Pregledni rad
https://doi.org/10.31297/hkju.24.3.1
On the Doctrine of the Direct Effect of European Provisions Regarding the Requirement of Enforceability
Koraljka Sansović
orcid.org/0000-0002-6250-1746
; Ministry of Foreign and European Affairs, Zagreb, Croatia
*
* Dopisni autor.
Sažetak
This paper analyses the interpretation of direct effect in terms of its contribution to the development of an efficient European legal system. A precondition for efficiency is the enforceability of provisions. The concept of direct effect, interpreted on the basis of a questionably adequate understanding of the concept of monism taken over from international law, should enhance enforceability by disabling national agents to interfere or to perform the “handover” of rights from the EU level to citizens. Such understanding leads to the national practice applying direct effect in a simplified, plain, and bureaucratic way, and distancing from the substance of provisions. In the cases where, intentionally or not, direct effect/direct applicability are sometimes denied and sometimes recognised to directives and regulations, the CJEU shows how to deal with such situations occurring in the activities of the European regulatory institutions. To fulfil its purpose, national agents applying European law should deploy the underutilised but demanding “shield and sword” approach regarding direct effect. Such an approach, which requires almost equally intense engagement as in the case of indirect effect (also insufficiently exercised at the national level), should defend individual rights from both national and supranational unfavourable influences. In doing so, fundamental rights and general principles encouraged and taken care of by the CJEU, which are and should be the cornerstone of the EU legal system, and which are ultimately a justification for the Member States to embrace the principle of supremacy of European law, should be taken into account.
Ključne riječi
direct effect; principle of supremacy; European law; international law; enforceability; direct applicability
Hrčak ID:
321859
URI
Datum izdavanja:
30.10.2024.
Posjeta: 135 *