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Theory of direct effect

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  1. Introduction
  2. Origin and criteria of the theory of direct effect
    1. Origin
    2. Criteria
  3. Application of the theory to the different acts of the EC
    1. Application to the founding treaties
    2. Application to the secondary sources
  4. National reactions
    1. Italy
    2. United Kingdom
    3. France
  5. Conclusion

Born into the International order, the European Community law can touch people only through the juridical order of its Member State.
Therefore arises the question about the relationship between EC law and domestic law.
The EC law concerns much more directly individuals than the international law. One of the main issues of the EC law is the invocability of EC law by the individuals in domestic courts.
Normally, EC law has to be implemented in the domestic legal order of the Member States but there arises a difficulty: individuals are bound by the implementation of its State which can be quite different from the EC law ? or inexistent.
The ECJ thinks that the EC legal order has a specific relationship with the legal order of its Member State which is characterized on the one hand by the primacy of EC law (ECJ Costa v. Enel of the 15th July 1964, 6/64, R. p.1141), and on the other hand by the autonomy of EC law (ECJ Van Gend en Loos 5th February 1963, 26/62, R. p.1). The plain effect of the EC law being the consequences of the former principles and being necessary for them to really exist, the ECJ created the theory of direct effect. By this theory, the ECJ allowed the direct invocability of dispositions of EC law by individuals. Indeed, States are not always very compliant with the implementation of the EC law, thus for the EC law to have a plain effect, the States level in the implementation has to be skipped.
The first purpose of the ECJ is the efficiency of the EC law. This efficiency has been firstly concentrated on the individual's rights. But afterwards, this goal widened and incorporates other ?sub-goals? such as the protection of environment and to make a more real EU for individuals through an EC law they can directly attain. But the purpose is still the efficiency of the EC law.
The theory of direct effect is a very good tool for this goal to be achieved. Indeed, direct effect means that the EC rules produced effects on individuals without any intervention of the States.

In order to have a better understanding of this theory and its consequences, we will see in a first part its origins and criteria, in a second part the application of this theory to the different acts of EC law, and finally some national reactions towards the theory of the direct effect.

[...] So we will take three different ways of reception of the theory of the direct effect in three Member States. A. Italy The Italian Constitutional Court recognized the direct effect theory in the Frontini decision of the 27th December 1973 CDE 1975.114 as a result of the very nature of the EC law. So, the Italian reception of the direct effect theory has been quite perfect taking into account their lack of resistance toward this theory. B. United Kingdom Considering the particular relationship between UK, which is a traditional dualist country, and EU, one can say that the reaction of the UK regarding the theory of the direct effect could have been expected. [...]


[...] Normally, the regulation is invocable in domestic courts without any distinction between the horizontal effect and the vertical one Decisions. One can distinct between the decisions addressed to non-State actors and decisions toward a State. - Decision addressed to a non-State actor: They are directly applicable to the physical or moral person to which it is addressed. They have an individual scope and are obligatory for the destinator in all its elements. They have a direct effect because of their notification to the destinator. These decisions are invocable in domestic courts as regulations are. [...]


[...] But the ECJ, in the Van Gend en Loos case (which was about the direct effect of the Rome's treaty), created with the direct effect theory a mean for a private person to invoke directly the provisions of a treaty even if it is not yet in the domestic legal order of its State. The conditions for a treaty to have a direct effect are those of the Van Gend en Loos case: sufficiently clear, precise and unconditional, nevertheless it is difficult to satisfy these criteria and thus the case law is changing. [...]

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