126
Maciej Szpunar
Deuxième séance de travail — Les retombées
serving to describe the phenomenon of direct application of EU law. Every
scholar who refers the notion of direct effect or direct applicability has some-
thing different in mind. The emerging Polish doctrine of European Law was
confronted with absolutely inconsistent set of notions: direct effect, direct ap-
plication, immediate effect, relationship between direct effect and supremacy.
This issue would of course require another debate.
I would say that the main line of division is situated between those who
use and distinguish different notions and are trying to find consistency (e.g.
Winter (
1
)) and those who are trying not to go beyond the real problems that
a national judge is facing when applying a norm of EU law (e.g. Pescatore (
2
)).
From my experience – as an academic and a practitioner – and also some-
one who adhered to existing doctrinal debates, the arguments put forward by
the second group of scholars are much more convincing. As judge Pescatore
stated in 1983, direct effect must be considered as a normal state of affairs and
a non-operation of a rule of EU law is always an exception. Moreover, the pos-
sibility to apply a rule of EU law in a particular case does not depend only on
the intrinsic qualities of the rule concerned, but also on the facts to which the
rule is to be applied.
3.
The shadows of the judgment in the case of
Van Gend en Loos
My last remark concerns the shadows of the Van Gend en Loos judgment
or – as Professor Weiler described – ‘the dark side of the moon’. I fully agree
that existing – at the time when the judgment was delivered – level of demo-
cratic representation and accountability did not justify such immense power
of direct governance of the European Economic Community. I would not
blame, however, the Court for this kind of discrepancy between the power of
direct governance and the level of democratic legitimacy.
First of all, we should distinguish the legitimacy of the Court itself and
the legitimacy and accountability of the decision-making process in the
European Economic Community in the sixties of the past century. The Court
(
1
) J.A. Winter, ‘
Direct Applicability and Direct Effect. Two Distinct and Different Concepts in
Community Law
’, 9 CMLRev. 1972, p. 425.
(
2
) P. Pescatore, ‘
The Doctrine of “Direct Effect”: An Infant Disease of Community Law
’, 2 ELR
1983, p. 155.
