Explain the concept of Direct Effect

Direct affect is part of the principle of Direct applicability, the process by which law that has been passed through the EU legal system becomes applicable in a member state. The treaty of Rome the foundation of European law is where all forms of legislation that can be created emanate from. By using the Treaty of Rome and abiding by the rules it sets out members of the commission can create legislation, including: Treaties, Regulations, Directives, Decisions, Recommendations and opinions. Here is a brief explanation of their meanings: Treaties- Are the primary source of law making.

They automatically become law as soon as they have passed through the Council and commission. Regulations, Directives, Decisions, Recommendations and opinions these are all known as secondary forms of law. Regulations: These have a general meaning and apply to all member states. Directives: This legislation passed to a specific state or a group of states and differs form a Regulation because the local authorities implement the legislation. Decisions: Are binding to those upon who they are addressed. Like a Regulation but more specific to the individual state.

Recommendations and Opinions: This is legislation which is less strictly implied and are merely there to advice the courts and help them to come to their decision based on the guidance of the European Council/ Commission. Now there is a sound explanation into source of EU law Direct I can explain what affect, Direct Effect has upon the proceedings of courts in member states, Due to direct applicability. European Law can be either HARD or SOFT depending on whether or not it can be used in a court of law in an action or in defence.

Ways of differentiating between hard and soft law come it to three main questions/points, which must be asked of the legislation. The legislation must be set out so that it is clear and precise, the country in which the case is being held or involved in must not have the choice of whether or not to implement the legislation as is the case when talking about Recommendations and Op inions passed by the EU Commission/Council. The legislation must also not have to be implemented by which I mean it has to pass through the states legislative process to become law.

When EU law is hard and complies with the three main regulations, which will make it applicable to the case. It can be separated into two types of effect. The first is known as Vertical Direct Effect and can be used in defence or as and action against a State or a body emanating from the state. A good example of Vertical Direct Effect used against a body is the Marshall v Southampton Area Health Authority (1986). Mrs Helen Marshall was retired by Southampton health authority at the age of 62, while male co-workers had the opportunity to work until the age of 65.

EU law states that the retirement age of men and women should be equal. Southampton Area Health Authority didn't implement the Directive of EU Law, but blamed the state for not doing so. Normally this case would have been upheld, but as Southampton Area Health Authority was an emanation of the state being part of the NHS. They had nothing to defend themselves with, they were trying to defend themselves with the mistake they made in not implementing the Directive. The ECJ held that because they were an emanation of the state there was no way they could blame the state for their mistake as it was down to them to implement it.

The second is described as Horizontal Direct Effect and can be implemented by an individual (person/group/company) upon another individual (person/group/ company). A good example of Horizontal Direct Effect in use is McCarthy's v Smith (1980). Mrs. Smith used Horizontal Direct Effect to take her employer to court. Her reason for doing so was that she was being paid less than a male worker for performing the same job. Mrs. Smith was unable to sue McCarthy under English Law because there the men who were paid more were not employed at the same time as Mrs. Smith, but using EU law Mrs.

Smith won the case because her employer was breaching the rules of a Treaty in not treating male and female employees equally. This case shows how and individual can use EU Law, when their states law fails. The source of all direct effect was first raised by the Van Gend en Loos v Nederlandse Administrative de Belastigen (1962). Direct effect now plays a massive part in the job s of EC lawyers. As once a piece of legislation has been passed and has direct effect the member state it applies to must implement it whether it conflicts with the member states individual domestic law.

Because direct has such a wide scope over the whole of the EU conflicts often arise over whether direct effect is applicable or not, the e first of these circumstances is Van Gend en Loos. The case was initially referred to the ECJ under article 234+by the highest Dutch court (The Dutch Administrative tribunal). They wanted to know whether Article1 2# (now 25) of the EEC treaty had effect in Holland at the time of the case. Meaning that they wanted to know if the platen based on art 12 could use EU law to defend himself.

The Holland official General Roemer said that Art 12 was far to complicated to be incorporated into Dutch law in the same way it had been applied to the other member states. The defendant (the customs authority) argued that context of Art 12 was directly linked to that of statutes and should therefore be this could not be used as it normally would to be enforced against individuals. This case produced the beginnings of Direct effect and the supremacy of EU law over all other forms of individual Member state Law.

"The vital role of Article 234 [177] was recognised by the Court in the van Gend en Loos judgement where it held that one of the reasons for upholding the direct effect of certain provisions of Community law was the existence of the reference procedure. With devastatingly simple logic the Court observed that there would be little point in allowing national courts to seek rulings on the interpretation of provisions of Community law if those provisions could not be invoked before them. If the doctrines of direct effect and supremacy are, as two distinguished authors have said, the 'twin pillars of the Community's legal system.

[cf.The Substantive Law of the EEC, by D. Wyatt and A. Dashwood, 2. ed. , 1987], the reference procedure laid down in article 234 [177] must surely be the keystone in the edifice; without it the roof would collapse and the two pillars would be left as a desolate ruin, evocative of the temple at Cape Sounion – beautiful but not of much practical utility" Art 12(Now 25) prohibits states form introducing between themselves any new customs duties on imports or exports on any charges of application could not be guaranteed.