‘The Court in Costa v Enel (1964) and Van Gend en Loos (1963) emphasised

that the Treaties were contractual, that they created obligations for the
Member States and that the action taken by them must not be such as to
derogate from or nullify the obligations they have undertaken under the
Treaties. It is in that context that we should consider what the Court said in
Van Gend en Loos about the role of individuals in enforcing EU law at the
national level.’
Discuss.

With the help of these two cases, ECJ introduced two principles, 1) Supremacy of
EU law and 2) Direct Effect of Union law in domestic courts of the country. Both
these principles were result of judicial activism done by the European Court of
Justice (ECJ). The justification given while developing these two principles was that
consistent application of EU law, in all member states was only possible if the said
law is deemed sovereign over domestic law of all member states. Moreover, the
purpose behind the introduction of direct effect principle was to grant individuals
effective protection, even in their home countries. ECJ has used these two doctrines
to impose its contractual obligations in the member states

The doctrine of direct effect was introduced in the case of Van Gend en Loos. The
principle of direct effect means that, subject to certain conditions, union law creates
rights and obligations which individuals may rely on and enforce in their national
courts. Individuals can resort to the ECJ under Article 258 TFEU to enforce their EU
law rights. Three requirements were introduced in the case of Van Gend en Loos,
that needed to be fulfilled, 1) the article must be clear and precise 2) it should be
unconditional 3) its operation does not require a legislative implementing measure on
the part of the state.

As per Article 288 TFEU, a regulation of EU law is directly applicable in all the
member states. They therefore automatically become part of national law, and this
will mean that they can be relied upon by individuals in their national courts. They
can have both, vertical and horizontal direct effect. As per Azienda Agricola Monte
Arcosu v Regione Autonoma della Sardegna, regulations must also satisfy the
standard three requirements to be enforced by a domestic court.

Also, as per Grad v Finanzamt Traunstein, ECJ decisions are not directly
applicable, but are binding in their entirety. They can have both vertical and
horizontal direct effect.

Most important are the directives. As per Article 288(3) TFEU, it states that a
directive shall be binding as to the result to be achieved. It is argued that they should
not have direct effect as they need further implementation by the member state,
They are clearly addressed to the member state and not individuals. And leave
discretion as to form and method to the Member State. Despite all this, the court in
Van Duyn v Home Office, decided that directives too have direct effect. They would
have vertical direct and not horizontal direct effect. Despite, criticism by academics
such as AG Lenz, horizontal direct effect was not allowed. This was creating a hurdle
in the fulfillment of the obligations that had been imposed on them through the
treaties.
Although the code did not allow horizontal direct effect, introduced other tools that
can be used in a way that the horizontal direct effect is also made possible virtually
though. Such as the word state being interpreted very widely, with the aim of
including maximum bodies into the definition of state. For this the criteria was laid out
in Foster v British Gas, 1) it should be providing a public service 2) under the
control of the state 3) has special powers going beyond that of a state. However,
Farrell has modified the test in such a way that it has been widened more. Now all
requirements need not to be fulfilled.

Another tool that can be used is of indirect effect, which was introduced by the case
of Van Colson. In this case, it was decided that under Article 4(3) of TFEU,
member states had a duty to interpret the national law in the light of the wording and
the purpose of the directive. in furtherance of this, in Marleasing v Commercial, it
was held that even if the provisions of the national law were adopted before the
directive, then too they must be interpreted in the light of the EU law. This is one of
the ways, by which ECJ is helping individuals enforce EU law at national level,
thereby fulfilling the obligations of the treaties, which they have ratified.

The principle of EU primacy although not stated expressly in the founding treaties of
the EU, has overtime elevated its status to being the most fundamental principle of
EU. The justification presented by the European Court of Justice, whilst developing
this notion, is on the grounds of legal certainty. EU treaties are not classical
international law, but they set up a new legal order. In the case of Costa v Enel, the
ECJ introduced the principle of supremacy of EU law. It was held, that the law
stemming from the treaty, an independent source of law, could not, because of its
special and original naturel, be overridden by domestic legal provisions.

This principle was further expanded in the case of Simmenthal. In this case, the
ECJ stated that supremacy will be enforced by each and every court of the member
state and not the only the highest court in the hierarchy. With this, ECJ created the
premises for European law to be applied at all levels of judicial procedure. It can be
rightly said, that after this decision, national judges became judges of the EU.
Moving on, in Melloni, it was stated that even if there is a conflict between a
domestic law which gives more rights than the community law, than too, the
community law will be followed.

In Larsy v INASTI, it was held that even an administrative agency can set aside a
contradicting national law and follow community law. This principle has made it very
much easier for the EU to promote the integration of the European Union.

Despite being a dualist state, where international law cannot become part of its
domestic law, still these principles apply in the United Kingdom. Initially, in the case
of FTA v LTBC, UK took a hostile approach regarding the principle of supremacy.
However, in latter cases of Bulmer and McCarthy’s, Lord Denning suggested that
EU law is an over-riding force, and is above everything, including the parliament. He
stated that the Parliament has itself limited its sovereignty by accepting EU laws
precedence in its own Constitutional Act of European Communities Act 1972. This
could also be seen in the case of Factortame, where the Merchant Shipping
Statutory Regime conflicted with EU law. EU law’s supremacy was accepted, and
the court set aside the conflicting domestic law. They would have also changed the
national law, to bring it in conformity with the EU law. Now, even though the United
Kingdom has left the European Union, EU law directives will still keep on binding
them.

Finally, we can say that ECJ has developed these doctrines to help the individual
enjoy and enforce rights granted by EU law in their own countries. They have been
successful to considerably, in enforcing their contractual obligations.