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Community law has many sources, primary; the founding treaties, agreements with third states, agreements between the Member States, and the general principles of law recognised by the European Court of Justice (ECJ) and the Court of First Instance. And secondary community acts; regulations, directives, decisions and recommendations. The essential characteristics of European Community law are those of primacy which provides that community law prevails over national law where there is a conflict and as illustrated by the ECJ case; Costa v.Enel [1964] ECR 585 and of direct effect which is the principle that community law can give rise to rights which can be enforced in national courts by individuals; even if it has not been effected by national law; as was the case with Van Gend en Loos [1963] ECR 1. However not all provisions have direct effect; only those which are sufficiently operational may so it is a matter of interpretation.
Article 249 (ex 189) EC provides for the different types of community acts; regulations are said to have ‘general application’ and being ‘binding in its entirety’; directives are ‘binding as to the result to be achieved’; a decision will be ‘binding in its entirety upon those to whom it is addressed’; and recommendations and opinions are said to have ‘no binding force’.
Directives have the purpose of setting out common aims for member states. ... The communities ability to legislate through directives allows it valuable flexibility and directives are particularly useful in the harmonization of laws within certain areas and in the introduction of complex legislative change. Directives are important legal instruments which are in part an embodiment of the principle of subsidiarity which is intended to regulate the lawfulness of the exercise of community competence; article 5 EC provides that ‘in areas which do not fall within (the Communities) exclusive competence, the community shall take action in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states, and can therefore by reason of the scale or effects of the proposed action be better achieved by the community’. ... The force of directives has been further amplified by decisions of the ECJ; which has held that directives can have direct effect and thus enabling individuals to rely on them, at least in actions against the state. Directives are binding upon member states and not individuals, until they have been effected in national law. Critical reasons as to why the ECJ has given direct effect to directives is so to give directives greater effect and to estop a member state from relying on its own wrong doing.
In order for a provision to have direct effect it must satisfy three conditions, it must be precise, it must be of an unconditional obligation and it must not be dependant on implanting measure; as established in the case Frans Grad v.
Approximate Word count = 2370
Approximate Pages = 9.5
(250 words per page double spaced)
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