Of birds and hedges: the role of primacy in invoking norms of EU law

Abstract:

Over 40 years after Van Gend & Loos the doctrine about invoking norms of EU law is still not fully settled. In particular there is still a lively debate on the exact scope of the key concepts of primacy and direct effect. In the following article an attempt is made to further clarify these concepts and put them in a broader perspective that draws on both the rules for relying on EU law in national courts and the relationship between EU law and international law. It is argued that direct effect is a very powerful tool allowing individuals to enforce rights which are solely granted by EU law. It is submitted, however, that whenever the right sought is available in embryonic form in the legal order of the Member State there is usually no need to couch a claim in terms of direct effect. In particular, it is stressed that whenever the desired rsult can be obtained by setting aside the remaining obstacles in national law, this can be done on the basis of primacy, without there being need for the conditions for direct effect to be fulfilled and this irrespective of the nature of the procedure in the national court.