13
General introduction
The second is the confluence of Direct Effect and Supremacy. In the case
as argued before the Court, both the Advocate General and the Commission
fully understood that nexus. The Advocate General linked his rejection of the
Direct Effect in that case precisely to the absence of Supremacy in some of the
national legal orders, such as Italy. It seemed to him,
à juste titre
, impossible
to indicate Direct Effect if it would result in unequal application of the same
norm in different Member States. The Commission agreed with that analysis,
arguing however, that if that were the case, the Court would simply have to
insist on Supremacy of European Community law as well as its Direct Effect,
indeed, because of its Direct Effect. The Court, in commendable restraint, re-
frained from adjudicating that issue which was not before it, and awaited a
subsequent case to establish the nexus.
Taking these two confluences together helps explain the huge pragmat-
ic and political significance and impact of the case. In one swift move, the
Community had in place not only a full fledged system of judicial review (that
after all the Treaties provided
expressis verbis
) but it was a decentralised/cen-
tralised, Private Attorney General model – the most effective in ensuring com-
pliance of Member States with the Community law application. Legally, Direct
Effect construes mutual obligations among Member States as rights owed by
States to individuals which national courts must protect. As a socio-legal
phenomenon, Direct Effect harnesses the private economic, political and so-
cial interests of the individual in vindicating those rights to the public interest
of ensuring the rule of law at the transnational level.
With each individual effectively becoming in that way a ‘legal vigilante’
of the public rule of law, an effective civil society monitoring system is put in
place. A collateral benefit (not without problems) is the shift of enforcement of
the rule of law to a mixed market model of private and public resources. The
benefits do not end here.
Subsidiarity – though we do not often see this term applied to this phe-
nomenon – is built into the system given the fundamental role which individ-
uals come to play as a result of Direct Effect combined with the Preliminary
Reference. The demand for legal rights and their enforcement is a bottom up
phenomenon, emanating from and close to, the most immediate stake hold-
ers.
And, of course, there are the two most commented upon socio-political
effects of Direct Effect in terms of the process of European integration:
