Introduction
This essay critically examines one of the central arguments presented by Franz C. Mayer in his chapter, ‘Van Gend en Loos: The Foundation of a Community Law’, published in the edited collection by Maduro and Azoulai (2010). Specifically, it focuses on Mayer’s assertion that the European Court of Justice’s (ECJ) ruling in Van Gend en Loos (1963) established the principle of direct effect as a revolutionary foundation for European Union (EU) law, transforming the relationship between individuals and Member States. The purpose of this analysis is to assess the validity of Mayer’s argument by exploring the historical and legal context of the decision, its implications for EU law, and the extent to which it can be considered foundational. While Mayer’s perspective underscores the transformative nature of the ruling, this essay will argue that, although significant, the concept of direct effect has limitations and evolved through subsequent case law, suggesting that its foundational status may be somewhat overstated. The discussion is structured into three main sections: first, an overview of Mayer’s argument; second, a critical evaluation of the direct effect principle; and third, an assessment of its broader implications for EU law.
Mayer’s Argument on Direct Effect as Foundational
In his analysis, Mayer (2010) contends that the ECJ’s decision in Van Gend en Loos (Case 26/62) marks a pivotal moment in the development of EU law, primarily through the establishment of the direct effect doctrine. He argues that the ruling, which allowed individuals to invoke EU law directly before national courts, fundamentally altered the legal landscape by creating a new legal order distinct from traditional international law. According to Mayer, this decision empowered individuals by granting them rights under EU treaties, specifically Article 12 of the Treaty of Rome (now Article 30 TFEU), which prohibits customs duties on imports between Member States. Mayer (2010, p.18) highlights that the ECJ’s assertion of EU law’s autonomy and its direct applicability in national jurisdictions was revolutionary because it challenged the conventional notion that international treaties only bind states, not individuals. He posits that this laid the groundwork for a supranational legal system, positioning the ECJ as a key driver of European integration.
Mayer’s interpretation aligns with much of the academic discourse that views Van Gend en Loos as a landmark case. Indeed, his emphasis on the creation of a “new legal order” echoes the ECJ’s own language in the judgment, which stated that the Treaty of Rome constituted a framework where individuals, alongside states, are subjects of rights and obligations (ECJ, 1963). However, while Mayer’s argument is persuasive in highlighting the innovative nature of the ruling, it appears to underplay certain complexities and limitations inherent in the direct effect principle, which will be explored in the following section.
Critical Evaluation of the Direct Effect Principle
While Mayer (2010) celebrates direct effect as a transformative doctrine, a critical examination reveals that its scope and application are more nuanced than his argument suggests. Direct effect, as established in Van Gend en Loos, requires that provisions of EU law be clear, precise, and unconditional to be invoked by individuals in national courts. This conditionality immediately imposes limitations, as not all Treaty provisions meet these criteria. For instance, provisions that require further implementation by Member States, such as directives, were initially deemed incapable of direct effect until later rulings like Van Duyn v Home Office (Case 41/74) expanded the doctrine to include certain directives under specific conditions (Craig and de Búrca, 2020). This development indicates that direct effect was not as immediately foundational as Mayer suggests; rather, it evolved through subsequent jurisprudence.
Moreover, the practical impact of direct effect is arguably constrained by the principle of national procedural autonomy, whereby national courts retain discretion over procedural rules governing the enforcement of EU rights (Weatherill, 2016). This means that while individuals may theoretically invoke EU law, the effectiveness of such actions depends on the willingness and capacity of national legal systems to accommodate these claims. Therefore, although Mayer’s portrayal of direct effect as revolutionary is understandable, it may overstate the immediate and universal transformation of the legal relationship between individuals and Member States.
Additionally, it is worth noting that direct effect primarily applies vertically (between individuals and the state) rather than horizontally (between private parties), as clarified in later cases such as Marshall v Southampton and South-West Hampshire Area Health Authority (Case 152/84). This limitation further challenges the notion that direct effect created a fully autonomous legal order from the outset, as Mayer implies. Consequently, while I agree with Mayer that Van Gend en Loos was a significant step towards a community law, I contend that its foundational status is tempered by these practical and legal constraints.
Broader Implications for EU Law
Beyond the immediate scope of direct effect, Mayer’s argument prompts consideration of the broader implications of Van Gend en Loos for the evolution of EU law. One could argue that the case not only introduced direct effect but also set a precedent for the ECJ’s activist approach to legal integration. By asserting the supremacy of EU law over national law—a principle later cemented in Costa v ENEL (Case 6/64)—the ECJ positioned itself as a guardian of a supranational legal order (Craig and de Búrca, 2020). This judicial activism has been both praised for fostering integration and criticised for overstepping the boundaries of judicial interpretation, raising questions about democratic legitimacy (Weatherill, 2016). While Mayer (2010) acknowledges this transformative role, his analysis does not fully engage with the potential tensions between judicial innovation and Member State sovereignty, which remain a point of contention in EU legal discourse.
Furthermore, the principle of direct effect has had significant implications for the protection of individual rights within the EU. For example, it has enabled citizens to challenge national laws that contravene EU provisions, thereby enhancing accountability and legal uniformity across Member States. Nevertheless, as previously discussed, the conditional nature of direct effect means that such empowerment is not always guaranteed, particularly in complex areas involving directives or horizontal disputes. Thus, while I concur with Mayer’s view that Van Gend en Loos laid important groundwork for a community law, I believe its foundational impact must be understood as part of a broader, evolving legal framework rather than a singular, definitive transformation.
Conclusion
In conclusion, this essay has critically assessed Mayer’s (2010) argument that the ECJ’s ruling in Van Gend en Loos established direct effect as a foundational principle of EU law. While Mayer’s emphasis on the revolutionary nature of the decision is compelling, particularly in terms of empowering individuals and creating a new legal order, a closer analysis reveals limitations in the scope and immediacy of direct effect’s impact. The principle’s conditional application, combined with constraints imposed by national procedural autonomy and the distinction between vertical and horizontal effect, suggests that its foundational status may be overstated. Nevertheless, the ruling undeniably set a significant precedent for the development of EU law, influencing the ECJ’s role in legal integration and the protection of individual rights. The ongoing evolution of direct effect through subsequent case law highlights the dynamic nature of EU legal principles, underscoring the need for a nuanced understanding of their implications. Ultimately, while I partially agree with Mayer’s perspective, I advocate for a more tempered view that acknowledges both the transformative potential and the practical limitations of Van Gend en Loos.
References
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Mayer, F.C. (2010) ‘Van Gend en Loos: The Foundation of a Community Law’, in Maduro, L.M.P.P. and Azoulai, L. (eds) The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. Bloomsbury Publishing Plc, pp.16–25.
- Weatherill, S. (2016) Law and Values in the European Union. Oxford University Press.
