EU law (European Court of Justice) Case Study Example | Topics and Well Written Essays - 2000 words

EU law (European Court of Justice) - Case Study Example However, the ECJ in the Van Gend case laid down the conditions before EC law would be capable of direct effect, otherwise known as the Van Gend criteria. First, the provision or law must be "sufficiently clear and precise" before being capable of direct effect although it does not mean that the whole provision must comply such as for example in one case2 where it was held that even if only a part of Article 141 fulfilled this criterion, the same was directly effective. Second, a provision should be unconditional. If it conditional if the right provided depends in some way on the judgment and discretion of an independent body unless such discretion is subject to judicial conduct.3 Finally, the third Van Gend criterion is that the provision should not be subject to any further implanting measures on the part of either the EC or the national authority. The third criterion appears to be liberally applied as can be observed in one case4 where based on the wording of the Treaty, it had bee n anticipated that the EC would have to enact secondary legislation before the objectives contained in Article 43 would provide rights to individuals. However, the ECJ declared the provision to be directly effective ratiocinating that to do otherwise could result in individuals being denied their rights under EC law. In the given problem, it is clear that all the three conditions of the Van Gend criteria are present. First, the provision of the Directive in question is "sufficiently clear and precise" by Defrenne v Sabena standards. The Directive is clear that owners of animals may be compensated from a fund be set up for the purpose of compensating owners whose animals are slaughtered pursuant to the Directive. Second, the provision in the Directive is not conditional. The right to be compensated for animals being slaughtered is not dependent upon the judgment and discretion of an independent body. Finally, the third Van Gend criterion has been complied in the given problem because the Directive is not anymore subject to any further implanting measures on the part of either the EC or the national authority. Be that as it may, the third criterion had been liberally applied because to do otherwise would produce an anomalous result where individuals can be denied of their rights under the EC law. A corollary issue in the given problem is whether the Directive as such may be directly effective. A negative answer to the issue means that James and Neil are without any recourse under the Directive. Article 249 EC provides that: "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." Directives are therefore not directly effective as directives require implementation into national law and as such, directives do not appear to provide rights to individuals until they are incorporated by way of national legislation although directives do place obligations upon member states. However, in another case,5 the ECJ ruled that a directive maybe given direct effect it imposes an obligation to achieve a required result. Furthermore,