A more recent version of these Supremacy And Direct Effect notes – written by Oxford students – is available here.
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THE RELATIONSHIP BETWEEN EU AND NATIONAL LAW: SUPREMACY AND DIRECT EFFECT Abbreviations: ECJ European Court of justice MSs Member states (of the EU) EP European Parliament CFSP Common Foreign and Security Policy TEU Treaty on EU (Maastricht) TFEU Treaty on the Functioning of the EU (Rome) EEC Treaty Treaty establishing the Economic European Community DE Direct effect
Development of the doctrine: I) Starting point: distinction between public and private enforcement.
Art 258 TFEU: express mechanism for public enforcement (Comm can sue MS before ECJ)
LIMITATIONS: Comm doesn't have capacity to prosecute that many infringements, and Art can't be used against private individuals.
- Hence, public enforcement in itself was insufficient. II) ECJ thus legitimated private enforcement. Treaty articles can have direct effect = indivs can rely on them before their national courts and challenge MS action for violation of EC law
For MSs with dualist approach, ECJ held that EEC Treaty was different from other treaties, hence did not require implementation to be directly enforceable by citizens. III) But from the start, there was uncertainty as to the exact meaning of "direct effect'
Broader approach: capacity of provision of EU law to be invoked before a national court (Van Gend en Loos, 1963) - "objective" direct effect
Narrower approach: capacity of provision of EU law to confer rights on individuals which they may enforce before national courts - "subjective" direct effect
- ECJ has gone beyond a simple 'right to invoke' EU law, instead allowing individual to rely on the substantive right. IV) Notion of direct effect was then expanded, beyond Treaty articles.
Conditions for DE were loosened
DE applied to Regs and Decisions as well. V) Judicial focus then shifted to Directives.
Some questioned if Directives could even have DE at all, since they didn't meet the conditions laid down in Van Gend.
But ECJ held Directives were capable of vertical DE. VI) Subsequently, the vertical/horizontal divide has generated a complex jurisprudence.
ECJ created doctrine of 'indirect effect' = national courts have obligation to interpret national law in conformity with Directives.
Also have concept of 'incidental horizontal effects' = where Directive precludes reliance on national law which is inconsistent with Directive's provisions, even between private parties. Premised on distinction between 'exclusionary' and 'substitution' effect.
Recent development of doctrine of general principles of law, which apply horizontally, but which may draw substantive content from Directives.
Allowed for Directives to be enforced horizontally where referred to in Regs.
Types of EC Legislation with Direct Effect Note that all binding forms of Eu law are capable of having DE, while non-binding law may have indirect effect!
1. Treaty provisions 1
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First originated in Van Gend en Loos, 1963:
C imported chemicals from Germany into Netherlands, and was charged with import duty which C alleged had been increased after EEC Treaty came into force, contrary to art 12 EEC.
Preliminary reference made to ECJ under art 177 EC: whether art 12 EEC had direct application such that citizens could claim individual rights for court protection.
ECJ Basically held that EEC Treaty is different from other standard international treaties created a new legal order of international law, such that its provisions could have direct effect.
NB: the ECJ's vision was very different from that advanced by MSs, in stating that the Community was not just an inter-state issue, but was extended to citizens of MSs.
Textual argument: Preamble referred to citizens as well as states, and citizens were envisaged as having a role to play under the Treaties. But unsupported cos we don't have travaux preparatoires. Still, true that there is no limitation in art 177 EC (now art 267 TFEU) to limit its use to public bodies.
ECJ's reasoning was somewhat circular: saying that EC is a new legal order depends on it being distinguished by the availability of DE itself.
ECJ developed doctrine of DE to provide legal system it thought necessary to carry out the ambitious economic/political aims of the Treaties.
[Pescatore]: noted that the notion of the Treaty creating Community of not just states, but also peoples/persons, hence bringing individuals within the scope of subjects of EC law, is a political idea based on perception of the Community's constitutional system.
Prerequisites for DE:
1. Clear, negative and unconditional
2. Not qualified by any reservation
3. Does not require intervention/further action by MS for implementation.
Allows for private enforcement and supervision, in addition to the public enforcement carried out by the Comm and MSs.
Broadening of conditions for DE
ECJ was concerned that Community aims should not be ignored by MS/Community institutions, especially during the legislative stagnation after the Luxembourg Accords.
[Weiler]: obstacles against achievement of Community objectives due to political process/decisional supranationalism led to growing focus on normative supranationalism instead, allowing ECJ to develop EC law, circumventing difficulties in the legislative process.
On the requirement that Treaty provision be unconditional and not be qualified by MS' reservation
SpA Salgoil v Italian Ministry of Foreign Trade, 1968: ECJ held that existence of MS discretion to prevent free movement of goods on grounds in art 36 TFEU did not preclude DE of art 34 TFEU, since grounds in the former were exceptional and did not undermine the clear obligation in art 34.
Van Duyn, 1974: ECJ held that limitations on free movement of workers permitted in art 45(3) TFEU did not preclude art 45 from having DE, since these limitations were to be applied under judicial control.
Hence, even where MSs have discretion, provisions might still have DE if exercise of MS discretion is under judicial control!
On the requirement that no further implementation measures are required at national level
ECJ relaxed this by focusing on the basic principle governing the relevant area, and according it DE as long as it was sufficiently certain.
Reyners v Belgium, 1974: art 49 TFEU provided for restrictions on freedom of establishment to be abolished within a framework of provisions, the framework including a general programme and a set of directives (most of which hadn't yet been implemented). ECJ held that art 49 imposed an obligation to attain a precise result, which was to be made easier by, but not dependent on, the implementation by MS of the directives. Hence, deemed the basic principle of non-discrimination to have DE!
Hence today: Treaty article will be accorded DE provided it was intended to confer rights on individuals, and it is sufficiently clear, precise and unconditional.
Leaves ECJ with quite a bit of flexibility.
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"unconditional" = sets out obligation that is not qualified by any condition/subject in implementation to EU institutions or MSs taking any measures. "precise" = obligation set out in unequivocal terms
Vertical and horizontal DE
While most cases will be of vertical DE (against state/emanation of the state), it is clear that Treaty articles can have horizontal DE against private party too!
Viking Line case, 2007: dispute arose between trade unions and Viking Line (shipping company), with trade unions seeking to prevent VL from shifting legal base to Estonia as workers would get lower pay. VL said this violated Treaty provisions on freedom of establishment.
ECJ held that these provisions had horizontal direct effect
Fact that they are formally addressed to MSs does not prevent simultaneous conferral of rights on any indiv who has interest in compliance. Otherwise, private parties would be able to neutralise the abolition of state barriers.
Pretty uncontentious that Regs have DE! They amount to law in each MS as soon as they come into force, and apply within MS as legally complete instrument - no need for implementation.
Art 288 TFEU: a Reg "shall be binding in its entirety and directly applicable in all MSs" - seems to envisage that Reg will become part of domestic law automatically, without needing transposition.
If so, then assuming provisions are sufficiently clear, precise, and relevant to C's situation, they should be capable of being relied upon and enforced by indivs before national courts!
Hence still subject to Van Gend en Loos criteria.
Slaughtered Cow case, 1973 and Munoz, 2000: ECJ confirmed the DE of Regs.
Amsterdam Bulb, 1977: it is only if national measure alters/obstructs/obscures the DE or nature of the Reg, that it will constitute a breach of EU law.
Reflects concern that if national measure conceals fact that it is a Union Reg, this would be bad for EU law since certain particular qualities of EU law would be obscured.3. Decisions
Note the change in the wording of the relevant Treaty articles:
Art 249 EC: 'a decision shall be binding in its entirety on those to whom it is addressed'
Art 288 TFEU: 'a decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them'.
Effect of the change?
In Grad, 1970, ECJ held that despite the lack of reference to 'direct applicability' in art 249 EC, a decision could still be directly effective - relied on principle of effectiveness.
So, already had DE from the start!
But wording makes it clearer that there may be horizontal DE: where decision is addressed directly to private party, hence binding it.
Same conditions as in Van Gend en Loos: sufficiently certain, precise and unconditional.4. ***Directives a. Direct effect at all?
Yes! But different reasoning from Treaty provisions (principle of effectiveness), Regulations (textual), and Decisions (binding nature).
Different cos Directives impose obligations of result on MSs.
Prescribed result meant to be achieved by amendment of national law.
If properly implemented, there's no need at all for reliance on direct effect of Directive itself (hence not an innate quality of Directives)
Further, if aim is set out generally, it might not be sufficiently precise.
Still, principle of effectiveness may help to explain the need for direct effect. Hence ECJ sought to allow legal effectiveness of directives, even in absence of implementation.
3 reasons given, first 2 in Van Duyn (first case to consider DE of Directives), and the 3rd in Ratti. 3
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Functional: directives are binding, and will be more effectively enforced if indivs can rely directly upon them ii. Textual: art 267 TFEU permits national courts to refer qns on any EU measure to ECJ, including directives - implies directives can be invoked by indivs before national courts. iii. Estoppel: MSs precluded from refusing to recognise binding effect of directives pleaded against them, by their failure to implement it properly. Hence, directives can have DE - depends on whether the provision is sufficiently clear, precise and unconditional.
If content of indiv's right can be determined with sufficient precision from the directive, it does not matter that MSs have discretion to chose means of implementation.
existence of discretion does not rule out DE of a directive.
Going one step further, in Kortas, 1999, ECJ decided that harmonising directive (under art 95(4) EC) was not prevented from having DE just cos there was possibility for MS to derogate from it. Controversial, as this was held to be the case even where MS had sought permission for derogation and Comm had unreasonably failed to respond.
so shouldn't MS not have been bound by directive?
Timing: general principle that DE starts after the deadline for implementation.
hence, time limit for implementation should have expired!
**But can still have an impact before deadline
Inter-Environmental Wallonie, 1997: even before deadline had passed, MS had to refrain from adopting any measures liable to seriously compromise the result prescribed by the directive.
The vertical/horizontal distinction
Marshall v Southampton and South-West Hampshire AHA, 1986: ECJ held that directive can only have vertical, but no horizontal, DE.
i) Marshall: textual - art 288 TFEU states that binding nature of directive exists only in relation to MS to which it is addressed. But 2 problems:
Wording itself does not mention whether directive can impose obligation on private indiv; only mentions binding nature on MS
There are other Treaty articles which are also explicitly addressed only to MSs, yet ECJ did not see a problem with allowing them to be horizontally directly effective. Eg. In Defrenne 1, ECJ allowed art 157 TFEU to be relied upon against individuals, reasoning that the provision is mandatory in nature. ii) AG Slynn's opinion in Marshall: rule of law - directives prior to Maastricht Treaty didn't have to be notified/published, hence lack of publicity. But this problem is overcome today. Further, time-limit for implementation reduces this concern. iii) Erode distinction between regulations and directives: having horizontal DE would allow directives to have legal impact even without implementation.
But key distinction is actually that MSs have choice as to form/method of implementation for directives, and giving horizontal DE will not undermine this!
iv) Wells, 2002: legal certainty compromised. v) But can be overcome by limiting DE to directives which are sufficiently clear, precise and unconditional. Compare with the more obvious problem of legal certainty faced in the doctrine of indirect effect/incidental effect, which qualify the lack of horizontal DE.
Expanding the scope of vertical direct effect (overcoming the unfairness the distinction can cause) A broad concept of the state
Marshall: ECJ held that the Health Authority could be regarded as an organ of the state, regardless whether the latter was acting in the capacity of ER/public authority.
**Foster v British Gas, 1990: BG was a nationalised industry which had monopoly of gas-supply system in Great Britain.
Held that vertical direct effect was available against organisations subject to State authority/control, or which had special powers beyond those resulting from normal rules applicable between private individuals. 4
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