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Constitutional Law of the EU - Case Study Example

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Individuals were given the right to bring actions before the ECJ for judicial review of the acts of Community institutions under Article 173. However, as a means of enforcing individual rights, this Article has limited utility as, first, individuals are not permitted to bring actions against Member States and therefore have no rights or remedies where a State violates their Community law rights and, secondly, individuals are required to demonstrate that the measure is a decision which is of direct and individual concern to the applicant.
An individual cannot challenge regulations unless it is demonstrable that it is merely a decision in the garb of a regulation1. The individual must show that the effects of the decision apply directly to the applicant without depending on the exercise of discretion by another body2. Moreover, the decision must affect the individual's legal position3. The ECJ has taken its own view as to the nature and effect of treaties known as the doctrine of 'direct effect.'
The concept of Direct Effect of EC law was developed by the ECJ to allow individuals and organisations to use the provisions of EC law within their Member States' domestic courts without having to wait for the Member State to fulfil some obligation which it had omitted to do. Although, individuals could complain to the Commission, nevertheless they could not compel the Commission to ensure that their rights were enforced if the Commission was chary of doing so4.
The implication of this jurisprudential concept is that individuals can obtain the required mandate directly from community law, for enforcement in their own national courts. It also places control in the hands of ordinary individuals, as per the provisions of Article 226 EC, which enables the Commission to initiate proceedings against Member States for breaches. Direct effect has in this manner empowered every citizen of the Union to participate actively and in this manner has brought the community into their lives. Its legal foundations were established in Van Gend En Loos 5 in which the Court held that an individual was entitled to invoke Article 25 EC in order to prohibit Member States from introducing new customs duties on imports and exports and other charges having equivalent effects. The Court held that Article 25 EC was directly effective and could be challenged by individuals in the national courts.
However the ECJ reasoned that direct effect exists and that the individuals may have the rights conferred upon them directly under EC treaties. This reasoning was based on the need to carry out the political and legislative programme that the treaties had set out to create a community not only of states but also of personsthat calls for the participation of everybody. The spirit of the preamble to the EC implies that reference has to be made not only to member governments but also to individuals, and is therefore, more than an agreement which creates mutual obligations between the contracting states. In this way it is distinct from other international treaties and constitutes a new legal order of international law for the benefit of which the stated have limited their sovereign rights, although within limited fields, the subjects of which comprise not only member states but also their nationals. Therefore it was concluded that, community lawis intended to confer upon individuals rights which become part of their ...Show more
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Summary

The provisions of the EC Treaty which explicitly provide for individuals to enforce rights derived from European Community law are limited in their scope. The European Court of Justice (ECJ) has therefore developed a number of principles which widens this scope…
Constitutional Law of the EU
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