On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-Executing, Supreme?

15 Pages Posted: 12 Aug 2008

See all articles by Alicia Hinarejos

Alicia Hinarejos

McGill University, Faculty of Law

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Abstract

This article seeks to, first, clarify the meaning and scope of an array of legal-effect labels which are often used interchangeably or in a loose way in the literature and, second, assess to what extent they can be applied to two kinds of very representative third pillar measures: Framework Decisions and Decisions, defined in Article 34(2) TEU. These labels are directly applicable, directly effective, self-executing and supreme. The main conclusion is that these are interconnected concepts, in that the way in which we define one of them may prejudge the scope and/or the role played by others. This is particularly so in the case of direct effect, expressly excluded in the Treaty definition of Framework Decisions and Decisions. Arguably, our definition of direct effect will determine whether these measures can develop other effectsespecially those emanating from the principle of supremacy (should we accept the latter as applicable to the third pillar). Further, the article argues that even if we adopt a narrow reading of direct effect that would allow for a hypothetical application of the principle of primacy to these third pillar measures, there are powerful reasons to reject the judicial extension of the Simmenthal duty to this area within the current framework of the TEU.

Suggested Citation

Hinarejos, Alicia, On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-Executing, Supreme?. European Law Journal, Vol. 14, Issue 5, pp. 620-634, September 2008, Available at SSRN: https://ssrn.com/abstract=1218687 or http://dx.doi.org/10.1111/j.1468-0386.2008.00433.x

Alicia Hinarejos (Contact Author)

McGill University, Faculty of Law ( email )

3644 Peel Street
Montreal, Quebec H3A 1W9
Canada

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