The principle of direct effect.

Thèmes abordés

Principle direct effect

Résumé du document

The principle of direct effect is fundamental in community law. It means that Community law can directly create or confer rights or obligations towards individuals, who could, in particular conditions, evoke directly effective community law before their national courts. There are two constitutional conceptions about the integration of International law into the national law: the dualism and the monism. In the case ECJ, Costa v. ENEL (1964), the European Court of Justice affirmed that Community Law can only adapt to the monism because it comes from the communities' nature. Indeed, with the monism, the International law is automatically incorporated into domestic law without preliminary reception and transformation.

This case affirmed that the Community law is an integral part of the member states' legal systems. The norm's direct effect can be invoked vertically will be invoked just by an individual against a Member state) or horizontally (between individuals).

That is why we will observe the origin of the direct effect (I), the application's modalities of the direct effect in Community law (II), then the doctrine of supremacy in Community due to its closeness and its relation with the direct effect (III), and finally the demands and consequences of the principles of direct effect and supremacy (IV).

Extraits

[...] Thanks to the doctrine of supremacy, the direct effect is obligatory and immediately enforceable in domestic law. These two principles command an adaptation's effort by national judges, as part of executing community obligations. CASES ECJ, Costa v. ENEL (1964) ECJ, Van Gend Loos v. Nederlandse Administratie der Belastingen (1963) ECJ, Simmenthal (1978) ECJ, Politi, (1971) ECJ, Monte Arcosu (2001) ECJ, Franz Grad, (1970) ECJ, SACE, (1970) ECJ, Van Duyn, (1974) ECJ, Baker (1982) ECJ, Mark and Spencer (2002) ECJ, Marshall, (1986) ECJ, Marshall II, (1993) ECJ, Faccini Dori, (1994) ECJ, Arcaro, (1996) ECJ, Ratti, (1979) ECJ, Salumificio di Cornuda, (1979) ECJ, Koeffer and Procacci, (1990) ECJ, Demirel, (1987) ECJ, Kupferberg, (1982) ECJ, International Fruit Company III (1972) ECJ, Portugal v. [...]

[...] The directive can be invoked, if it was not be transposed during deadlines (there is an omission and the national judge will have to overcome the lack of transposition's national measures, enforcing directly the directive's dispositions), if there is an incorrect transposition (national measures will be expelled and entailed by of the directive's apposite dispositions), in an abnormal juridical context. Recently, the case Mark and Spencer (ECJ, 2002), recognized that directives could be also invoked when there is a correct transposition but a wrong application. If all elements are not spliced, the directive cannot prevail upon the adverse national act. It is possible to invoke the directive only for “vertical” disputes. Only States are concerned by the directives' restrictive nature but can not invoke them against individuals, like individuals between them[4]. [...]

[...] This doctrine is confirmed in the article 249 of the European Community Treaty. _ the appointment' transfer from Member states to the Community. _ the necessity to protect the uniform application of Community law. B. THE ABSOLUTE SCOPE OF THE SUPREMACY For the Court, all community norms must prevail over all the national norms. The doctrine of supremacy applies to treaty's dispositions (Costa case), regulations[10], directives[11], decisions[12] and international agreements[13]. The supremacy is carried out against all national norms, prior or posterior, including constitutional-wide (ECJ, Internationale Handelsgesellschaft, 1970). [...]

[...] The individual's remedy must be in effect[19] and effective. Individuals can enjoy of a judge in Chambers in order to protect temporarily rights that an individual claims to drag from Community law[20]. In the case Zückerfabrik (1991), the Court specifies that if all conditions are filled, the national judge could suspend the national act even if it is based on a community act in effect and indirectly the community norm will be suspended. Individuals are entitled to introduce an action of unwarranted perceived sums of Community law[21]. [...]

[...] In principle, it excludes the intervention of execution's national measures. But it is possible that the regulation subordinates the application of one of its stipulations for the intervention execution's national or community measures and there's no consequence on the direct effect. In every instance, national jurisdictions can control the conformity of these measures with the regulation's content. Recently, the case Monte Arcosu (ECJ, 2001), affirmed that the regulation's dispositions could not be invoked before the national judge by an economic operator when there are no necessary dispositions taken by the lawmaker to introduce them in domestic law. [...]