182
Michal Bobek
Troisième séance de travail — Les perspectives
today it is generally believed to be. This contribution proceeds from a slightly
more critical starting assumption: direct effect was not carved in stone neither
in 1963, nor today. Quite the contrary: seen from the point of view of the com-
parative practice in national courts as well as from the case-law of the Court
itself, direct effect is in fact still quite an unexplored and somewhat
fragile
principle. Moreover, it is not static. Within the current constitutional con-
struction of the Union, it is being constantly re-negotiated and re-affirmed in
the judicial practice. This starting assumption brings to the fore the key ques-
tion of this contribution: can the on-going foundation and legitimacy for dir
ect effect remain the same today as it was some fifty years ago? Or should the
changed social context of the Union of today as opposed to the EEC in 1960s,
matter for redefining the justification narrative of direct effect and much of
the legitimacy of the Court’s case-law?
◊
Fifty years is a dignified age. The person celebrating it is expected to be
experienced, established, and mature. The principle of direct effect, however,
has difficulties fitting such a birthday picture. It remains astonishingly
un-
explored
, even today. What is the precise scope of direct effect (a narrow or
broad notion, exclusion, substitution, or both)? What is its exact relationship
to other principles of EU law (to direct applicability, indirect effect, or even
primacy)? How many direct effects are there in fact with respect to the vari-
ous sources of EU law and why (the differentiation between Treaty provisions,
directives, international law provisions and so on)? Finally, but perhaps first
of all, when exactly is a provision sufficiently clear and precise as to be directly
effective? What is the real test? The Court has the habit of simply announcing
the result of its examination with respect to direct effect of a provision, with-
out dwelling too much on the exact level of precision and clarity a provision
must meet in order to qualify for direct effect. Such a ‘test’ is very difficult to
carry out independently in other cases or to replicate, by national courts as
well as other actors. In his Opinion of 12 December 1962 in
Van Gend en Loos
,
Advocate General Roemer stated that Article 12 EEC Treaty cannot be di-
rectly effective (directly applicable) because it lacks
‘a precise indication of the
intended legal effects’
(
4
) that potential direct effect was supposed to produce in
the Member States. With tongue-in-cheek, one might wonder what the posi-
tion of the learned Advocate General in this respect would be today. In sum,
we have a 50 year-old spirit of
Van Gend en Loos
but still located inside the
(
4
) [1963] ECR 16, at 22.
