The Exclusionary Effect of EU Directives Against Contradictory Measures Adopted by Member States

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  • 加盟国法に対するEU 指令の排除的効果に関する一考察　―　近時のEU 司法裁判所の判決に関連させて　―
  • カメイ コクホウ ニ タイスル EU シレイ ノ ハイジョテキ コウカ ニ カンスル イチ コウサツ : キンジ ノ EU シホウ サイバンショ ノ ハンケツ ニ カンレン サセテ

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Abstract

The Kücükdeveci judgment confirmed the established case-law on the prohibition of the horizontal direct effect of directives. However, after Kücükdeveci the CJEU rendered several preliminary rulings that apparently contradict this case-law. They obliged national courts to preclude conflicting laws of Member States with directives, especially Directive 2000/78. This article picks up some recent judgments among those rulings and tries to reconcile them with the case-law, in reference to a theory recognizing the exclusionary effect of directives, which is a differentiated concept from the direct effect. The exclusionary effect can be understood as a corollary to recognizing direct applicability to directives, along with the primacy of EU law. This theory has gained some support from Advocate Generals and in the legal literature. Recently, some judges of the CJEU have also recognized this effect in their private works. Therefore, putting emphasis on direct applicability, this article analyzes the theory in search of a persuasive explanation of the consistency of jurisprudence on the effects of directives that have long been developed by the Court, although the whole picture of jurisprudence is not still clear.

Journal

  • 一橋法学

    一橋法学 13 (2), 125-191, 2014-07-10

    一橋大学大学院法学研究科

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