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5 - Direct Effect

from Part II - European Law: Enforcement

Robert Schütze
Affiliation:
University of Durham
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Summary

Introduction

Classic international law holds that each State can choose the relationship between its “domestic” law and “international” law. Two – constitutional – theories thereby exist: monism and dualism. Monist States make international law part of their domestic legal order. International law will here directly apply as if it were domestic law. By contrast, dualist States consider international law separate from domestic law. International law is viewed as the law between States; national law is the law within a State. While international treaties are thus binding “on” States, they cannot be binding “in” States. International law here needs to be “transposed” or “incorporated” into domestic law and will here only have indirect effects through the medium of national law. The dualist theory is based on a basic division of labour: international institutions apply international law, while national institutions apply national law.

Did the European Union leave the choice between monism and dualism to its Member States? Section 1 examines this question in greater detail, before the remainder of this Chapter explores the doctrine of direct effect for European law. Section 2 starts out with the direct effect of the European Treaties. The European Court indeed confirmed that some Treaty provisions would be self-executing in the national legal orders. Nonetheless, the European Treaties are framework treaties; that is: they primarily envisage the adoption of European secondary law. This secondary law may take various forms. These forms are set out in Article 288 TFEU. The provision defines the Union's legal instruments, and states:

[1] To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

[2] A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

[3] A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

[4] A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.

[5] Recommendations and opinions shall have no binding force.

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Publisher: Cambridge University Press
Print publication year: 2015

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  • Direct Effect
  • Robert Schütze, University of Durham
  • Book: An Introduction to European Law
  • Online publication: 28 May 2018
  • Chapter DOI: https://doi.org/10.1017/CBO9781316278314.009
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  • Direct Effect
  • Robert Schütze, University of Durham
  • Book: An Introduction to European Law
  • Online publication: 28 May 2018
  • Chapter DOI: https://doi.org/10.1017/CBO9781316278314.009
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Direct Effect
  • Robert Schütze, University of Durham
  • Book: An Introduction to European Law
  • Online publication: 28 May 2018
  • Chapter DOI: https://doi.org/10.1017/CBO9781316278314.009
Available formats
×