Desenvolvimento e Crítica do Princípio da Eficácia no Direito Privado Internacional da UE
| Autor | Dimitris Liakopoulos |
| Cargo | De Haagse Hogenschool, Haia, Estados Unidos |
| Páginas | 10-60 |
Recebido em: 13/02/2019
Revisado em: 18/07/2019
Aprovado em: 04/09/2019
http://dx.doi.org/10.5007/2177-7055.2019v41n82p10
Direito autoral e licença de uso: Este artigo está licenciado sob uma Licença Creative Commons.Com essa licença você
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Development and Critics of Effectiveness Principle
in EU International Private Law
Desenvolvimento e Crítica do Princípio da Eficácia no Direito Privado
Internacional da UE
Dimitris Liakopoulos1
1De Haagse Hogenschool, Haia, Estados Unidos
Abstract: The present work tries to give
some important insights and thoughts on the
principle of effectiveness in EU law according
to European Court of Human Rights. It also
gives light to difficulties and effectiveness’
impact on private international law. It is also
analyzed through the Charter of Fundamental
Rights of the European Union and art. 47 as an
access tool to justice, judicial protection and
effectiveness of the whole Union system.
Keywords: Principle of Effectiveness. Private
Enforcement. International Private Law.
European Union Law. CJEU.
Resumo: O presente trabalho discute algumas
ideias e faz reflexões importantes sobre o princí-
pio da eficácia no direito da UE, de acordo com
o Tribunal Europeu dos Direitos Humanos. Tam-
bém dá luz às dificuldades e à eficácia do im-
pacto no direito internacional privado. São tam-
bém analisados, por meio da Carta dos Direitos
Fundamentais da União Europeia e do artigo 47
como instrumento de acesso à justiça, a proteção
judicial e a eficácia de todo o sistema da União.
Palavras-chave: Princípio da Eficácia. Aplica-
ção Privada. Direito Internacional Privado. Di-
reito da União Europeia. CJEU.
1 Introduction
The principle of effectiveness is an inescapable concept for
understanding and justifying every legal system. This notion or principle
has very uncertain boundaries and similar but substantially different
points of view, often competing or interweaving. The formulas and
concepts adopted in this regard are continually challenged. Legal rules
Seqüência (Florianópolis), n. 82, p. 10-60, ago. 2019 11
Dimitris Liakopoulos
must be able to assert them providing guarantees ensuring their execution.
The characteristics of effectiveness in positive law are: a) on the one
hand its derivation or promanation from the authority, the exponential
organ of the society to which it refers; the exponential organ gives effect
to positive law, or vigor, because this organ is inherent to a social body,
of which it is an expression or representation; principle of effectiveness
means then “effective inherent to a social body” of positive law. If the
social inertia, assured by the exponential body, is lost, the positive right
is no longer effective; b) on the other, its reference to the whole positive
law, i.e. to the legal system considered in its entirety. This is because in a
given legal system there can be a rule, nothing or a violated law. But the
nullity as violation of norms, as well as the repeal of a single norm or of
several norms together, does not affect legal system’s validity as a whole
(POILLOT, 2014).
This notion has been further clarified. Legal system validity is in
dependence relationship with men real behavior. And it is within such
a view that effectiveness on a territory and at a specific population
is recognized as an indefectible character of the need for a new (state)
legal system; that is, the only decisive element, i.e. effectiveness of the
new order. In this perspective the principle of effectiveness determines
not only the sphere of validity of the legal (state) systems but also the
foundation of their validity.
See: CJEU, C-587/17P, Belgium v. Commission of 30 January
2019, ECLI:EU:C:2019:821, published in the electronic Reports of
the cases.
It is certainly true that with regard to this approach it has been
critically observed that it assigns an excessive emphasis (BLUMANN,
2007; CUNIBERTI, 2008) and a logical overestimation of the principle
of effectiveness. But it is also true that it was precisely thanks to the
principle of effectiveness that it was affirmed in contemporary positivist
thought. It is well highlighted in the expressions in virtue of which not
reality must be subordinated to the concept but this to that. Law is only
that which has had the scope of becoming and of imposing itself as a
12 Seqüência (Florianópolis), n. 82, p. 10-60, ago. 2019
Development and Critics of Effectiveness Principle in EU International Private Law
positive right. The current life and effective vitality of law are therefore
essential elements of stability and perpetuation over time.
We are well aware that law cannot be exhausted in its mere existence
of fact. Its effectiveness must be qualified by the presence of recipients
aware of belonging to a community that recognizes itself as such, as
well as being provided with rules of government and specific guarantees
aimed at enabling its implementation. And yet this government and these
guarantees must operate steadily without interruption and according to
criteria of publicity.
In this sense, the rules for being juridical must be part of a concrete
and effective social organization in whose system must be systematically
inserted and thanks to which they must be able to direct themselves and to
reach immediately their recipients.
2 Effectivity of Law and Judicial Protection: a relationship
difficult to define
We can speak of effectiveness with reference to the publicity
dimension of supranational law, and this in relation to the work of
Luxembourg judge and the procedural remedies provided for by the
Treaties for violations deriving from Institutions behavior. According
to a first meaning, the jurisprudence would indicate the relationship
of correspondence between Union law understood in its general and
abstract formulation, and the concrete content of the normative precept
that can be found on the Court of Justice of the European Union (CJEU).
In a second sense, then, the effectiveness would assume the contours
of correspondence between substantial legal situations, attributed to
individuals by norms originating from the Union, and legal juridical
situations, always deriving from the same order and functional to the
satisfaction of underlying interests. Again, in a final sense, effectiveness
could be understood as relationship between CJEU decisions and social
reality on which they are to affect.
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