The Direct Effect of Secondary Legislation in European Community Law

Abstract

The object of this paper is to present a thematic and analytical account of the present scope and limits of the doctrine of direct effect of secondary legislation in European Community Law. It is thirty years since the doctrine of direct effect was first clearly established in the leading case of NV AIgemene Transport en Expeditie Van Gend en Loos v. Nederlandse administratie der belastingen1 and hence it is appropriate that an analysis of the present day doctrine of direct effect is undertaken. Many fields of judicial doctrine, whether in public law or private law, have been developed in an incremental or ad hoc basis where the courts first lay down the principles of the doctrine and subsequently refine them as the case law develops. As part of this process the criteria laid down by the European Court of Justice in determining whether or not a given provision of European Community Law has direct effect will be isolated. This will provide a springboard then, to examine the types of secondary Community legal provisions which have direct effect. This analysis will show the importance and emphasis placed by the European Court on the development and refinement of judicial doctrine giving content and application to the principle of direct effect. The outcome of this process will be to identify the factors and influences that contribute to the orderly and rational development, as well as enhancement, of European Community Law.