Discussing the cases of Van Gend En Loos (Case 26/62), Von Colson (14/83) and Francovich (Cases 6 & 9/90)

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EC Economic and Social Law 1

Discuss why Van Gend En Loos (Case 26/62), Von Colson (14/83) and Francovich (Cases 6 & 9/90 have all played their important part in providing avenues which enabled private party applicants to enforce rights given to them by various provisions of EC Law in their national courts.

The ability of private parties to enforce European Community law in national courts is now an essential feature of the integrated legal system set up by the European Community.  Although the European Court of Justice is the supreme court of the European Community, the onus is on the lower; that is to say national, courts to apply the Community law.  Private parties can apply to national courts to enforce their Community rights where their national law provides lesser rights than Community law.  However, where the national courts are unclear on the meaning of the Community legislation, they may seek clarification from the European Court of Justice.  In the case of Community law which should have been transposed into national law, the applicant may request the Commission to take proceedings under Article 226 (ex 169) EC against the Member State for failing to do so.  The cases of Van Gend en Loos (Case 26/62), Von Colson (Case14/83) and Francovich (Cases C-6/90 & C-9/90) are three precedential cases which have played important parts in providing avenues which now enable private party applicants to enforce Community rights given to them by various provisions of EC law in their national courts.

Although Community law is part of our legal system and is therefore directly applicable in the UK, not all Community law is directly effective, that is to say, capable of judicial enforcement.  The Court of Justice has ruled in a number of cases that for a Treaty Article, Regulation or Decision to be directly effective, it must be sufficiently clear and unconditional for reliance to be placed on it, and there must be no scope for the exercise of Member State discretion in implementing it.  Van Gend en Loos (Case 26/62)1 was the case which first established the concept of direct effect of Community Law relating to Treaty Articles.  A Dutch glue importer was required to pay increased customs duty charges on imports by a Dutch law which was implemented after the Treaty of Rome of 1958 had come into operation.  Article 25 (ex 12) of the EC Treaty provided:

“Member States shall refrain from introducing between themselves any new duties on imports…and from increasing those which they already apply…”.

The applicant challenged the validity of the new law before the Dutch court and the national court sought advice from the Court of Justice on whether a private party before a national court could rely directly on the EC Treaty, and specifically on Article 25 (ex 12).  The Court of Justice held that Article 25 (ex 12) EC had direct effect and could be relied upon in the national courts.  However, to have direct effect the Articles must: confer individual rights, be clear and precise, be unconditional and unqualified and must not leave any substantial discretion to Member States or to the Commission and will be irrelevant if national law provides for an alternative remedy.    

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In further cases, the Court of Justice went on to rule that Regulations and Decisions could also have direct effect.  

The case of Van Gend en Loos1 initiated the right for private parties to enforce their Community rights from EU Treaties on Member States and became a precedent to allow private parties to rely on other sources of EU legislation.  The Van Gend en Loos criteria are now the test for the application of direct effect for provisions of EC law.  Furthermore, the Court of Justice in a later case allowed for Treaties to have both vertical and horizontal direct effect: ...

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