98
Bruno De Witte
Deuxième séance de travail — Les retombées
legal order would have completely ‘grown up’ (
11
). In that perspective, ques-
tions about the direct effect of particular norms of EC law would gradually
be drying up – but they have not. Despite Pescatore’s words, it would seem
that the existence of a special doctrine of direct effect (and the preliminary
questions linked to it) continues to be justified by the fact that the domestic
judicial enforcement of EU norms is different from that of international treaty
norms, but also from that of norms of domestic origin. First, because the ex-
istence of direct effect is a matter of interpretation of EU law to be settled by
the European Court of Justice rather than by the national courts separately;
therefore, different national habits as to when a legal norm is ‘ripe’ for judi-
cial enforcement have to give way to a common European doctrine developed
mainly by the central organ situated in Luxembourg. Secondly, because of the
existence of certain sources of Community law (directives and international
agreements) which obey to special and rather arcane rules regarding their
domestic judicial enforcement; national courts must in certain cases refrain
from applying norms of directives or international agreements that seem suf-
ficiently clear by their terms, because they are not fit for enforcement accord-
ing to the Court of Justice. This is notoriously, but controversially, the case
with provisions of a directive when they impose obligations on individuals;
and with provisions of the WTO Agreement, even when their significance
has been spelled out by the WTO’s dispute settlement organs (
12
). Thirdly, the
direct effect doctrine remained a characteristic of the Community law part
of the EU legal order and did not extend to norms of primary and secondary
EU law belonging to the second and third pillar, prior to the Lisbon Treaty.
Today, things have changed for former third pillar law, which will in the fu-
ture be treated like the rest of EU law, at least after the end of the transitional
phase (
13
).
These various factors continue to provoke debates about the evolution of
the direct effect doctrine, and thereby continue to provide renewed occasions
for reflection on the significance of the 1963 judgment that started it all. They
also explain why national courts continue to ask questions about whether this
or that norm of EU law has direct effect – or not. Still, this kind of question
(
11
) P. Pescatore, ‘The Doctrine of Direct Effect: An Infant Disease of Community Law’,
European Law Review
(1983) 155.
(
12
) The literature on these two issues is over-abundant. Suffice it to mention two monographs
dealing, respectively, with each of them: S. Prechal,
Directives in EC Law
, 2nd ed (Oxford,
OUP, 2005); M. Mendez,
The Legal Effect of EU Agreements
(Oxford, OUP, 2013).
(
13
) But not yet today… See, on the absence of direct effect of a framework decision, Case
C-42/11,
Lopes Da Silva Jorge
, judgment of 5 September 2012, paragraph 53.
