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“The doctrine of direct effect constitutes one of the fundamental pillars of the EU legal order”- Comment

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  1. Introduction
  2. EU legal order
  3. Conclusion

The principle of direct effect is an essential part of the EU legal order, granting citizens rights derived from EU provisions that they may enforce before national courts. In this essay, I will discuss the development and significance of this doctrine as well as whether, and if so why, it could be considered as one of the fundamental pillars of the EU legal order as the statement suggests. First, I will briefly explain the concept of direct effect, distinguishing between horizontal and vertical direct effect. Second, I will focus on how it was expanded over time, gaining in importance. I will also refer to how the conditions under which primary or secondary EU law could be directly changed with case law over the past decades, mentioning some key cases.

It is essential to understand the development of the principle in order to be able to assess its initial impact and whether it is part of the fundament of the EU legal order not only today, but also whether this was also the case when it was established. Third, I will discuss its impact today, especially in combination with the principle of supremacy. I will conclude that the doctrine of direct effect was rather limited when it was established, but became increasingly important over time and eventually became one of the fundamental doctrines underlying the EU legal system. Today, it is essential for legal cohesion of the EU and for furthering European integration.

The principle of direct effect stipulates that under certain conditions which I will outline later provisions of European Union primary and secondary law can be invoked by citizens of Member States before respective national courts. The DeFrenne vs. Sabena (1976) case led to the reconceptualization of the principle, distinguishing between vertical and horizontal direct effect (Russo, Tutorial 7, 2011).

[...] Therefore, at that time the principle of direct effect could hardly be considered one of the fundamental pillars of the EU legal order due to is highly restricted scope. However, this changed when the Court of Justice expanded the principle in the 1970s and relaxed the criteria under which it applied. In the Van Duyn case in 1974, the Court relaxed the requirement that the provision had to be unconditional, that is that it had to set out an absolute entitlement. [...]

[...] Discuss the impact of either decision on the European Judicial System and its functioning.? You are encouraged to document and illustrate your position with reference to one or two case law of the Court. 2000 words The Advocate General plays a key role in the Judicial System of the European Union. In this essay, I will highlight the importance of this position as well as point out the consequences of expanding or suppressing it. First, I will explain the role of the Advocate General as well as mention some aspects concerning appointment. [...]

[...] It would deprive the EU judicial system of one key source of independent and impartial opinion and guidance, and as a consequence judges might find it harder to make sophisticated judgements that fully consider the different aspects of each case. This might eventually lead to lower quality of the EU judicial system as well as lower levels of trust in it by European citizens. Clearly, the functioning of the EU judicial system would change radically as well by the abolition of the office of the AG. [...]

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