Effectiveness of eu law in member states

Author:Anca-Magda Vlaicu
Position:Judge, Ph.D.candidate, Faculty of Law, 'Nicolae Titulescu' University, Bucharest
Pages:162-173
SUMMARY

When the original Rome Treaty was drafted, it was envisaged by the authors that the procedure as set out in what is now article 258 T.F.E.U. (infringement procedure) would be the primary means by which EU law is enforced - a “centralized” and “public” form of enforcement assured by the ECJ, the Commission and Member States, which was itself innovative, since most international treaties contained... (see full summary)

 
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162 Lex ET Scientia. Juridical Series
LESIJ NO. XVIII, VOL. 1/2011
EFFECTIVENESS OF EU LAW IN MEMBER STATES
Anca-Magda VLAICU*
Abstract
When the original Rome Treaty was drafted, it was envisaged by the authors that the
procedure as set out in what is now article 258 T.F.E.U. (infringement procedure) would be the
primary means by which EU law is enforced - a “centralized” and “public” form of enforcement
assured by the ECJ, the Commission and Member States, which was itself innovative, since most
international treaties contained no such mechanism. It was a point of view shared by Member
States, who could see no reason why provisions of EC Treaties should be treated any differently
from those of other international treaties. Thus, on the one hand, the effect of international treaties
was generally governed by the principle that they cannot by themselves create rights and
obligations for individuals, but only for contracting states - therefore, states were considered the
only ones entitled to claim respect of international norms in international courts (individuals and
national courts were excluded); on the other hand, as the text of EC treaties made no specific
reference to the effect their provisions were to have, the general rule governing international
treaties should also apply to them. The European Court of Justice disagreed and engaged in a
prolonged judicial activism, resulting in the creation of other legal mechanisms by which national
courts and individuals (rather than ECJ, Commission and Member States) were to take the leading
role in the enforcement of EU law - a “decentralized” and “private” form of enforcement,
governed by three interrelated principles developed jurisprudentially by the ECJ: direct effect,
indirect effect and state liability. In this context, the purpose of this paper is to provide an
overview of actual means of EU law enforcement, as presented above; to this end, there will be
considered the legal/judicial basis, scope, limits and practical difficulties of the ”centralized” and
“decentralized” form of enforcement.
Keywords: infringement, direct effect, incidental horizontal effect, indirect effect, state
liability
1. Introduction
The paper intends to provide an overview of primary means by way of which, at present,
EU law is enforced against Member States, national authorities and individuals.
The topic proposed is central for EU law, both from theoretical and practical point of view.
From a theoretical perspective, the importance of analysis results, on the one hand, from the
fact that means of EU law enforcement are different from those provided in case of international
law enforcement; on the other hand, nor treaties or the other EU law sources identify a general
scheme of these means (of which some have been established, in fact, by the case-law of Court of
Justice of the European Union) – the analysis should therefore prove useful, taking into account
the lack of legal provisions and also the evolving jurisprudence of ECJ on the subject.
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* Judge, Ph.D.candidate, Faculty of Law, “Nicolae Titulescu” University, Bucharest (e-mail:
magda_vlaicu@yahoo.com).

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