Supremacy and Direct Effect

1. Supremacy and Direct Effect Ljiljana Biukovic Faculty of Law Fall 2007

2. 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”.

3. 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.”

4. 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

5. 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 .

6. 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

7. 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 .”

8. 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)?

9. 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

10. 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”

11. 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.”

12. 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

13. 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 him…To give a horizontal effect to directives would totally blur thedistinction between regulations and directives