Sunday, February 9, 2020

Community law Essay Example | Topics and Well Written Essays - 2750 words

Community law - Essay Example For analyzing how the principle of indirect effect effectively bridges the gap between the vertical and the horizontal direct effects, the requirements for the applicability of the direct and indirect effects have to be considered. Direct effect is of two types, namely Vertical Direct effect or Individual versus the State and the Horizontal Direct effect, wherein the litigation is between Individuals. The concept of direct effect follows from the supremacy of European Law as formulated by the ECJ. This implies that if an EC Law has direct effect then such law grants rights to individuals, which must be upheld by the national courts. For any EC Law to have direct effect, it must satisfy two conditions. First, the relevant EC Law must be part of the recognized legal order, i.e., it must be a treaty article, a regulation or a directive. Secondly, the terms of the relevant EC Law must be such as are appropriate to confer rights on individuals. Directives have vertical Direct effect only if they have clarity, precision, unconditionality in as much as they fulfil the Van Gend criteria, independence in operation and its date of implementation should have been over and the person or body against whom the directive is pleaded must be public body1 or an emanation of the state2. This has created a duty to try to interpret national law consistently with EC Law, whether or not is has Direct effect. This is the underlying principle of the indirect effect, which establishes the supremacy of EC Law.The doctrine of direct effect enables national courts to apply EC Law. Uniformity is preserved through the preliminary reference procedure using which the national courts refer to the European Court of Justice for interpretation of EC Law. The ECJ is the sole authority for interpreting the various treaties of the EC. However, this dual court system is not conducive to a single uniform interpretational application of EC Law. Treaty Articles should be so worded that they have direct effect. They must further fulfil the Van Gend En Loos criterion and should have both the vertical as well as the horizontal direct effect. This criterion states that the EC Treaty should be applicable not only to the member states but to the individuals also. EC Treaty Articles will overrule any provision of the national law, which does not conform to it, irrespective of whether it was passed before or after the passing of the articles. Similarly, regulations of the EC Treaty are capable of having vertical and horizontal direct effect. Direct applicability of these regulations is enabled by Article 249 of the consolidated version of the European Treaties. These have to be enforced by the national courts. As such limitations were imposed on the doctrine of direct effect in order to ensure that national courts did not face difficulty in implementing community law. For the application of the principle of direct effect the conditions discussed above in respect of the directives, articles and regulations of the treaty should be complied with. Whenever these conditions can not be fulfilled and the direct effect in not applicable, the principle of indirect effect will take over and the implementation of EC Law through the national courts is ensured.In the case Marshall v. Southampton Area Health Authority3 (1986) the European Court of Justice ruled that the relevant Directive had direct effect as it satisfied the four requirements of direct effect. It contended that Marshall could rely upon this to proceed legally against the State. It was also held that the Health Authority, which was Marshall's employer, was part and parcel of the State as it performed a public function on behalf of the State. This case is an example of the horizontal direct effect and in this case the health authority was considered to be an emanation of the state. In the case of Foster v. British Gas the Marshall principle was extended and the European Court of Justice ruled that the Directive had direct effect even against the private British Gas. This decision was

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