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

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 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.

In order to understand the development of the Community and the development of the Union it is necessary to bear in mind several matters: (a) The nature of the Union and the Community. (b) The treaties setting up the Community and then the Union (included here are the founding treaties, the accession treaties, and the amending treaties). (c) The institutions of the Community and latterly the Union. (d) The sources, types and differing effects of Community law. (e) The effect of Community law or EC law on the English legal system. These areas will be considered next. 5.5.3 The nature of the European Community The Treaty of Rome 1957 states the main principle of the Community as the maintenance of economic and social progress, and naturally flowing out of this primary principle are a number of other principles aiming to unite Member States for the purpose of social, economic and legal union. It specifically states it is aiming to lay ‘the foundations of an ever closer union’. Part of the difficulty that can occur in attempting to understand the Community perhaps lies in the fact that it was never a specific place but a way of trading and of relating financially, legally, politically, socially and culturally.

2012 ◽  
pp. 148-148
Keyword(s):  
European Community ◽  
Legal System ◽  
Social Economic ◽  
Social Progress ◽  
Main Principle ◽  
Member States ◽  
Community Law ◽  
Treaty Of Rome ◽  
Ec Law

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

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.

scholarly journals The Binding Force of Babel: The Enforcement of EC Law Unpublished in the Languages of the New Member States

2007 ◽  
Vol 9 ◽  
pp. 43-80 ◽  
Author(s):  
Michal Bobek
Keyword(s):  
European Union ◽  
Central Bank ◽  
European Central Bank ◽  
The European Union ◽  
Member States ◽  
Community Law ◽  
New Member States ◽  
European Central ◽  
Binding Force ◽  
Ec Law

On 1 may 2004, 10 new Member States joined the European Union. This meant inter alia that, save for the express derogations provided for in the Act of Accession, the entire mass of Community secondary legislation became binding in the new Member States. This principle of the immediate effects of Community law in the new Member States was provided for in Article 2 AA: From the date of Accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before Accession shall be binding on the new Member States and shall apply in those States under the conditions laid down in those Treaties and in this Act.

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.

Introduction

2018 ◽  
Author(s):  
Susanne K. Schmidt
Keyword(s):  
Member State ◽  
Political Science ◽  
Direct Effect ◽  
Case Law ◽  
Political Order ◽  
Individual Rights ◽  
Member States ◽  
Judicial Policymaking ◽  
The Impact

An intergovernmental treaty that has specific aims for cooperation has a very different thrust than national constitutions, which are designed to allow political order and to safeguard individual rights. I argue that the literature in political science on the ECJ is too focused on showing how member states can influence the Court. It overlooks the supranational outcomes that ensue when the Treaty contains policy prescriptions, while being constitutionalized through supremacy and direct effect. Through its case law, the Court provides additions to the Treaty. To demonstrate the importance of judicial policymaking through case-law development and codification, three steps are fundamental to the book’s argument. First, we have to understand both case-law development and the impact of the Court. Secondly and thirdly, we must ask how the ECJ’s case law may make a difference to policymaking at both the European and member-state levels.

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