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On the Doctrine of the Direct Effect of European Provisions Regarding the Requirement of EnforceabilityO doktrini izravnog učinka europskih odredaba vezano uz uvjet njihova važenja i provedivosti
Abstract
This paper analyses the interpretation of direct effect in terms of its contribution to the development of an efficient European legal system. A precondition for efficiency is the enforceability of provisions. The concept of direct effect, interpreted on the basis of a questionably adequate understanding of the concept of monism taken over from international law, should enhance enforceability by disabling national agents to interfere or to perform the “handover” of rights from the EU level to citizens. Such understanding leads to the national practice applying direct effect in a simplified, plain, and bureaucratic way, and distancing from the substance of provisions. In the cases where, intentionally or not, direct effect/direct applicability are sometimes denied and sometimes recognised to directives and regulations, the CJEU shows how to deal with such situations occurring in the activities of the European regulatory institutions. To fulfil its purpose, national agents applying European law should deploy the underutilised but demanding “shield and sword” approach regarding direct effect. Such an approach, which requires almost equally intense engagement as in the case of indirect effect (also insufficiently exercised at the national level), should defend individual rights from both national and supranational unfavourable influences. In doing so, fundamental rights and general principles encouraged and taken care of by the CJEU, which are and should be the cornerstone of the EU legal system, and which are ultimately a justification for the Member States to embrace the principle of supremacy of European law, should be taken into account.
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U radu se analiziraju koncepti izravne primjene i izravnog učinka koji su se razvili u praktičnoj primjeni uredaba i direktiva kao obvezujućih akata sekundarnoga europskog zakonodavstva. Autorica dokazuje da se direktivama u određenim slučajevima priznaje izravni učinak, a uredbama odriče; da je kod direktiva izravna primjena u pravilu posljedica izravnog učinka, a kod uredaba izravni učinak posljedica izravne primjene; da su u nekim slučajevima i u vezi s nekim vrstama akata ti koncepti katkad uzajamno uvjetovani, a katkad ne, tvrdeći da su te iznimke od pravila posljedica zahtjeva za učinkovitošću europskog prava na nacionalnoj razini te primjene prava po metodi case by case. Autorica, međutim, smatra da ti zahtjevi i metode ne dovode u pitanje originalna temeljna pravna pravila, da oni označavaju odstupanje, ali ne i ukidanje temeljnih pisanih pravila te su potrebni radi razvoja europskog prava i postizanja njegovih ciljeva koji bi mogli doći u pitanje ako bi se primjenjivao strogi formalizam.
Summary: In the process of European integration, national constitutional law remains crucial, in several respects. The EU Constitution, in its broadest sense, builds on the common constitutional traditions and principles of the Member States, and EU law refers back to national constitutional law in many ways. National constitutional law contributes to constitutionalising the EU, to give it legitimacy, and to ensure that the EU and the Member States as its agents continue to comply with fundamental constitutional requirements, such as the rule of law, democracy and accountability, and the protection of fundamental rights. Also, from the national perspective, national constitutional law remains essential, since it provides the foundation of membership of the EU, it is decisive for the procedures to be followed when powers are transferred at times of accession and Treaty amendment, and it serves to provide the connection between the national and the EU legal orders. Participation in the EU requires adaptation of the national constitutional arrangements, and national constitutions should not be neglected in the process of the constitutionalisation of Europe. This paper looks into the national constitutional experience of the EU-15 with the EU and asks whether lessons can be learned for candidate countries.
The European Court of Justice is a controversial institution. Its supporters see it as having played a central and positive role in shaping a polity which has given its Member States an unprecedented degree of peace, stability and prosperity. To its detractors, it has ignored the Treaties from which it derives its powers in order to pursue an agenda of its own about the political shape of Europe. This book analyses the Court’s place in the institutional architecture of the European Union and its contribution to the constitutionalization of the Union and the development of the Union’s substantive law. Questions examined include the jurisdiction of the Court; the relationship between Union law and national law; the impact of Union law on national laws concerning remedies; and the protection of fundamental rights. The book also looks at certain key areas of substantive law which have to a large extent been judicially constructed. In the final section, some overarching themes relating to the Court’s overall approach are addressed. To what extent has it evolved with the development of the Union? What has been the Court’s relationship with the other institutions of the Union and the national courts of the Member States? Should we regard the central role the Court has undoubtedly played in the development of the Union as legitimate? What is the nature of the role reserved for the Court under the Union’s Constitutional Treaty, signed by the Member States in Rome on 29 October 2004? The book will be of interest to anyone concerned with the development of the European Union and the role of the Court in that process.
Direct effect is the capacity of a norm of EU law to be applied in domestic court proceedings, whereas primacy (or supremacy) denotes the capacity of that norm to overrule inconsistent norms of national law in domestic court proceedings. The two principles are closely linked, and are characteristic features of the EU legal order. In the spirit of the volume, this chapter discusses the evolution of the European Court’s case law dealing with the two principles, with special attention to the circumstances in which the Court ‘invented’ the doctrines of direct effect and primacy almost sixty years ago. The chapter draws the attention to some less explored aspects of the evolution of the European Court’s case law and discusses the generally friendly, but also occasionally frosty, reception of that case law by its addressees, the national courts of the member states.
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. The seventh edition of EU Law: Text, Cases, and Materials provides clear analysis of all aspects of European law in the post Lisbon era. This edition looks in detail at the way in which the provisions of the Lisbon Treaty have worked since the Treaty became operational, especially innovations such as the hierarchy of norms, the different types of competence, and the legally binding Charter of Rights. The coming into effect of the new Treaty was overshadowed by the financial crisis, which has occupied a considerable part of the EU’s time since 2009. The EU has also had to cope with the refugee crisis, the pandemic crisis, the rule of law crisis and the Brexit crisis. There has nonetheless been considerable legislative activity in other areas, and the EU courts have given important decisions across the spectrum of EU law. The seventh edition has incorporated the changes in all these areas. The book covers all topics relating to the institutional and constitutional dimensions of the EU. In relation to EU substantive law there is detailed treatment of the four freedoms, the single market, competition, equal treatment, citizenship, state aid, and the area of freedom, security and justice. Brexit is the rationale for the decision to have a separate UK version of the book. There is no difference in the chapters between the two versions, insofar as the explication of the EU law is concerned. The difference resides in the fact that in the UK version there is an extra short section at the end of each chapter explaining how, for example, direct effect, supremacy or free movement are relevant in post-Brexit UK. Law students in the UK need to know this, law students in the EU and elsewhere do not.
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European Union law concerns judges in the EU Member States in two ways: it either directly creates rights and obligations for the parties to the dispute before the court (direct effect), or it influences the meaning of the existing rules of domestic law (indirect or interpretative effect). The author analyses the second type of effects that EU norms have for national judges. The first part analyses indirect effect as developed and explained by the European Court of Justice and the obligations that it creates for the judges of the courts in the EU Member States. Beside the rules as developed by the European Court, the author is looking into the motivation behind such rules – what is achieved by them in the legal order of the EU, and why national courts have accepted them. The responses to these questions are relevant for the second part of the article, in which the author develops arguments for accepting interpretative effects of EU law in the legal order of the candidate country, Croatia being in such status at the moment. The author also points out the possible difficulties in importing the indirect effects into the Croatian legal order, especially those that are the result of differences in legal culture.
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