The doctrine of direct effect under the European Law is a principle that allows the EU laws, regulations directives and treaties to apply directly to the nationals of the Member States of the EU without necessarily being incorporated into the national laws through acts of legislation (Ward 74). Under this doctrine, national courts are under a strict obligation to recognize and eforce the EU laws to confer rights on the nationals of those states where their rights have been infringed by their states or state corporations (Conway 216). According to Fisher, this doctrine deals with the determination of the extent to which the EU law provisions may be invoked by legal or natural persons in the EU member states (1). First enunciated in the landmark case of Van Gend en Loos v. Nederlandse Administratie der Belastingen (1963) by the European Court of Justice, this doctrine has continued to gain momentum and criticisms at the same time from legal quarters.
The ECJ has continued to expand the scope of the principle in subsequent cases, with the effect that it now applies to directives and regulations in certain circumstances where it used not to apply. Even though the ECJ in the Van Gend en Loos case stated the particular conditions and criteria that must be present before this doctrine can apply, it has been applied so widely, the latest being the decision in Case C-14404 Mongold (2006). The ECJ has also categorized the doctrine into vertical and horizontal direct effect in the case of Defrenne v. SABENA (1976). Whereas the vertical direct effect relates to the relationship between the national and EU laws, the horizontal direct effect concerns the link between individual persons, whether natural or legal (Smith 45). However, in spite of the apparent importance of this doctrine in ensuring that individual rights in EU Member States are protected against governmental violations, its effectiveness and continued relevance has continued to be questioned (Chalmers, Davies & Monti 292). Does it really matter any longer or it has outlived its relevance and significance and therefore needs to be faced out? In this paper, it is argued that this doctrine of direct effect no longer matter and has is ineffective.
In the recent case of Mangold v Helm (2005) C-144/04, Mr. Mongold, a 56-year-old German was an employee under a fixed term contract which was a on a permanent full time basis. A piece of legislation known as the Employment Promotion Act was introduced allowing fixed term contracts only valid for a maximum of two years. Any such contract above that period would be unlawful unless there was an objective justification for them. The German government later did away with this protection later for employees who were above 60years in an employment reasons. The law was further amended changing the protection age to 52 years. According to Mr. Mongold, this decision of removing protection of employment for employees above the age of 52 years was an unjustified discrimination and applied to the ECJ. The ECJ held that this German law was a contravention of the Employment Equality Framework EU Directive despite the fact that its implementation date was 2006 and not 2005 when the case was lodged. According to the ECJ, this decision by the German government offended the international law principle of the elimination of discrimination on any basis including age. It went on to hold that in cases where national laws of EU Member States contradict or conflict with EU laws such as Directives, national courts have the obligation to strike down such laws. The ECJ certainly took too far the applicability of this doctrine when it held here that it could apply even in cases where the effective implementation date of a certain EU directive has not been reached.
While some legal scholars have lauded this decision, others have argued that the ECJ went too far with the applicability of this principle of direct effect to the point of being arbitrary and prejudicial to the EU Member States. Using the ECJ judgment in Kraaijeveld RV v Gedeputeerde (1996), Prechal has argued that the continued application of this principle of direct effect of EU laws has moved from rights-creation to confusion (1052). This is because it is not clear which provisions of the EU law should be directly applicable and which treaties should be self-executing. Moreover, this author argues that there is some ‘chameleon nature’ of the conditions necessarily for direct effect doctrine to apply. According to Prechal, the requirements that the provisions must be sufficiently precise an d unconditional for the direct effect doctrine to apply are relative since they will depend on what is being sought by the individual relying upon the EU community law (1062). He argues that “direct effect can do more harm than good” (Prechal 1068) when applied blindly and strictly. Moreover, the strict application of this principle is likely to lead to interpretational challenges for national courts. Thu, the broadening of the scope and application of this doctrine according to him has made it obsolete and ineffective.
Moreover, according to Robin-Olivier, one challenge of application of direct effect in EU member states is the apparent conflict with the national Constitutional law of these states which should be supreme. Further to this, the author argues that the criteria for selecting which of the EU law provisions should be subject to this doctrine still remains problematic. Additionally, this doctrine has become ineffective due to the very limited discretion that it gives national courts with regards to its applicability. Hence, Robin-Olivier argues that it is high time states reconsidered the impacts of the EU law on member states in order to avoid decline of individual rights and freedoms that result from its enforcement. Furthermore, Samuilytė-Mamontovė argues that the doctrine of direct effect of EU directives offends the principle of legal certainty as it creates lack of clarity in its application in relation to national laws (58). According to this author, the extension of the applicability of this principle to EU directives has created ambiguities in most legal systems in the EU region. Baudenbacher also argues that there are bound to be problems or challenges with the implementation of some of the ECJ decisions regarding the application of direct effect due to impracticality of so doing. In addition to this, the continued application of this doctrine in its widest sense may force states to avoid compliance with the EU laws as it creates unreasonable pressure of implementation on them (388). Ortlep and Verhoeven have also argued that the doctrine of direct effect on the primacy of EU law over national laws conflicts with the national autonomy of these states (2). This doctrine and the extent or scop of applicability to member states of the EU should therefore be rethought (Prinssen and Schrauwen 96).
Works Cited
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