紀要論文 EU指令の「逆直接効果」に関する近時の判決からみた指令の直接効果の発展の方向性(1) : Viamex Agrar Handel & ZVK 判決およびPortgás判決を中心に
Recent Judgments by the Court of Justice of the European Union on the "Inverse Direct Effect" of Directives and their Implications on the Future Development of the Court's Jurisprudence (1)

柳生, 一成

14 ( 3 )  , pp.237 - 271 , 2015-11-10 , 一橋大学大学院法学研究科
ISSN:1347-0388
NII書誌ID(NCID):AA1161370X
内容記述
In the Viamex case and the Portugás case, the Court of Justice has recognized that State authorities can rely on the provisions of EU directives against undertakings before the national court, although the Court had long prohibited the "inverse direct effect", that is, State authorities' relying on the provisions of directives against individuals, including private undertakings. Whereas the Court's explanation on the consistency of two rulings with the case-law is very succinct, did the Court implicitly re-evaluate the theoretical underpinnings of the prohibition of the "inverse direct effect" ? Do those judgments foreshadow the further change in the case-law on the direct effect of directives ? Will the Court recognize the horizontal direct effect between private parties, which it has been consistently rejecting, based on the same reason as those of the "inverse direct effect" ? This contribution compares the past judgments with those judgments and proves that the Court is not likely to bring radical change to its case-law on the direct effect of directives in the foreseeable future, although the Portugás judgment added new development to the case-law.
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http://hermes-ir.lib.hit-u.ac.jp/rs/bitstream/10086/27610/1/hogaku0140302370.pdf

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