The operation of the Community legal system

Discuss the extent to which the doctrines of direct effect and supremacy can be described as essential to the operation of the Community legal system. Direct effect and the supremacy of community law are two key concepts in EC law, which I will discuss in some detail in this essay. European treaties are a primary source of EU law, with secondary sources of law building up more detailed legal rules. It is important to distinguish the fact that on their own, treaties do not give individual rights; this is left up to the European Court of Justice (ECJ) to decide on, and the use of Case Law.

The direct effect doctrine is a key concept used by the European Courts. This is significant as it refers to the capacity of EU law to be put into use by individuals in proceedings before national courts. A provision of EU Law is directly effective where it creates individual rights enforceable in national courts. Vertical creates individual rights against the state and horizontal creates individual rights against other individuals, this has important consequences for national sovereignty.

As said by J. Steiner in EC Law, 4. ed. , 1994, pg. 26: "If a provision of EC law is directly effective, domestic courts must not only apply it, but, following the principle of primacy of EC law must do so in priority over any conflicting provisions of national law". By virtue of direct applicability and direct effect, EU can introduce legislation that automatically forms part of English law, and that can create individual rights which the English courts must enforce raises the issue of sovereignty.

It is suggested that if EU objectives are to be achieved, EU law must prevail over inconsistent national law (Costa v ENEL [1964]) members states have, therefore, made a permanent transfer of some of their sovereign rights to the EU (Costa), in cases of conflict, national courts must give priority to EU law and dis-apply inconsistent national law (Minister of Finance v Simmenthal [1978]). I will now determine the difference between what is meant by directly effective and directly applicable.

Directly applicability is prescribed in Article 249 for regulations, and states that the regulation must be acknowledge in each member state's legal system without the need for individual validation by nation law, or without the need of any further implementation by that member state. Where the term directly effective means that a provision creates individual rights that a national court is required to protect. The case of van Gend en Loos v Nederlandse Administratie der Bellastingen formed the backbone and set out the doctrine of direct effect.

The case went to the European Court of Justice (ECJ) and the court held "this treaty is more than an agreement and clearly creates mutual rights by the contractual states". Therefore the conclusion of this case was that the ECJ went about a new way of creating law, which applied to all member states. This case was important not only because it was the first case but also due to the fact that the ECJ gave legal rights to individuals, where in the past international treaties only gave rights to governments. Thus, this case concluded that individuals have the power to enforce a particular article/treaty.

However referring to the case of Reyners v Belgium 1974, this case shows that the ECJ are prepared to depart from the conditions and apply a wider implication. Another case which illustrates that the ECJ are prepared to depart from conditions and apply it in a wide sense is seen in the Defrenne v Sabena case. Under article 119, this stated that the general principle was that men and women should receive equal pay for equal work. Was this article 119 directly effective? The ECJ held yes it was, eve though article 119 was only general and didn't define what equal pay or equal work actually was.

The only part of secondary legalisation that is directly applicable are regulations, this means that as soon as they are passed they have a direct effect. A regulation is described in the new article 249 as binding in its entirely and is directly applicable in all member states, taking immediate effect, without the need of further implication. If this new law is at conflict with any existing rule of national law then the EU law/regulation takes priority. Thus regulations take a uniform approach compared to directives that are much more flexible.

The extension of the principle of direct effect to directives has provoked some resistance from the domestic courts. (Francovitch) Directives in the case of van Duyn v Home Office, [1974] ECR 1337, [1975] 1 CMLR 1, the ECJ suggest three grounds on which one might base the conclusion that directives could be directly effective: the provision in question is sufficiently clear and precise; it establishes an unconditional obligation; the obligation is complete and legally perfect and its implementation does not depend on measures being subsequently taken by Community institutions or Member States with discretionary power in the matter.

(EC Law Manual 02/03). Referring to the case of Flynn 1995 on the internal market this was where the ECJ held that article 14 was not directly effective as it did not satisfy all three conditions laid down. The ECJ concluded that member states are required to take various actions to control entry into a country, and as not all of the conditions were meet, therefore the treaty article was not capable of being applied in a court.

However referring to the case of Rayners v Belgium 1974, this case shows that the ECJ are prepared to depart from the condition and apply a wider implication. Treaties articles can either have a horizontal direct effect , individuals being action against other individuals, or vertical direct effect against the state.