The principle of directeffect 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 directeffect 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 directeffect (I), the application's modalities of the directeffect in Community law (II), then the doctrine of supremacy in Community due to its closeness and its relation with the directeffect (III), and finally the demands and consequences of the principles of directeffect and supremacy (IV).
Sommaire de l'exposé
I. THE ORIGIN OF THE PRINCIPLE OF DIRECT EFFECT
A. THE ORIGIN: THE CASE "VAN GEND LOOS"
B. THE ARGUMENT OF THE EUROPEAN COURT OF JUSTICE IN THE CASE "VAN GEND LOOS"
II. MODALITIES OF THE APPLICATION OF THE DIRECT EFFECT IN COMMUNITY LAW
A. THE DIRECT EFFECT OF TREATIES
B. THE DIRECT EFFECT OF REGULATIONS
C. THE DIRECT EFFECT OF DIRECTIVES
D. DIRECT EFFECT OF DECISIONS
E. DIRECT EFFECT OF INTERNATIONAL AGREEMENTS
III. THE DOCTRINE OF SUPREMACY IN COMMUNITY LAW
A. THE ORIGIN OF THE DOCTRINE: THE CASE "COSTA V. ENEL"
B. THE ABSOLUTE SCOPE OF THE SUPREMACY
C. THE DOCTRINE OF SUPREMACY' S CONSEQUENCES
IV. DEMANDS AND CONSEQUENCES OF THE PRINCIPLES OF DIRECT EFFECT AND SUPREMACY IN COMMUNITY LAW
A. TOWARDS MEMBER STATES
B. TOWARDS INDIVIDUALS
Extraits de l'exposé
[...] 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. [...]
[...] EC LAW Topic: the principle of direct effect 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. [...]
[...] DIRECT EFFECT OF DECISIONS According to the article 249 of the European Community Treaty, a decision is obligatory in all its elements towards its addressees: an individual can create rights and obligations towards this one. They can have a horizontal or vertical direct effect. On the contrary, decisions which concern Member states create obligations only towards these one and have just a vertical direct effect. But the dispositions' nature and terms must be examined to determine if they can produce a direct effect between addressees and third persons (ECJ, Franz Grad, 1970). [...]
[...] Steiner, Blackstone Press Limited of the European Community?, C. Vincenzi, Pitman Publishing http://en.wikipedia.org/wiki/Main_Page Treaty of Rome ECJ, Politi,1971 ECJ, Franz Grad,1970 ECJ, SACE,(1970) confirmed the prior case ECJ, Marshall, (1986); Marshall II, (1993); Faccini Dori, (1994) ECJ, Arcaro, (1996) ECJ, Ratti, (1979) ECJ, Salumificio di Cornuda, 1979; Koeffer and Procacci, (1990) ECJ, Demirel, (1987) ECJ, Kupferberg, (1982) ECJ, Politi, (1971) ECJ, Becker, (1982) ECJ, Salumificio di Cornuda, (1979) ECJ, Nederlandse Spoorwegen, (1975) ECJ, Commission v. Belgium, (1986) ECJ, Lorenz, (1973); Salgoil, (1968) ECJ, Lück, (1968) ECJ, Bozetti, (1985) ECJ, Palmisani, (1997) ECJ, Marshall ECJ, Factortame, (1990) ECJ, Deville,(1988) Many cases enunciated rapidly that the violation of Community law was susceptible to engage the state's responsibility (ECJ, Humblet, 1960; Commission v. [...]
À propos de l'auteur
DULAC L.RHDroit européenThe principle of direct effect.