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  • Level: GCSE
  • Subject: Law
  • Word count: 2001

Outline the approach of the European Court of Justice in Van Gend en Loos, Defrenne v Sabena, Marshall v Southampton Area Health Authority and Francovich v Italy and consider the contribution these cases have made to the ability of the individual to enfo

Extracts from this document...

Introduction

Outline the approach of the European Court of Justice in Van Gend en Loos, Defrenne v Sabena, Marshall v Southampton Area Health Authority and Francovich v Italy and consider the contribution these cases have made to the ability of the individual to enforce rights arising within European union Law. In the case of Van Gend en Loos v Netherlands Inland Revenue Administration, 19631 Van Gend en Loos had imported unreaformaldehyde from Germany into the Netherlands, which was charged as a custom duty. This violated the principle of the free movement of goods between member states laid out in article 12[25] of the Treaty of Rome. 'Member States shall refrain from introducing between themselves any new customs duties on imports or exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.'2 After this Van Gend en Loos claimed for reimbursement of the sum of money from the Dutch Courts, who made a preliminary reference to the European Court of Justice under Article 177 in order to discover whether or not article 12 could assist a plaintiff before a national court. In terms of interpretation in this case it can be clearly seen that the European Court of Justice has adopted a purposive or teleological approach.3 The main reason that the Court adopts this approach is that the Treaty Articles are statements of intent and the court sees it as their responsibility to develop them. ...read more.

Middle

8 Although the court had set out 3 criteria for direct effect, article 141 seems to be neither clear nor unambiguous, it may be said that the criteria as laid out may just be a code by which the Court decides whether a measure is capable of being sufficiently operational in itself to be applied by the court.9 The fact of discrimination in this instance can be identified purely by reference to the criteria of equal work and pay found in Article 119EC. The EC Treaty in this respect has created a direct right of action against the employer whether they are in the private or public sector.10 From this it is also evident that the Court of justice has used the same approach as in the Van Gend en Loos case, the purposive and teleological approach, as they have developed what has been stated in article 141[119]. 11 Having held that directives can have direct effect12 , it was also held that they only have vertical as opposed to horizontal direct effect13 and so the Court of Justice was faced with the question of whether directives could be horizontally directly effective; this was first answered in the case of Marshall V Southampton and Southwest Hampshire Area Health Authority.14 In this case Mrs Marshall who worked for the Health Authority was asked to retire at the age of 62, when men weren't ask to retire until they were 65 years old. ...read more.

Conclusion

From the judgment in this case the term the 'Francovich principle'21 was coined and further used in judgments in later case law. As I have briefly mentioned above, in terms of interpretation the Court of Justice adopts a contextual and purposive interpretation of such cases as above. This interpretation method has also called the teleological approach, the main reason that the court adopts this approach is that the Treaty articles are merely statements of intent and the court sees it as their role to interpret and develop these articles. This approach has been criticised, on the grounds that the court often enters the realms of policy making.22 In conclusion It is evident that these cases have contributed a lot to the ability of an individual to enforce their rights arising within European Union Law as in the groundbreaking case of Van Gend en Loos23 the concept of direct effect was established and without the principles of direct effect and supremacy, individuals could not have directly invoked Community law to contest violations of their fundamental rights and Community measures contrary to national fundamental rights guarantees would have been held inapplicable by national courts.24 The case of Francovich V Italy25 also states that if a member state does not properly implement an EEC Directive then the member state may be held liable if an individual wishes to take a case against them for the breech of a directive. Overall these cases have widened the horizon for individual's rights in their own member states. ...read more.

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