The difficulty with such an argument in the civil jurisdiction sphere is that stays of proceedings concern transfers of actions abroad, not persons. Notwithstanding, arguments for the application of the indirect effect doctrine in this context are still applicable because the situations are “essentially the same.” Indeed, it could be argued that staying proceedings amounts to a transfer of persons through effective compulsion. Nevertheless, no authority exists for this argument and indeed the indirect effect doctrine itself has not been successfully relied upon in an Article 6 context before the (former) Commission or ECtHR.
Third, through indirect effect where enforcement in a Contracting State of a judgment from a foreign State, whether Contracting or non-Contracting, would breach Article 6 because that judgment itself breached Article 6 standards. It has been stated that such a breach by the foreign court must also be a flagrant one. However, the reasoning underlying this proposition is unclear and, as with many matters in the civil jurisdiction and judgments sphere, there are concerns as to the extent to which the right to a fair trial can be upheld in this respect.
Long since inevitable initial encounters, human rights concerns, particularly regarding the right to a fair trial under Article 6 of the European Convention of Human Rights (ECHR), have been accelerating in today’s civil jurisdiction and judgments arena in the United Kingdom, a notable consequence of the passing of the Human Rights Act (HRA) 1998. More than six years from the Act’s coming into force, it is now imperative to reach conclusions which reflect the “importance attaching in today’s world and in current international thinking and jurisprudence to the recognition and effective enforcement of individual human rights,” as Mance LJ (as he then was) has noted. This necessity is reflected in the recent extensive consideration of the right to a fair trial in key works of some of the most authoritative conflict lawyers in the United Kingdom, including Sir Lawrence Collins, Professor Adrian Briggs and, most significantly, Professor James Fawcett.
Depending on the nature of your dissertation, you may need to set the scene further. In a legal dissertation, by “scene” is meant the bits of law that are relevant to set up key arguments in the main body of the dissertation. With this example dissertation, the target readership was, for various reasons, international private law experts. Because human rights law was a key part of the debate, the relevant law had to be set out in such detail that the chapters following it could discuss, for instance, the right to a fair trial and the doctrines of direct and indirect effect without any need for constant repetitive explanation.
So, to the introduction, set the scene as fast as possible then tell the reader what you are going to say, but don’t be so amateurish as to write “I am going to discuss X, Y and Z”. Be more indirect. Suggest, for instance, that there are problems with the law that need to be resolved.
• Thus the agreement does not confer rights that can be relied on before the national courts and does not have direct effect. Germany v Council (ECJ 1993)
• This envisages that individuals will rely on Community rights in the Courts. Thus the Community consitutes a new legal order, for the benefit of which the Member States have limited their sovereign rights. The provision in question is ideally suited to take direct effect.
indirect discrimination = ‘arises where a working situation, while ostensible neutral between genders, favours one sex over the other’
PRECEDENT SETTER FOR HORIZONTAL DIRECT EFFECT W.R.T REGULATIONS
She was refused entry to the UK, on the basis of prejudice against Scientology
Van Duyn attempted to claim against the Home Office using the above provision (given that the derogation should be based on her own personal conduct, and shouldn’t be related to Scientology)
The CJ agreed that Van Duyn was protected by rights under the above directive
(however, Van Duyn’s case was ultimately unsuccessful, as it was also decided that ‘association’ is part of personal conduct...
In Van Duyn v Home Office the European Court of Justice ("the Court") confirmed that Directives are capable of having direct effect. In Marshall No.1 the Court, interpreting then Art. 189 EC (now Art. 288 TFEU), enunciated that 'vertical' direct effect, i.e, direct effect invoked by a private party against the state, is permissible, whereas 'horizontal' direct effect, i.e, direct effect invoked by a private party against another, is not. Against the backdrop of this general denial of horizontal direct effect, i.a, three key developments emerged that whittle down the restriction on horizontal direct effect and carve substantial conceptual inroads into its underlying rationale.
(1) Evolution of the European Union
(2) Institutions and Law-Making of the European Union
(3) Sovereignty and EU Law
(4) The Authority of EU Law outside the EU
(5) Subsidiarity and the role of national parliaments
(6) Policing of National Observance of EU Law
(7) Judicial application of Union law within the Member States (e.g. Direct effect, indirect effect, state liability) and relations between the Court of Justice and National Courts
(8) Fundamental Rights
(9) The euro area crisis
(10) Free Movement of Goods
(11) Free Movement of Persons and European Citizenship
(12) Free Movement of Services and Establishment
(13) The Area of Freedom, Security and Justice and the European Arrest Warrant
(14) EU Social Policy and Anti-Discrimination Law
however, had she not been associating with Scientology, the direct effect of directives would have been applicable
Ratio decidendi (re: directive being directly effective): whilst directives involve discretion w.r.t the way in which they are to be achieved, they do not allow for discretion w.r.t the achievement of the ultimate goal.
• There is a distinction between direct and overt discrimination which is clearly in contravention of the principle of equal pay for equal work and indirect and covert discrimination in which a wider range of criteria must be adjudicated upon.