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Flashcards in Direct Effect - Direct Effect of the Treaties Deck (18)
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How has the development of Direct Effect impacted upon the various range of EU legal instruments?

Overtime, the Court has developed and expanded the direct effect of EU law from the treaty itself to all legal instruments of European law..


What is the initial view on the Direct Effect of the European Treaties?

Upon first viewing there was no sign in the EU Treaties that its provisions would be directly effective.


How did the position on the Direct Effect of the European Treaties develop/change?

The courts, through their decisions and reasoning, particularly that in Van Gend en Loos, quickly asserted that Treaty Provisions may indeed have Direct Effect.


What key question was asked by the Dutch Tariefcommissie in the Van Gend en Loos Case?

It was asked whether a particular provision of the TFEU Treaty (in this case Article 30) has direct application in national law.


How did the Court respond to the the issue raised by the Dutch Tarefcommissie?

They said that the 'spirit', 'general scheme' and 'wording' of the provision would need to be considered to determine whether it could be directly effective.


How did the Court in the case of Van Gend en Loos seek to use the functions and objectives of the EU Treaty to explain/justify its Direct Effect?

They said that the objective 'to establish a Common Market' and the functioning of the relevant provision being of direct concern implied more than 'mutual obligations' between states - thus implying Direct Effect is possible.


How did the Court in the case of Van Gend en Loos explain the Direct Effect afforded to/arising from the Treaty in the context of it as 'a new legal order'?

They said that EU Law as 'a new legal order' had required States and the individuals comprising them to limit 'their sovereign rights', it was suggested that EU Law has the ability to 'confer rights upon them' as well as limit them.


What did the courts say about the instances in which Directly Effective Rights would arise from the Treaty?

They said that directly effective rights would arise 'not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way'.


What was the conclusion/decision of the court in the case of Van Gend en Loos regarding the Direct Effect of Article 30 of the TFEU?

It was held that, 'according to the spirit, the general scheme and the wording of the Treaty, Article [30] must be interpreted as producing direct effects and creating individual rights which national courts must protect.' Indeed, the clear and unconditional prohibition outlined by Article 30 makes 'the nature of this prohibition ... ideally adopted to produce direct effects'.


Overall, how did the court in the Van Gend en Loos case assert the (potential) direct effect of Treaty Provisions?

1. Noted that the 'spirit' and 'general scheme' of the provision in question should be considered to determine whether there can be Direct Effect or not.
2. Noted the generally implied position that the functions/objectives of the Treaty suggests it gives rise to more than 'mutual obligations' and thus may have Direct Effect
3. Noted that as a 'new legal order' for which the states had voluntarily limited their sovereignty, EU Law could also be said to be capable of conferring rights upon States and the individuals that comprise them (as well as restricting them)
4.Noted that where clear and unconditional obligations arose, the given provision may be capable of giving rise to Direct Effect.


What specific arguments/factors did the ECJ consider when determining if a provision of the Treaties was directly effective or not?

1. The notion that the EU Treaty is more than a contract between States
2. The implication that the Treaty holds Direct Effect stemming from the judicial power under Article 267 TFEU
3. The fact that European Law constitutes an autonomous legal system
4. The efficiency of European Law


Are their conditions on which provisions of the Treaty can be said to have Direct Effect?

Yes, not every provision of the European Treaties would have direct effect. Only those provisions that fulfil certain criteria can be applied by a court.


What conditions are there for Direct Effect of Treaty Provisions?

Provisions must be:
(1) clear & precise;
(2) unconditional.
Originally, it seemed that the Court also insisted that they must be
(3) formulated as prohibitions.


Is there a discrepancy between the theoretical conditions for Direct Effect and how the restrictions are applied in practice?

Seemingly, yes, based on the theoretical conditions set out, it seemed that only 'clear' and 'precise' rules could be dealt with by a national court (have Direct Effect). However, in practice, the European Court of Justice has declared a wide range of provisions directly effective – even though they are ambiguously worded, and leave considerable discretion to the European Legislator.


Which Articles illustrate the practical leniency of the courts when affording Direct Effect?

Articles 49 and 50 - the wording of these provisions are far from clear, precise and unconditional but they're awarded Direct Effect anyway.


What is the role of the European Treaties and how does it facilitate adoption of further legislative instruments?

The European Treaties are so-called framework treaties, that only provide the general structure while leaving the details to the European legislator. Thus, Article 288 TFEU authorises EU institutions to adopt various legislative “instruments”.


Will all of the legislative instruments provided for by the EU Treaties hold Direct Effect?

No, not all provisions within the Treaty will be directly effective.


What did Article 288 TFEU say regarding the Direct Effect of the various legislative instruments in provides for?

It says;
1. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
2. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
3. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
4. Recommendations and opinions shall have no binding force.