20 Chapter 1The legal system
The second area of jurisdiction arises under Article 230 of the EC Treaty, which allows
the ECJ to review the legality of acts done by the European Parliament or other Community
institutions. The ECJ can also review a community institution’s failure to act. This review
process is similar to the process of judicial review whereby the High Court ensures that the
Government and others do not exceed their powers.
The third area of jurisdiction arises under Article 226, which allows the ECJ to bring
actions against Member States to make sure that they fulfil their Community obligations.
Article 227 allows Member States to take other Member States to the ECJ for failure to live
up to their Treaty obligations.Sources of EU law
Applicability and effect
In order to understand the effect of EU law, it is necessary to understand the distinction
between the terms ‘direct applicability’ and ‘direct effect’. If EU legislation is directly applic-
able, it automatically forms part of the domestic law of Member States, without those States
needing to do anything to bring the law in. However, this would not necessarily mean that
individuals could directly rely upon the legislation in the domestic courts of their own
countries. In order for such reliance to be possible, the legislation would have to be capable
of having direct effect. Where EU legislation has direct effect an individual can directly rely
upon the legislation, either as a cause of action or as a defence, in the domestic courts of his
or her country. The Articles of the Treaty on the Functioning of the European Union are
always directly applicable, as are EU Regulations, but, as we have seen, this does not
necessarily mean that they have direct effect.
No EU legislation can have direct effect unless it satisfies the criteria laid down by
the European Court of Justice in Van Gend en LoosvNederlands Administratie der
Belastingen (1963). These criteria will be satisfied only if the legislation is sufficiently clear,
precise and unconditional, and if the legislation intends to confer rights. Many Treaty
Articles do not meet these criteria as they are mere statements of aspiration. Even if
Community legislation does meet the Van Gendcriteria, it may have only direct vertical
effect, rather than direct horizontal effect. If it has direct vertical effect it can be invoked by
an individual only against the State and against emanations of the State, such as health
authorities. A provision which has direct horizontal effect can be invoked against other
individuals as well as against the State and emanations of the State.Treaty Articles
The Treaty on the Functioning of the European Union has over 300 Articles. These are
directly applicable. Whether or not a Treaty Article has direct effect depends first upon
whether it satisfies the criteria in Van Gend. As we have seen, some will not satisfy these
criteria as they are merely statements of aspiration. Some of the Articles are much more
significant than others. Article 141 of the EC Treaty (formerly Article 119) requires Member
States to ensure and subsequently maintain the application of the principle that men and
women should receive equal pay for equal work, and the effect of this Article has been
highly significant.
Some Treaty Articles, like Article 141, have both direct horizontal and vertical effect,
others have only direct vertical effect. Whether or not they have direct horizontal effect
will depend upon the wording of the Article and the interpretation of the Article by the ECJ.
For example, Article 28 of the EC Treaty, which prohibits restrictions on the free movement
of goods, only has direct vertical effect. It can therefore only be invoked by an individual