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9 Common Market L. Rev. 425 (1972)
Direct Applicability and Direct Effect Two Distinct and Different Concepts in Community Law

handle is hein.kluwer/cmlr0009 and id is 437 raw text is: DIRECT APPLICABILITY AND DIRECT EFFECT TWO DISTINCT AND DIFFERENT CONCEPTS IN COMMUNITY LAW by J. A. Winter Introduction THE Court of Justice has firmly established that the EEC is more than a Community of States. It presents a new legal order in international law for the benefit of which the member States have, albeit to a limited extent, surrendered their sovereign rights and whose subjects are not only the member States but individuals as well.1 A central concept of this new legal order must therefore be the position which private parties occupy under the Treaty and the secondary legislation made for its execution. The Treaty is not a mere contract between States which imposes certain obligations on them. It is also law in the sense that it contains (more or less) definite rules creating rights and obligations for private persons, enforceable by national courts. The latter rules, cognizable in the courts of the member States and which even take precedence over conflicting municipal legislation in these States, are commonly called directly applicable , self-executing or directly effective norms of Community Law. The Court of Justice itself has never used the word self-executing , but apparently considers its general formula produces direct effects and creates individual rights which municipal courts must recognize to be synonymous with directly applicable .2 This rather confusing use of terms is objectionable because it may impair proper understanding of two fundamental problems which should be distinguished, viz. (1) the question as to how Community Law is incor- porated into municipal law so as to become the law of the land ; (2) the problem of the conditions under which Community norms thus incorporated into the municipal legal order are susceptible of being invoked before national courts by private individuals. As the various notions denote different legal phenomena, it will readily appear that it is dangerous and unwarranted to use them indiscriminately. It is more and more acknowledged that in the framework of Community Law the term direct applicability should be reserved for the method of incorporation of (secondary) Community Law into the municipal legal order (Art. 189). The problem as to when a Community provision is 1 Case 26/62, Van Gend & Loos v. Netherlands Tax Administration, Recueil IX, 1, at 22; 1 C.M.L.Rev. 1963-64, 85-86. 2 See Koller, Die unmittelbare Anwendbarkeit vblkerrechtlicher Vertriige und des EWG-Vertrags im innerstaatlichen Bereich (Bern, 1971), 163-168. 425 Copyright © 2007 by Kluwer Law International. All rights reserved. No claim asserted to original government works.

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