the European Court of Justice: Implications for international environmental law in the European Union’. International and Comparative Law Quarterly, Vol. 60, July 2011, No. 3, pp. 737-757. Montañà, MM ‘Equilibrium: A Rediscovered Basis for the Court of Justice of the European Communities to Refuse Direct Effect to the Uruguay Round Agreements?’ Journal of World Trade, vol. 30, January 1996, No. 5, pp. 43-59. Pagh, P ‘The Direct Effect Doctrine in EC Environmental Law’. Nordic Journal of International Law, Vol. 64, January 1995, No. 1, pp. 23-57. Seba, I ‘The Doctrine of Direct Effect: A Malignant Disease of Community Law’. Legal Issues of European Integration, Vol. 2, January 1995, pp. 35-58. Cases Comet v. Produktschap (Case 45/76) [1976] ECR 2043. Foster v British Gas [1990] ECJ Grad v. Finanzamt Traunstein (Case 9/70) [1970] ECR 825. Macarthys Ltd v Smith, [1979] ECJ and CA. Marshall v Southampton & SW Hampshire AHA [1986] ECJ Pubblico Ministero v. Ratti (Case 148/78) [1979] ECR 1629. Van Duyn v Home Office [1974] ECJ Van Gend en Loos v. Nederlandse Administratie der Belastingen (Case 26/62); [1963] ECR 1; [1970] CMLR 1 Read More