Содержание
- 2. MAIN QUESTIONS Which source of law will take precedence in case of conflict between EU law
- 3. ORIGINAL SITUATION (THE TREATIES) The founding Treaties did not directly address these questions. The Member States
- 4. ORIGINAL SITUATION (THE TREATIES) (2) In dualist States (such as the UK), international law is only
- 5. ROLE OF THE EUROPEAN COURT OF JUSTICE In monist States (such as NL, FR), once ratified,
- 7. THE DOCTRINE OF SUPREMACY OF UNION LAW
- 8. THE CREATION OF THE DOCTRINE OF SUPREMACY While the Court did not address the issue of
- 9. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY The implications of the doctrine of supremacy were not
- 10. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (2) The Court provided a number of arguments in
- 11. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (3) In addition, the Court argued that the obligations
- 12. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (4) While Van Gend and Costa dealt with the
- 13. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (5) The ECJ made it clear that EU law
- 14. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (6) In Case 106/77, Amministrazione delle Finanze dello Stato
- 15. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (7) This judgment is important, in that it confers
- 16. THE DEVELOPMENT OF THE DOCTRINE OF SUPREMACY (8) A further example of the jurisdiction of national
- 18. THE DOCTRINE OF DIRECT EFFECT OF EU LAW
- 19. THE CREATION OF THE DOCTRINE OF DIRECT EFFECT The ECJ provided a ground-breaking judgment in Case
- 20. THE CREATION OF THE DOCTRINE OF DIRECT EFFECT (2) In order to arrive at its decision,
- 21. THE CREATION OF THE DOCTRINE OF DIRECT EFFECT (3) In other words, the Court of Justice
- 22. THE CONDITIONS FOR DIRECT EFFECT (VAN GEND CRITERIA) The Court explained in Van Gend that not
- 23. VAN GEND CRITERION N. 1 clear and precise it is logical that if law is to
- 24. VAN GEND CRITERION N. 2 unconditional a provision will not be unconditional if the right it
- 25. VAN GEND CRITERION N. 3 not subject to any further implementing measures on the part of
- 27. DIRECT EFFECT OF DIFFERENT SOURCES OF UNION LAW
- 28. DIRECT EFFECT AND TREATY ARTICLES The question of whether the principle of direct effect applies to
- 29. DIRECT EFFECT AND REGULATIONS Article 288 TFEU would appear to give regulations direct effect. The Article
- 30. DIRECT EFFECT AND DECISIONS Decisions, as regulations, are directly applicable, but Art 288 TFEU provides that
- 31. DIRECT EFFECT OF INTERNATIONAL AGREEMENTS In an attempt to ensure that Member States respect any commitments
- 32. DIRECT EFFECT AND DIRECTIVES This is a particularly controversial area. Article 288 TFEU provides that: ‘A
- 33. DIRECT EFFECT AND DIRECTIVES (2) The wording of Art 288 TFEU seems to preclude directives from
- 34. DIRECT EFFECT AND DIRECTIVES (3) The Court has argued that this approach results in directives being
- 35. DIRECT EFFECT AND DIRECTIVES (4) In response to such criticism, the ECJ has explained that directives
- 36. DIRECT EFFECT AND DIRECTIVES (5) The ET made a preliminary reference to the ECJ (under Art
- 37. DIRECT EFFECT AND DIRECTIVES (6) This requirement has the unfortunate effect of discriminating between individuals who
- 38. DEVELOPING THE EFFECTIVENESS OF DIRECTIVES
- 39. VERTICAL DIRECT EFFECT: A WIDE INTERPRETATION OF ‘STATE’ To address the problem highlighted above, the ECJ
- 40. VERTICAL DIRECT EFFECT: A WIDE INTERPRETATION OF ‘STATE’ (2) In Case C-188/89, Foster v British Gas,
- 41. VERTICAL DIRECT EFFECT: A WIDE INTERPRETATION OF ‘STATE’ (3) This conclusion is supported by the Court
- 42. INDIRECT EFFECT OR THE ‘INTERPRETIVE OBLIGATION’
- 43. INDIRECT EFFECT The ECJ’s refusal to allow the horizontal direct effect of directives has without doubt
- 44. THE BASIC PRINCIPLE OF INDIRECT EFFECT In Case 14/83, Von Colson, the Court reminded Member States
- 45. THE BASIC PRINCIPLE OF INDIRECT EFFECT (2) This judgment has been the subject of much academic
- 46. THE DEVELOPMENT OF THE DOCTRINE OF INDIRECT EFFECT The Von Colson judgment left a number of
- 47. THE DEVELOPMENT OF THE DOCTRINE OF INDIRECT EFFECT (2) In Case C-106/89, Marleasing, the ECJ confirmed
- 48. THE DEVELOPMENT OF THE DOCTRINE OF INDIRECT EFFECT (3) However, the decision in Marleasing has been
- 49. THE DEVELOPMENT OF THE DOCTRINE OF INDIRECT EFFECT (4) Academics have highlighted that indirect effect is
- 50. ‘INCIDENTAL’ OR ‘TRIANGULAR’ EFFECT Despite the Court of Justice’s decision in Marshall (No 1) prohibiting the
- 51. ‘INCIDENTAL’ OR ‘TRIANGULAR’ EFFECT (2) Once more, the ECJ cited the enhanced effectiveness of directives as
- 52. ADDITIONAL THOUGHTS ON THE SOURCE OF AN EU RIGHT OR OBLIGATION While the matter of the
- 53. STATE LIABILITY FOR DAMAGES (THE FRANCOVICH PRINCIPLE)
- 54. In view of the limitations placed on the direct effect of directives, and despite the possibility
- 55. In Cases C-6 and 9/90, Francovich and Bonifaci v Italy (Francovich), the Court of Justice held
- 56. THE DEVELOPMENT OF STATE DAMAGES The Francovich ruling has been of immense importance to Union law
- 57. Once more, however, the Court explained that certain criteria must be fulfilled: the rule of law
- 58. THE COURT OF JUSTICE’S INTERPRETATION OF ‘SUFFICIENTLY SERIOUS’ With regard to what will constitute a ‘sufficiently
- 59. EXPANSION OF THE PRINCIPLE TO ACTIONS AGAINST PRIVATE PARTIES In addition to the Francovich principle being
- 60. TO RECAPITULATE:
- 61. DIRECT EFFECT The principle of direct effect Developed by the Court of Justice in Van Gend
- 62. DIRECT EFFECT OF UNION LAW (Note: EU law also enjoys SUPREMACY) What is the source of
- 63. ALTERNATIVES TO DIRECT EFFECT Where direct effect is not available, consider: Indirect effect (interpretive obligation): National
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