Supremacy and Direct Effect

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Supremacy and Direct Effect

• Ljiljana Biukovic
• Faculty of Law
• Fall 2007

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Supremacy

• ECJ held in Costa v. ENEL (Case 6/64) that
  supremacy of EC law does not come from MS
  constitutional law nor from international law but
  from a specific character of EC law itself
• BY CONTRAST WITH ORDINARY INTERNATIONAL
  TREATIES, THE EEC TREATY HAS CREATED ITS OWN
  LEGAL SYSTEM WHICH, ON THE ENTRY INTO FORCE OF
  THE TREATY, BECAME AN INTEGRAL PART OF THE LEGAL
  SYSTEMS OF THE MEMBER STATES AND WHICH THEIR
  COURTS ARE BOUND TO APPLY .
• BY CREATING A COMMUNITY OF UNLIMITED DURATION,
  HAVING ITS OWN INSTITUTIONS, ITS OWN PERSONALITY,
  ITS OWN LEGAL CAPACITY AND CAPACITY OF
  REPRESENTATION ON THE INTERNATIONAL PLANE AND,
  MORE PARTICULARLY, REAL POWERS STEMMING FROM A
  LIMITATION OF SOVEREIGNTY OR A TRANSFER OF POWERS
  FROM THE STATES TO THE COMMUNITY, THE MEMBER
  STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS,
  ALBEIT WITHIN LIMITED FIELDS, AND HAVE THUS
  CREATED A BODY OF LAW WHICH BINDS BOTH THEIR
  NATIONALS AND THEMSELVES.

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Supremacy

• Van Gend en Loos (Case 26/62)
• THE CONCLUSION TO BE DRAWN FROM THIS IS THAT
  THE COMMUNITY CONSTITUTES A NEW LEGAL ORDER OF
  INTERNATIONAL LAW FOR THE BENEFIT OF WHICH THE
  STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS,
  ALBEIT WITHIN LIMITED FIELDS, AND THE SUBJECTS OF
  WHICH COMPRISE NOT ONLY MEMBER STATES BUT ALSO
  THEIR NATIONALS . INDEPENDENTLY OF THE
  LEGISLATION OF MEMBER STATES, COMMUNITY LAW
  THEREFORE NOT ONLY IMPOSES OBLIGATIONS ON
  INDIVIDUALS BUT IS ALSO INTENDED TO CONFER UPON
  THEM RIGHTS WHICH BECOME PART OF THEIR LEGAL
  HERITAGE.

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Supremacy

• Does not depend on the hierarchy of a norm in
  Member State Legal Order
• Supremacy is an important means to ensure
  uniformity of interpretation and application of
  Community law
• Doctrine simply claims that EC law (primary and
  secondary) is superior over conflicting national
  law, including national constitutional law

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Supremacy

• Simmenthal (Case 106/77)
• 17. IN ACCORDANCE WITH THE PRINCIPLE OF THE
  PRECEDENCE OF COMMUNITY LAW , THE RELATIONSHIP
  BETWEEN PROVISIONS OF THE TREATY AND DIRECTLY
  APPLICABLE MEASURES OF THE INSTITUTIONS ON THE
  ONE HAND AND THE NATIONAL LAW OF THE MEMBER
  STATES ON THE OTHER IS SUCH THAT THOSE PROVISIONS
  AND MEASURES NOT ONLY BY THEIR ENTRY INTO FORCE
  RENDER AUTOMATICALLY INAPPLICABLE ANY CONFLICTING
  PROVISION OF CURRENT NATIONAL LAW BUT - IN SO FAR
  AS THEY ARE AN INTEGRAL PART OF , AND TAKE
  PRECEDENCE IN , THE LEGAL ORDER APPLICABLE IN THE
  TERRITORY OF EACH OF THE MEMBER STATES - ALSO
  PRECLUDE THE VALID ADOPTION OF NEW NATIONAL
  LEGISLATIVE MEASURES TO THE EXTENT TO WHICH THEY
  WOULD BE INCOMPATIBLE WITH COMMUNITY PROVISIONS .

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Direct Effect

• Doctrine that sets out the basic difference
  between the EC law and international law
• EC law creates individual rights as a regular
  part of its mandate (albeit under certain
  conditions) while international law creates such
  rights rather exceptionally
• Provisions of EC law may be invoked and relied on
  by private parties in legal proceedings before
  national courts
• Doctrine is a product of ECJ case law and it has
  a great political importance because it empowers
  individuals to control and track violations of EC
  law and to initiate actions for violation before
  national courts (Commission actions against
  Member States are the other way to control
  non-compliance)
• Doctrine has some similarity with estoppel
  principle it disallows Member States to gain an
  advantage from failing to implement EC law

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Direct Effect

• Origins of the doctrine - Van Gend en Loos (Case
  26/62)
• COMMUNITY LAW THEREFORE NOT ONLY IMPOSES
  OBLIGATIONS ON INDIVIDUALS BUT IS ALSO INTENDED
  TO CONFER UPON THEM RIGHTS WHICH BECOME PART OF
  THEIR LEGAL HERITAGE . THESE RIGHTS ARISE NOT
  ONLY WHERE THEY ARE EXPRESSLY GRANTED BY THE
  TREATY, BUT ALSO BY REASON OF OBLIGATIONS WHICH
  THE TREATY IMPOSES IN A CLEARLY DEFINED WAY UPON
  INDIVIDUALS AS WELL AS UPON THE MEMBER STATES AND
  UPON THE INSTITUTIONS OF THE COMMUNITY .

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Direct Effect

• Functional conditions
• The EC instrument establishing rights and
  obligations for individuals must be sufficiently
  clear and precise
• The established rights must be unconditional
  (self-executive) requiring no further action on
  behalf of the member state
• Are those rights invoked vertically (against the
  member state) or horizontally (against another
  individual or private party)?

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Direct Effect of Treaties

• Case law confirmed that the provisions on
  non-discrimination, competition, fundamental
  freedoms and citizenship have direct effect
• ECJ often uses direct applicability and direct
  effect interchangeably even though it is not
  correct according to EU legal scholarship
• Cases Van Gend en Loos and Defrenne

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Direct Effect of Regulations, Directives and
Other Measures

• Commission v. Italy (case 39/72), direct effect
  of regulations confirmed in order to enhance
  simultaneous and uniform application in the whole
  Community also Leonesio (case 93/71)
• Van Duyn v. Home Office (case 41/74) reconciled
  the nature of directives and the requirements for
  direct effect (precision, unconditionality, the
  absence of discretion and the absence of the need
  for implementing measures)
• It would be incompatible with the binding
  effect attributed to a directive by Article 189
  to exclude, in principle, the possibility that
  the obligation which it imposes may be invoked by
  those concerned

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Direct Effect of Directives

• Van Duyn (Case 41/74)
• 12. WHERE THE COMMUNITY AUTHORITIES HAVE, BY
  DIRECTIVE, IMPOSED ON MEMBER STATES THE
  OBLIGATION TO PURSUE A PARTICULAR COURSE OF
  CONDUCT, THE USEFUL EFFECT OF SUCH AN ACT WOULD
  BE WEAKENED IF INDIVIDUALS WERE PREVENTED FROM
  RELYING ON IT BEFORE THEIR NATIONAL COURTS AND IF
  THE LATTER WERE PREVENTED FROM TAKING IT INTO
  CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW ...
  IT IS NECESSARY TO EXAMINE, IN EVERY CASE,
  WHETHER THE NATURE, GENERAL SCHEME AND WORDING OF
  THE PROVISION IN QUESTION ARE CAPABLE OF HAVING
  DIRECT EFFECTS ON THE RELATIONS BETWEEN MEMBER
  STATES AND INDIVIDUALS.

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Direct Effect of Directives

• Pubblico Ministero v. Tullio Ratti (case 148/78)
  additions of the so-called estoppel
  reasoning the Member States which failed to
  adopt the implementing measure required by a
  directive in prescribed periods may not rely, as
  against individuals, on its own failure to
  perform the obligations which the directive
  entails thus, an individual could not rely
  upon the directive before the time limit for its
  implementation had expired
• Important direct effect was used in Ratti as a
  shield but in Becker the ECJ allowed it to be
  used as a sword

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Vertical and Horizontal Direct Effect

• An act has a vertical direct effect when it only
  confers rights to individuals against Member
  States and horizontal direct effects when it
  imposes also obligations on individuals in favour
  of Member States or other individuals
• Defrenne (Case 43/75) recognized that Treaty
  provisions are capable of having both vertical
  and horizontal direct effect
• Marshall (Case 152/84) established that a
  directive not addressed to an individual cannot
  of itself impose obligations on himTo give a
  horizontal effect to directives would totally
  blur the distinction between regulations and
  directives