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Effet Utile In EU Law
The article examines how the Court of Justice constructed and selectively applied a particular interpretive technique (effet utile) to expand and entrench the limits of European law. The inquiry is situated in the framework of effectiveness of supranational adjudication, and more concretely, in the context of incrementalism as one of the factors that secure effective adjudication and judicial authority. To validate the thesis of incrementalism the article qualitatively (legal analysis) and quantitatively (citation network analysis) examines all occurrences of effet utile in the so-called historic case law of the Court, presented to the accession countries in 2004, 2007 and 2013. It compares the characteristics of these "historic effet utile cases" to (1) the full sample of historic case law (50 cases in total), (2) to the group of effectiveness cases, in which the concept appears either in the text or the title (1707 cases in total), and (3) to the full network of more than 9500 cases, decided by the Court between 1954 and 2013. The goal is to tease out the general differences between the datasets and empirical particularities of effet utile cases, and analyze them systematically. The findings suggest first, that only a few effet utile cases had a considerable impact on the case law, second, that they reinforced and expanded a specific type of EU law, namely fundamental doctrines of European law, third, that they did so in the period, characterized as the period of expansion in legal literature and fourth, that the expansion was not linear but incremental.The main contribution of the article is first, a comprehensive understanding of effet utile through a systematic empirical inquiry and second, a deeper insight into the maintenance of supranational judicial authority longue durée.full paper (PDF)
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This essay will aim to address the principle of state liability, by critically evaluating the principle in reference to Francovich v Italy (1990) C-6/C-90, as well as similar cases after this date. But firstly a brief introduction to the European Union (EU) and EU law will be provided. Cases will be compared on the basis of what was held and how the cases concluded. A conclusion will be drawn from all the findings.
The EU is made up of twenty eight Member States and the latest Treaty to be signed by these states is the Lisbon Treaty which amends the Treaty on European Union (TEU) and the Treaty on the Functioning of European Union (TFEU) (Barnard and Peers, 2014). Cuthbert (2014) refers to the Lisbon Treaty as having both TEU and TFEU under “one umbrella.” Being a member of states of the European Union means that their legislative, executive and judicial powers will be controlled and has to be operated within the framework of EU law (Kelly et al., 2014). There are four main institutions of EU; Kelly et al. (2014) suggests these to be, the Council of Ministers; The European Parliament; European Commission; and the European Court of Justice (ECJ). Each of these institutions have their own roles within the EU. These include ensuring objectives in the Treaty achieved; adopting and instating new legalisations; and to make sure that the law is not broken while interpreting or applying a Treaty (Barnard and Press, 2014). In whole, none of these institution have full control over Europe; in fact Davies (2001) concludes by stating that it is run through “co-operation and negotiation” between the institutions.
Foster (2011) defines state liability allows an individual take action against a Member State when a Member state has not followed “EU law obligations” and as a result the individual has suffered loss; this term made its first appeared and was accepted by ECJ in Case 6/90 Francovich : Francovich lost six million lira due to his employer going bankrupt. He sued his employer but could not impose judgement as the employer was bankrupt. So Francovich decided to sue Italian State based on the Directive 80/987, which had not been implemented in Italy even though time set for implementation had passed. Foster (2000) defines the term directives as a set of aims a Member States is obliged to implement within a specified date but the way in which they achieve this is up to the Member State. Directives comes secondary legislation, which is one the sources of EU law (Kelly et al., 2014). Article 202 defines secondary legislations as the under the provision of the Treaty allows the Council of Ministers and Commission to issue directives, make regulations, and take decisions. Directive 80/987 is on the protection of employees in the event of the insolvency of their employers; so basically the directive required Member States to set up a scheme to so that in such cases employees of insolvent companies would receive some of their outstanding wages.
In Case 22/87 Commission v Italy the ECJ held that Italy breached EU law for not implementing Directive 80/987. The Italian court suggested under Article 267 TFEU whether the “provision of the Directive in relation to payment was directly effective,” (Kaczorowska, 2013); and so whether the Italian State was in liable for loses arising from its failure to implement the Directive. Foster (2011), explains how directives were meant to be “general rule” to get the end result; the Court of Justice did not think it was detailed enough to result in rise of direct effects as they were not direct applicable. Direct applicable is when a “provision of the European Union” which will be in effect within the Member of State without the national authorities having to implement it (Davies, 2001). Direct effect is a principle found by the ECJ in Case 26/62 Van Gend where the court held that “[EU Law]…not only imposes obligations on individuals but it is also intended to confer upon them rights which national courts must protect,” (Kaczorowska, 2013). Kelly et al. (2014) identifies that there are two different types of direct effects; these are horizontal and vertical direct effects. Horizontal direct effect allows an individual to use EU provisions against other individuals whereas vertical direct effect allows individuals to rely on EU law when going against their national courts (Kelly et al, 2014).
In the case of Francoivich (Cuthbert, 2014)…. What was held and established
By establishing such a principle ECJ shows that EU law is more supreme in contrast to national law; for example if a Member of state does not implement properly, the power of Community law would suffer (Reinisch, 2009). Other than Direct effect there is also indirect effect. This came about as a result of ECJ refusing to allow “horizontal direct effect of directives,” in the case of Von Colson ; this made EU law less effective, so in order to redeem themselves they created the principle of indirect effect (Reinsich, 2009). The principle states a Member State can interpret national law in a way it follows the requirements of European directives (Kent, 2008).
Kaczorowska (2013) explains how the ECJ felt that for the existence of the EU itself it was a necessity for EU law to be supreme over national law; a couple of years after the Van Geld case the ECJ voiced the principle supremacy of EU law in the Case 6/64 Costa v ENEL : Mr Costa was a shareholder of an electricity company nationalised by the Italian Government and he was sued for refusing to pay electricity bills to the national electricity company ENEL. In the court he raised in his defence that nationalism was in contrary to EU law. The ECJ held that national courts could not create legislations that would go against or would prevail over EU law; furthermore being part of the EU means that the Member State have given the power to legislate to EU and finally they held that EU law cannot vary from one Member State to another; there can’t be any exceptions all the Member States have to follow the same laws. Reinisch (2009) explains how the “effet utile” causes helps ECJ to see this through; EU law being supreme over national law increases and strengthens “the legal uniformity and effectiveness of EC law.”
Foster (2014) and Reinisch (2009) both suggests that the idea of direct effect was inspired by “effet utile” also known as “useful effect” of the Union law; the idea to view the objectives of the Treaty in a broad way and not interpret using the words used. This principle was delevoped by ECJ to help them be more effective in carrying out EU law within Member States (Reinisch, 2009). In fact, Foster (2014) goes on to say that in the Francovich case the principle of state liability could have never be established from reading the Treaty or secondary law in a literal sense.
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