National Courts and Community Law

2003 ◽  
pp. 15-36 ◽  
Author(s):  
Paul P. Craig
Keyword(s):  
Community Law ◽  
National Courts

The Supremacy of Community Law in National Courts

1979 ◽  
Vol 42 (2) ◽  
pp. 220-223
Author(s):  
David Freestone
Keyword(s):  
Community Law ◽  
National Courts

scholarly journals From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?

2007 ◽  
Vol 9 ◽  
pp. 81-109 ◽  
Author(s):  
Alan Dashwood
Keyword(s):  
European Community ◽  
Direct Effect ◽  
Golden Age ◽  
Early Years ◽  
Community Law ◽  
Constitutional Order ◽  
National Courts ◽  
Court Of Justice ◽  
Intellectual Influence ◽  
European Community Law

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

The Duty of National Courts to Interpret Provisions of National Law in Accordance with Community Law

1991 ◽  
Vol 20 (2) ◽  
pp. 113-120 ◽  
Author(s):  
CHRISTOPHER DOCKSEY ◽  
BARRY FITZPATRICK
Keyword(s):  
Community Law ◽  
National Courts

Enforcing ECOWAS Law in West African National Courts

2011 ◽  
Vol 55 (2) ◽  
pp. 181-202 ◽  
Author(s):  
ES Nwauche
Keyword(s):  
Regional Integration ◽  
West African ◽  
Legal Systems ◽  
Economic Community ◽  
The West ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
The Law

AbstractOne of the constitutional challenges of regional integration is how to manage the limitation of national judicial sovereignty of member states to ensure that community law is recognized as superior to national law and is accordingly applied and interpreted by national courts at the instance of community citizens. This challenge arises from the national ordering of legal systems and the fact that states are the primary parties to agreements in which they limit their sovereignty in favour of the success of the community. This article examines the enforceability of the law of the Economic Community of West African States in the national courts of the West African states which comprise ECOWAS, with the aim of determining how this affects the integration goals of ECOWAS.

The Nigerian Constitution, the ecowas Treaty and the Judiciary: Interplay of Roles in the Constitutionalisation of Free Trade

2015 ◽  
Vol 4 (1) ◽  
pp. 43-78 ◽  
Author(s):  
Helen Chuma-Okoro
Keyword(s):  
Free Trade ◽  
Direct Effect ◽  
Community Court ◽  
Community Law ◽  
National Courts ◽  
Laws And Policies ◽  
Direct Applicability

This paper discusses the Nigerian Constitution and the ecowas Treaty to determine whether and how they support free trade as envisioned in the Treaty, and the role of the judiciary in the realisation of this objective. Focusing on the ecowas Community Court and Nigerian superior courts vested with jurisdiction over constitutional matters, it argues that specific constitutional norms and policies of Nigeria inhibit the realisation of the objectives of free trade as constitutionalised in the ecowas Treaty. Relying on the principles of direct applicability and direct effect, and the arguments developed around these principles in relation to the obligations of State parties to treaties, it argues further that Community law should be applicable in national jurisdictions and enforced by national courts. Thus, Nigerian courts and the ecowas Community Court both have jurisdiction to arbitrate matters arising from national laws and policies having the effect of inhibiting the ecowas objectives of free trade. It concludes that while the ecowas and Nigerian frameworks support the interplay of roles in the adjudication and enforcement of ecowas norms, this would depend on the extent to which some of the constitutional and policy constraints in question are addressed.

National Courts—the Powerhouse of Community Law

2003 ◽  
Vol 5 ◽  
pp. 1-13 ◽  
Author(s):  
David Edward
Keyword(s):  
Community Law ◽  
National Courts ◽  
Do So

It is always an honour to be invited to give a named lecture and especially to be invited to do so in this University. But it is an added privilege and also a pleasure to be invited to do so when one has known the person in whose honour the lecture has been named. It is particularly delightful to be able to do so with Lady Mackenzie-Stuart among us.

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