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The Principle of Effectiveness
There is some autonomy left for the member states of the EU. This is, however, not absolute because in order to ensure effective and uniform application of EU law, the ECJ has formulated two requirements which national law must be able to meet in procedures where EU law rights are involved: the principle of equivalence or non- discrimination and the principle of effectiveness or minimum protection.57 More recently, a third requirement has come into place. National rules of procedure and remedies must comply with fundamental rights as guaranteed by the ECHR. We can conclude that in international law, effectiveness has its place. In EU law, the principle of effectiveness operates in the implementation and the execution of EU law. An effective procedural framework is a minimum norm. The framework is also seen as a general principle of EU law, which sometimes functions as a background principle and sometimes as underlining other principles. There is also a strong role in the development of the principle by the ECJ, in which the norm of effective judicial review is prominent. The consequence of these developments in international and EU law is that all the institutions on both levels are involved in the development of this principle of effectiveness.
6. Sources of the Principle of Effectiveness In international law and in EU law, the sources of the principle of effectiveness are international and EU regulations, their implementation at the national level, and the case law on the different levels. At the national level, effectiveness has for a long time not been regarded as a legal norm. Thus, many lawyers have not been particularly interested in the discussion about the concept of effectiveness. At the same time, lawyers were concerned with effectiveness in the context of legislation becoming ‘effective’ at a certain moment. However, lawyers are no longer uninterested in the principle of effectiveness. There are three reasons for the need for lawyers, even at the national level, to open their eyes to this principle and treat it as a legal principle. The first reason is internationalization and a growing interdisciplinary approach, both of which have grown enormously over the last ten years. The second reason is the importance of an effective transposition, implementation, and execution of international and European regulations at the national level. The third reason is conceptual: when there is a relationship between legal norms and facts, focusing only on the legal norm is too restrictive a legal perspective. These three aspects of the effectiveness principle in national administrative law will be elaborated upon below.
(a) Internationalization and interdisciplinary approach The internationalization of national law is growing. The importance of interdisciplinary approaches is growing, not only in the functional fields of law (like economic law, financial law, and environmental law) but also in the general fields of law, like administrative law (and public administration) and criminal law (and criminology). Both developments have increased the importance of the principle of effectiveness in the field of law. More specifically, administrative law has in the last twenty years started
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Widdershoven and others 2007, 292 ff.
