Direct effect

International Business Law

Assignment

Manuel Sarasa San José

Manuel Sarasa San José

PART ONE

(Question One)

‘In an attempt to address the problem of ineffective individual rights, the Court of Justice developed principles whereby an aggrieved national of a Member State would be afforded rights based upon Union law which could, in certain circumstances, be enforced in the courtsof Member States. These rights are enshrined in the three principles of direct effect, indirect effect and state liability (also referred to as Francovich damages). Law of the European Union; J. Fairhurst; 2010 Discuss (Glyndwr University, 2010).

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Manuel Sarasa San José

Introduction PART ONE

One of the basic principles of constitutional law is the direct effect. This principlecreates rights for individuals to be argued before the Community and national legal bodies. This legal principle, the Court of Justice of the European Union increases the effectiveness of Community Law and protects the rights of individuals, by direct effect makes it possible to resist a European standard to internal texts of each State. In addition to this principle I consider below other words as theindirect effect, Francovich Liability and Factortame III Liability, which were added later to deal with the various unforeseen conflicts.

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Manuel Sarasa San José

The direct effect is a principle, which was created to protect individuals from laws
imposed by their states which go against European laws. In 1962 the Van Gend en Los sentence was created, in this case the Dutch Governmentestablished a customs duty on imported chemicals, in violation of an article in the Rome Treaty o Rome (European law). This was the way through which direct effects were implemented within the European Union. The application of direct effect must have specific conditions because the provision must be clear and unambiguous and must be unconditional in it's application . There are several sources ofCommunity law which have the direct effect such as treaties, regulations, decisions and directives. Regarding the direct effect on the decisions, I have to make a clarification about whether this is focused on the Member States or individuals, because if the decisions are directed at the Member States they have the same rules as directives but if the decision is directed at individuals will havethe same system of regulations (always have direct effect) (Galera, 2008). Directives are a legal instrument with two distinct faces: the Directive itself comes from the European institutions and implementing measures that each State of the European Union adopts. The forceful entry of directives does not imply a direct effect, but must perform an act of adoption of national measures to meet theoutcomes set by the Directive and communicate the measures to the Commission, this is called transposition (Galera, 2008). Directives are not directly applicable acts because states retain jurisdiction as to the ways and means of their implementation. Therefore, to develop their full effect the directives need national implementing measures. Then, if a policy meets the two conditions above it willbe positioned to have vertical direct effect. We must distinguish between horizontal direct effect, which is the possibility of the individual of invoking the provisions of Community law against other individuals and the vertical direct effect which is the possibility of the individual, of invoking the provisions of EU law against Member States (Abellán, 1994). However, to avoid the problem of anindividual faced with other individuals (the horizontal direct effect), the court of justice has created the concept of indirect effect, the Francovich Liability and Factortame III Liability (Glyndwr University, 2010). The indirect effect is created when a directive can be used to interpret the national law, if the directive is unclear or the action has a horizontal effect (Glyndwr University,...