|
|
This is only a preview of the paper
Click here to register and get the full text.
Existing members click here to login
|
|
|
[3] and social law. ... Until the European Court of Justices decision in Van Gend en Loos and its extension in Van Duyn this seemed at most to be a problem of public international law and international politics.
However, with the proclamation of a European legal order and the transposition of European Law from the public to the private law arena, the ECJ embarked upon a course of action which has made Community legislation pertinent to every European citizen. ... This may prove to be a powerful political incentive, though more direct methods of bringing directives into national law should be considered. ... Taking a teleological approach the judges decided upon the direct application of article 12 in Dutch national law in order to confer legal rights on individuals. ... [7]
The ECJ came up with some very powerful reasoning on which to base its decision - described by Mancini and Keeling as "having the unique character of Community law". ... The question which must then be put is whether the Court in formulating the doctrine was dealing with all the political consequences and considerations which should have gone into such a decision, or was it to some extent concerned with finding legally consistent reasoning in order to base its decision? ...
In subsequent case-law Direct Effect has been extended, fuelled by the desire to give effect to individual Community rights, until the judges found that they could push it no more. This explains the current difficulties differentiating horizontal from vertical effect, the relationship between Direct and Indirect Effect and the slowness in revealing the extent of rights arising out of Community law. ... Against the efficacy of Direct Effect of Directives there is still a lack of knowledge and awareness concerning rights under EC Law, and further, the judicial device mitigates against automatically accruing rights, but requires active vigilance in order to identify rights which may otherwise be missed. ... [12]
Subsequent case-law dealing with Article 173(2) challenges to Decisions dressed up as Regulations have firmly embedded this principle in Community Law. ...
If instead the Commission, Member States and Council were allowed to proceed directly using Article 173, all of these problems would be avoided. ... The vigilant individual need not run the risks of litigation and can instead spend his or her time petitioning the Commission or lobbying his or her Member State! ...
Francovich Damages
The doctrine of Direct Effect is limited to those cases where the provision imposes a precise obligation on the Member State without the need for further action, and where vertical effect is being claimed. ... 19
Considering the question of liability, the Court again used the effective protection of Community rights to justify imposing liability on the State and again turned to Article 5 as a catch-all justification for providing redress for individuals aggrieved by non-implementation of Directives. ... The reasoning used, that Member States are obliged to make good damages caused to individuals by infringements of Community law for which they were responsible, seems to be capable of applying to faulty and incomplete implementation as well as non-implementation, public and private sector alike. ... Although the idea of estoppel (that a Member State cannot benefit from its own infringement of EC law) can theoretically justify the horizontal effect / vertical effect divide, the Court might like to consider the teleological implications of its judgments and whether the mechanisms it has developed should achieve the same result for all citizens alike. ... Combined with Marleasing[20] where the notion of "interpretation" could go anywhere, the only thing that can be said with certainty about the future reliance on Community rights is that we are unlikely to face a democratically straightforward system of Directives and EC implementing measures which can be readily used by all.
Approximate Word count = 2970
Approximate Pages = 11.9
(250 words per page double spaced)
|
|
|
|
|
|