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In Developing the Concept of Direct Effect, the Court of Justice Has Shown Itself to Be an ‘activist Court’’. Critically Discuss the Accuracy or Otherwise of the Above Statement.

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In developing the concept of direct effect, the Court of Justice has shown itself to be an ‘activist court’’.

Critically discuss the accuracy or otherwise of the above statement.

“The Community principle of direct effect means that appropriately worded provisions of (EC law)...may give rise to individual rights which national courts are bound to safeguard, even though there may have been no national implementing legislation, or only incomplete national legislation. The ECJ decides when the principle of direct effect applies, and national courts translate the principle into practical reality in concrete cases. It can be a formidable partnership.” The aim of this essay is to critically look at the development of direct effect and how the court has ensured that individuals maybe be able to invoke treaties in front of a national court against a national government or public body and against another individual. The essay would look at direct effect and how it applies to treaties, regulations, directives and decisions using the major cases to show the development.

The concept of direct effect is not mentioned in any treaty which makes it a creation of the European Court of Justice. The principle gives individuals the opportunity to invoke an EU law provision in front of a national court. The concept of direct effect was developed in the Van Gend en Loos case where the judges of the European Court of Justice held that “since the treaty was clearly intended to affect individuals, even though it made no specific mention of rights, it must clearly be capable of creating rights that would be enforceable by individuals in national courts”.

The ECJ in Van Gend en Loos stated that not all treaties would be possess direct effect that they have to meet a criteria to be able to have direct effect. The criteria set out in Van Gend en Loos and confirmed in Reyners v Belgian State are as follows: the legal provision must be clear and precise. The courts felt that for a law to be enforceable, both parties involved should be adequately aware of their rights. In Defrenne v Sabena (Case 43/75), the ECJ was satisfied that “men and women shall receive equal pay for equal work’ was clear and precise enough to have direct effect although the court would have to define equal pay and equal work. The second provision is that it must be unconditional or non-dependent. A provision is unconditional when it does not depend on the discretion or judgement of another body so as to be effective. The treaty or legislature must also give an identifiable right to enable individuals enforce the rights. There are two types of direct effect, horizontal and vertical direct effect.

In Defrenne v Sabena (Case 43/75), the court introduced horizontal and vertical direct effect. Horizontal direct effect allows an individual to invoke Eu law against another individual in front of a national court while vertical direct effects allows an individual to invoke an EU law against a national government in front of a national court. Direct effect was developed in such a way to make it applicable to most types of EU law both primary and secondary laws. Under the Art 288 of the Treaty on the Functioning of the European Union , regulations are both of general application and directly applicable. The key case was Leonesio -v- Ministero Della Agricoltura E Foreste; ECJ [1972] the regulation in this case had to do with the provision of subsidy for dairy farmers that wanted to slaughter their dairy herds. After the applicant killed her cows in accordance with the regulation, she was being refused the subsidy she was entitled to the ECJ held that “ the regulation did indeed conform to the Van Gend en Loose criteria, was very precisely stated and in no way ambiguous, as a result of which it was also directly effective and enforceable”. In the above scenarios, direct effect is seen to work perfectly however in regards to Directives, there have been problems with the enforceability of direct effect. This is because although directives are meant to be binding as to the results they produce, it is left to the member state to choose the method and form in which they will achieve this obligation. Directives cannot on their own create rights because they do not automatically become laws in member states as the member states have the prerogative to acheave the goal of the directive in whatwever way they please

This problem was first brought to light in Van Duyn v Home Office [1974] ECR 1337 . this was the first case to be reffered to the ECJ by the United Kingdom. Miss Van Duyn was denied entry into the UK by the Home office due to her religion (scientology) which made her undesirable. She brought a claim against the UK uunder Art 45 in Directive 64/221 which allowed for free movement of workers within Europe.

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"In Developing the Concept of Direct Effect, the Court of Justice Has Shown Itself to Be an ‘activist Court’’. Critically Discuss the Accuracy or Otherwise of the Above Statement." EssaysForStudent.com. 02 2017. 2017. 02 2017 <https://www.essaysforstudent.com/Miscellaneous/In-Developing-the-Concept-of-Direct-Effect-the/105287.html>.

"In Developing the Concept of Direct Effect, the Court of Justice Has Shown Itself to Be an ‘activist Court’’. Critically Discuss the Accuracy or Otherwise of the Above Statement.." EssaysForStudent.com. EssaysForStudent.com, 02 2017. Web. 02 2017. <https://www.essaysforstudent.com/Miscellaneous/In-Developing-the-Concept-of-Direct-Effect-the/105287.html>.

"In Developing the Concept of Direct Effect, the Court of Justice Has Shown Itself to Be an ‘activist Court’’. Critically Discuss the Accuracy or Otherwise of the Above Statement.." EssaysForStudent.com. 02, 2017. Accessed 02, 2017. https://www.essaysforstudent.com/Miscellaneous/In-Developing-the-Concept-of-Direct-Effect-the/105287.html.