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.

From a pragmatic point of view there is a need to accept this confusion, and seek to derive the meaning of the phrase from its context. Some legal academics advise forgetting the issue, which is like running away, and does create further confusion. The courts use the phrase synonymously. The EC Treaty, however, remains silent about individual rights in national courts and only uses the term ‘direct applicability’ to refer to 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. For the purposes of explaining some of the issues surrounding EC law, this text will assume the artificial distinction between direct applicability and direct effect. It will assume therefore that ‘directly applicable’ applies to the process of automatic assimilation into the legal systems of Member States and that ‘direct effect’ refers to individuals deriving rights from Community law enforceable in national courts. Remember, however, that the terms tend to be conflated. These matters will now be set out as a series of tables and diagrams to assist you in the development of understanding.

2012 ◽  
pp. 158-159
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Point Of View ◽  
Individual Rights ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Running Away ◽  
Ec Law ◽  
Direct Applicability

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

5. Principles of direct applicability and direct effects

2017 ◽  
Author(s):  
Lorna Woods ◽  
Philippa Watson ◽  
Marios Costa
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Indirect Effect ◽  
Case Law ◽  
Direct Effects ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Directives ◽  
Direct Applicability

This chapter examines the scope of the doctrines of direct and indirect effect in the context of European Union (EU) law. These doctrines allow individuals to rely on EU law rights in national courts. It explains that while the Court of Justice (CJ) has emphasised that EU directives cannot have direct effect as against individuals (horizontal effect), its case law shows a range of developments which operate to undermine the simplicity of this position. The chapter suggests that granting individuals and national courts a role in the enforcement of Union law has ensured that EU law is applied and Union rights are enforced. It also considers questions concerning the idea of incidental direct effect, triangular situations and the consequences of the line of jurisprudence starting with the judgments in Mangold (case C-144/04) and Kücükdeveci (case C-555/07).

5. Principles of direct applicability and direct effects

2020 ◽  
pp. 111-143
Author(s):  
Marios Costa ◽  
Steve Peers
Keyword(s):  
European Union ◽  
Direct Effect ◽  
Indirect Effect ◽  
Case Law ◽  
Direct Effects ◽  
Eu Law ◽  
National Courts ◽  
Court Of Justice ◽  
Eu Directives ◽  
Direct Applicability

This chapter examines the scope of the doctrines of direct and indirect effect (including ‘direct applicability’) in the context of European Union (EU) law. These doctrines allow individuals to rely on EU law rights in national courts. It explains that while the Court of Justice (CJ) has emphasised that EU directives can apply against the state (vertical direct effect: starting with the Van Gend case), but cannot have direct effect as against individuals (horizontal effect), its case law shows a range of developments which operate to undermine the simplicity of this position. The chapter suggests that granting individuals and national courts a role in the enforcement of Union law has ensured that EU law is applied and Union rights are enforced. It also considers questions concerning the idea of incidental direct effect, triangular situations and the consequences of the line of jurisprudence starting with the judgments in Mangold (case C-144/04) and Kücükdeveci (case C-555/07).

National Courts as European Community Courts

Legal Studies ◽  
1994 ◽  
Vol 14 (2) ◽  
pp. 226-243 ◽  
Author(s):  
Imelda Maher
Keyword(s):  
European Community ◽  
Direct Effect ◽  
Legal Order ◽  
The Other ◽  
Community Rights ◽  
National Courts ◽  
Effective Community ◽  
The One ◽  
Community Courts

The national courts of the European Community are faced with a formidable task. On the one hand, judges are appointed and operate within their own domestic legal order, and derive their authority from their national constitutions. On the other hand, with the advent of the Community and the development of the doctrines of direct effect and supremacy, they have acquired a Community mantle and are responsible for the implementation of directly effective Community rights within the national realm. This paper examines how the role of the national courts has been created, what basis exists for it in the Treaty and the theoretical underpinnings of the role. In short, why are the national judiciary also Community judges: and to what extent can they be truly so?

CURRENT DEVELOPMENTS: I. COMMUNITY COURTS IN THE AREA OF JUDICIAL COOPERATION

2005 ◽  
Vol 54 (2) ◽  
pp. 489-497 ◽  
Author(s):  
Bruno Nascmbene
Keyword(s):  
The European Union ◽  
Judicial Cooperation ◽  
Community Law ◽  
National Courts ◽  
Court Of Justice ◽  
European Court ◽  
Free Movement Of Persons ◽  
Treaty Of Amsterdam ◽  
Community Courts

A. The area of freedom, security and justice and the role of the Court of JusticeOne of the subjects which has aroused particular interest in the study of the ‘area of freedom, security and justice’ introduced by the Treaty of Amsterdam as an objective of the European Union (EU) inherent in the principle of the free movement of persons (see the preamble to, and Article 2, the Treaty on EU) is the role of the European Court of Justice (Court). The interest is both theoretical and practical, because one of the main issues is the Court's jurisdiction to give preliminary rulings and thus relations between national and Community courts and the protection of the interests of individuals before national courts wherever there is a conflict between national and Community law and thus a question of interpretation of Community law arises in national proceedings. The Treaty of Nice, which came into force on 1 February 2003, altered the jurisdiction and organisation of the Community judicature and therefore affected the ‘area of freedom, security and justice’.1

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.

The Influence of Competency of Preschool Teachers in Fujian Province on Subjective Well-Being: The Mediating Role of Psychological Capital

2019 ◽  
Author(s):  
Xuguang Sun ◽  
Ailing Huang
Keyword(s):  
Direct Effect ◽  
Psychological Capital ◽  
Preschool Teachers ◽  
Well Being ◽  
Mediating Effect ◽  
Subjective Well Being ◽  
Positive Psychological Capital ◽  
Mediating Role ◽  
Mediator Variable

The intermediary effect interval of the preschool teachers' competence characteristics → positive psychological capital → the subjective well-being of the preschool teachers is (0.23—0.55), does not contain 0, and the effect amount is 0.35. The competency characteristics of preschool teachers → The direct effect interval of subjective well-being of preschool teachers is (0.05—0.36), excluding 0, and the effect quantity is 0.20, indicating that positive psychological capital as a mediator variable has the characteristics of preschool teachers and the subjective well-being of preschool teachers. Partial mediating effect, the ratio of mediating effect to total effect is 64.01%.

Service Quality and Repeat Purchase: The Moderating Effect of Perceived Value, and Satisfaction

2020 ◽  
Vol 11 (1) ◽  
pp. 5-5
Author(s):  
Aprihatiningrum Hidayati ◽  
Agus W. Soehadi ◽  
Aji Hermawan ◽  
Hartoyo Hartoyo
Keyword(s):  
Service Quality ◽  
Direct Effect ◽  
Purchase Intention ◽  
Perceived Value ◽  
Moderating Variables ◽  
Mediating Role ◽  
Prior Literature ◽  
Repeat Purchase ◽  
Purchase Satisfaction

The purpose of this study is to examine the direct and indirect effect of these determinants on repeat purchase. Competitive training industries impose pressure on managers to increase repeat purchase. Even though service quality and repeat purchase are well studied in prior literature, their determinants such as perceived value and satisfaction have not been fully investigated together as moderating variables. Most of literature stated both of perceived value and satisfaction as independent variables. Besides, most of literature consider purchase as an attitudinal (namely purchase intention), while this study focus on behavioural (namely repeat purchase). Data from a survey of 300 customers of public training are used to empirically evaluate the model. Results indicate that perceived value and the satisfaction have no direct effect on repeat purchase. However, these constructs indirectly influence repeat purchase through the mediating role of service quality. Satisfaction and perceived value play a major role in enhancing service quality, but do not directly impact repeat purchase. Interestingly, the direct effect on repeat purchases stems from service quality while recent researches suggest satisfaction is the antecedent. The findings suggest that training companies should invest more resources aimed at enhancing service quality through service delivery training for their employees. Even though prior research has considered the concepts studied here, this study aims to empirically evaluate a variety of antecedent factors that potentially affect repeat purchase. Relationships are established utilizing data collected in Indonesia (an increasingly important consumer market) which adds value to extant knowledge in this area. Keywords: path analysis, perceived value, repeat purchase, satisfaction, service quali

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