Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.

   Podcast: the Good     

The status of European Union (EU) law within the legal systems of its Member States is of fundamental importance. Firstly, it is necessary to be clear which source of law will take precedence should there be conflict between EU and national law while, secondly, it is  important to understand who may gain rightsand obligationsunder EU law, including how such EU rights and obligations may be enforced. Rather surprisingly, the founding Treaties did not address these questions directly and the original Member States assumed that Community law (now Union law) would have the same domestic impact as international law.  The Court of Justice of the European Union (ECJ) took a different approach, however, developing two fundamental principles, which have become known as the ‘Twin Pillars upon which the Community rests’; namely those of supremacy and direct effect. (1) The introductory paragraph puts the question into context by explaining why it is so important that the 'European Union has clarified and developed the status of its laws', as well as how. By introducing the main concepts through which this has been achieved, namely supremacy and direct effect, the student has demonstrated that they have correctly analysed the requirements of the question and are aware of the main issues for discussion.

While the ECJ did not address the issue of supremacy directly in Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (Van Gend, it explained, importantly, that Community law constituted a ‘new legal order ... for the benefit of which the States have limited their sovereign rights, albeit within limited fields’. This judgement resulted in recognition that EU law should be applied over any inconsistent national rule and it is clear from the Court’s dicta that to allow national law to be applied in preference to EU law would have severely undermined the ability of the EU to achieve its aims. Thus, the doctrine of the supremacy (or primacy) of Community law was established.

The precise implications of the doctrine of supremacy were addressed in Case 6/64, Costa v ENEL, where the Court confirmed that EU law must take precedence even where national law had been enacted subsequent to EU law. Drawing heavily on the spirit and aims of the (then European Economic Community or EEC) Treaty, the Court pointed out that the uniformity and effectiveness of Union law would be jeopardised should national law be allowed to take precedence. The Court referred directly to the text of the EEC Treaty to support its judgement, arguing that Art 189 EEC  (now Art 288 Treaty of the Functioning of the EU or TFEU), which provides for the direct applicability of regulations, would be meaningless if Member States could negate their effect by enacting subsequent, conflicting legislation. (2) The second and third paragraphs demonstrate the student's knowledge and understanding of one of the issues central to answering the question – that of supremacy. Discussion is well supported by appropriate use of legal authority.

In later cases the ECJ developed this principle further by providing, in Case 11/70, Internationale Handelsgesellschaft, that EU law is supreme over all forms and sources of national law. In addition, in Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal, the Court provided that where conflict arises between national and European law, the national rule must be immediately set aside by the domestic court, whatever its status within the state’s court hierarchy. (3) This paragraph demonstrates that the student has more that just an outline knowledge of the doctrine of supremacy by clearly showing understanding of how the principle has been developed and expanded through further ECJ judgements.

In addition to touching upon the issue of supremacy, the ECJ further developed the EU legal order in its Van Gend judgement, which is widely acknowledged as being one of the most important, if not the most important, decision in the European Union's development. Van Gendhad imported goods from Germany into the Netherlands and was required by Dutch law to pay customs duty. Van Gend challenged the legality of the duty, claiming that it was an infringement of Art 12 EEC (now Art 30 TFEU). The Dutch tribunal made a reference to the ECJ, under the preliminary reference procedure (now set out in Art 267 TFEU), in order to clarify whether the Treaty Article could be applied directly by the national court.

In order to arrive at its decision in Van Gend, the Court relied not only on the wording of the Treaty, but also on the spirit and aims of the EU, declaring that it constituted a new legal order which conferred both rights and obligations on individuals, as well as on Member States. The Court further concluded that national courts must protect such rights. In other words, the ECJ provided that EU law has direct effect, meaning that it is capable of placing rights and obligations on individuals as well as states and that such rights and obligations are enforceable by national courts.  Not all EU law is, however, capable of direct effect and it is now clear that any provision must first fulfil certain criteria, which have become known as the Van Gend or Reyners criteria (from Case 2/74, Rayners v Belgian State).  The criteria provide that, in order to have direct effect, EU law must be (i) sufficiently clear and precise, (ii) unconditional (iii) not subject to any further implementing measures. (4) Paragraphs five and six move on to demonstrate the student's knowledge and understanding of the second issue central to answering the question – that of direct effect. The appropriate use of legal authority continues to give the essay weight and provides the reader with confidence in the discussion provided by the student.

While the Van Gend case provided authority that obligations contained in Treaty articles can be enforced against Member States, in later cases the ECJ has been required to consider, firstly, whether EU law can also be enforced against individuals and, secondly, whether sources of EU law other than the Treaty articles may be capable of direct effect.  The first of these questions was considered in Case 43/75, Defrenne v Sabena, in which the Court provided that rights and obligations contained in Treaty articles may be enforced not only against Member States and  public bodies (known as vertical direct effect) and but also against individuals and private bodies (known as horizontal direct effect). Further, in Case 9/70, Franz Grad, the Court provided that regulations could be directly effective provided they fulfil the Van Gend criteria. As with Treaty articles, regulations may be enforceable both vertically and horizontally.  The issue of whether directives can have direct effect has, however, been far more controversial.

Art 288 TFEU provides that directives require implementation into national law by a state’s legislative body before taking effect. The Court has, however, held that where there has been a failure to properly implement a directive into national law by a Member State, the directive may give rise to direct effect (Franz Grad and Case 41/74,Van Duyn) providing the date for final implementation of the directive has past (Case 148/78, Pubblico Ministero v Ratti).  The ECJ held that this was necessary in order to ensure the effectiveness of directives and also to stop states from relying on their own ‘wrongdoing’, should they fail to incorporate a directive into domestic law. The Court further explained that directives could, however, only be enforced vertically and not horizontally (Case 152/84, Marshall).

This last requirement had the unfortunate effect of discriminating between individuals who wish to enforce their EU law rights against a state, as compared to those wishing to pursue the same rights against an individual. The Court has attempted to mitigate such discriminatory effects in a number of ways, firstly by providing a wide interpretation of ‘state’. In Case C-188/89, Foster v British Gas, guidance was provided on what bodies may come within the meaning of ‘state emanation’, that is, organisations or bodies that have been made responsible for providing a public service, and/or are subject to the authority or control of the State, and/or have special powers beyond those that result from the normal rules applicable to relations between individuals. (5) Paragraphs seven to nine demonstrate that the student is aware of the development of the principle of direct effect by the Court in response to questions put before it by the national courts. Thoughtful structure allows the reader to be lead logically and progressively through the issues. Again, argument is well supported by appropriate authority. Reference back to the question is also helpful.

The limitation on the horizontal direct effect of directives without doubt lessened their effectiveness and, in an attempt at remedying this, the Court developed further principles, which have clarified and developed the status of EU law,  including that of ‘indirect effect’. In Case 14/83, Von Colson, the Court reminded Member States of their duty, originally provided under Art 10 of the EC Treaty (TEC) to ‘take all appropriate measures … to ensure the fulfilment of the obligations arising out of this Treaty’,  and to  ‘facilitate the achievement of the Community’s task’, and  explained that this places an obligation on national courts to interpret and apply national law in a manner that is consistent with the wording and purpose of directives. It is, however, clear that there are limits on the application of indirect effect and the ECJ has confirmed that national courts need only interpret national law to conform with directives ‘in so far as it is possible’’ (Case 80/86, Kolpinghuis Nijmegen).  

A further means of circumnavigating the restrictions placed on the enforceability of directives is provided through ‘incidental effect’, as set out in Case C-194/94 CIA Security International SA v. Signalson SA and Securitel Sprl.  This principle provides that, where an individual attempts to invoke a directive against another individual in order to demonstrate the illegality of national legislation, the directive should be applied even where this has impact on the third party, providing that no legal obligations are imposed directly on the individual as a result. Once more, the Court cited the enhanced effectiveness of directives as its aim in allowing what would appear to be direct effect ‘through the back door’. Due to its limitations, it should be noted, however, that the ‘incidental effect’ of directives has arisen only in very limited circumstances.

In view of the limitations placed on the direct effect of directives, and despite the possibility of enforcing rights under the principles of indirect and incidental effect, a number of barriers may still exist with regard to the enforcement of rights emanating from a directive: there may, for example, be no national law to interpret or interpretation may simply not be possible due to the wording of the national legislation being very precise. In Cases C-6 and 9/90, Francovich and Bonifaci v Italy, the ECJ held that, should a Member State fail to incorporate a directive into national law, an individual who suffers damage as a consequence may claim compensation from that state. In Francovich the Court’s decision related to a Member State’s failure to fulfil its obligations in relation to directives but in Cases C-46 & 48/93, Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport ex p Factortame Ltd, the Court further confirmed that damages could also be available in situations where a Member State had failed to fulfil obligations derived from other sources of Union law. The Court has made it clear that certain criteria must be fulfilled before such damages will be available, namely (i) the rule must confer rights on individuals (ii) the breach must be sufficiently serious, (iii) there must be a direct causal link between the breach and the damage caused. In addition, it would now appear that such actions have been extended to include those against private bodies, where no national remedy is available for the breach (Case C-453-/99, Courage Ltd v Crehan). (6) Paragraphs ten to twelve further demonstrate the writer's broad understanding and perspective by considering how the ECJ have responded to further problems associated with the impact of EU law by developing additional means though which EU rights and obligations can be enforced.

Membership of the European Union has resulted in states having an additional source of law – that of EU law. As Treaties have been less than explicit as to the status of European law on the legal systems of its Member States, it has been left to the ECJ to clarify and develop principles such as supremacy and direct effect. The impact of these principles on the EU’s legal system has been profound, elevating its relevance and ensuring its uniform effectiveness throughout the Union. (7) The final paragraph demonstrates the writer's skill of synthesis. It brings together the various threads found in the main body of the answer and attempts to use the facts and arguments provided to answer, briefly, the specific question set. As is appropriate in a conclusion, it doesn't attempt to introduce any new information. (8) This essay demonstrates the requirements of an 'excellent' piece of work. It shows that the writer has correctly analysed the specific requirements of the question set, thought about the topic, understood the issues and has a sophisticated grasp of the law and its implications. It is coherent and well written and has a clear structure, namely an introduction, discussion including an attempt at evaluation and, finally, a conclusion. It contains an accurate account of the law and is supported by accurate and appropriate use of statute and case-law to illuminate discussion. It also shows evidence of wider reading and intelligent use of resources.

Bibliography

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Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.

   Podcast: the Fair     

In order to make the impact of EU law clearer, the Court of Justice (ECJ) has developed two important principles which have become known as the ‘Twin Pillars upon which the Community rests’. These principles are known as supremacy and direct effect.(1) Unlike the 'excellent' essay, the introductory paragraph fails to attempt to put the question into context by explaining why it is so important to be clear about the status of EU law on the legal systems of its Member States. It does, however, introduce the principles of supremacy and direct effect, albeit briefly, thereby demonstrating that the central principles necessary to answering the question have been analysed.

In regard to the supremacy of EU law, in Case 26/62, Van Gend en Loos (Van Gend),   Mr Van Gendhad imported a quantity of chemicals from Germany into the Netherlands and was required, by Dutch law, to pay customs duty to the Dutch authorities. The importers were unhappy about paying this customs duty and claimed that it went against Art 12 EC, which provided that customs duties levied on goods moving between Member States were prohibited. The Dutch tribunal sent the question to the ECJ under the preliminary reference procedure and the Court explained that Community (now Union) law was a ‘new legal order of international law’.

In Case 6/64, Costa v ENEL the ECJ went further.  Italy had nationalized its electric industries and a lawyer named Mr Costa, who owned shares in one of the electricity companies which had been nationalised, claimed that the way in which the company had been nationalised was against EU law and protested by refusing to pay his electric bill. An Italian court referred the case to the European Court of Justice in order to clarify the question and the European Court of Justice explained that EU law must take precedence over national law, even where the national law had been enacted after the conflicting EU law. This ruled out the possibility of later national law taking precedence over European law under the concept of ‘implied repeal’ (i.e., a process recognised under UK law whereby later law will always be presumed to have automatically repealed any conflicting earlier enacted law). (2) The second and third paragraphs demonstrate the student's knowledge and understanding of the doctrine of supremacy. The information provided is, however, far more descriptive than that provided in the 'excellent' essay, relying a little too heavily on the relatively irrelevant facts of the cases, rather than providing evaluative discussion of principle and its development by the Court of Justice.

With regard to the principle of direct effect, the ECJ stated the principle in the case of Van Gend en Loos. As explained above, Mr Van Gendhad imported goods from Germany into the Netherlands and was required by Dutch law to pay customs duty. In order to arrive at its decision in Van Gend, the Court looked at the wording of the EEC Treaty and also considered what the EEC had set out to do. It came to the conclusion that EU law ‘conferred both rights and obligations on individuals, as well as on Member States’. The European Court also said that national courts could decide cases that were based on European law. In other words, the ECJ provided that EU law has direct effect, meaning that it gives rights and obligations to individuals as well as states and that such rights and obligations should  be enforced in the national courts of the Member States.  However, it also stated that EU law will only have direct effect if it can comply with certain criteria known as the Van Gend criteria. The criteria are that EU law must be (i) sufficiently clear and precise, (ii) unconditional (iii) not subject to any further implementing measures. (3) The fourth paragraph demonstrates the student's knowledge and understanding of the doctrine of direct effect, but again is far more descriptive than that provided in the 'excellent' essay.

However, things were not as straightforward as they may seem. In Case 43/75, Defrenne v Sabena, a stewardess named Gabrielle Defrenne worked for an airline called Sabena. The airline paid her less than the male stewards who did the same work as she did. Ms Defrenne complained that this was against EU law, in particular, the rule that says that men and women must get equal pay for equal work. In Van Gend the law contained in the EC Treaty had been enforced against the Dutch state but as Sabena was not part of the State but a private company, this meant that the ECJ had to consider whether EU law could also be enforced against a private party. The ECJ said that EU law could be enforced against both a Member State, which is called vertical direct effect, and also against a private party, which is called horizontal direct effect. 

Next the ECJ had to decide whether only Treaties have direct effect or whether other sources of European law, such as regulations and directives, could also have direct effect. In Case 9/70, Franz Grad, the Court provided that regulations could have direct effect provided that they are able to fulfil the Van Gend criteria. The Court also said that regulations can be enforced both against the Member States, that is, vertical direct effect, and against private individuals, that is, horizontal direct effect. 

The issue of whether directives can have direct effect is far more complicated. This is because directives need to be implemented into national law by a state’s legislative body before taking effect and so should not need direct effect. However, sometimes Member States forget to implement directives or implement them incorrectly into national law, and the question then is whether or not the directive can be used to give rights and obligations.  In Franz Grad and Van Duyn the ECJ said that directives may, indeed, give rise to direct effect. Again the Van Gend criteria have to be satisfied - but there is an extra criterion to be satisfied before a directive can be enforced under direct effect, that is the date on which the directive was meant to have taken effect must have past.  This rule was set out by the ECJ in Case 148/78, Pubblico Ministero v Ratti. 

This was not the final issue that the ECJ had to settle. In Case 152/84, Marshall the ECJ were asked to consider whether a directive could be enforced against a private individual. In the Marshall case, Miss Marshall wished to enforce rights emanating from the Equal Treatment Directive (Council Directive (76/207/EEC)) against her employer, Southampton and South West Hampshire Area Health Authority. She attempted to do this in the national court or the employment tribunal. The employment tribunal again made a preliminary reference to the ECJ asking whether she could rely on the directive. The Court replied that she could do so, as her employers were a state body (vertical direct effect). They explained that if she had been employed by a private body, she would not have been able to enforce her rights.

This last requirement had the unfortunate effect of discriminating between individuals who wish to enforce rights against a state, as compared to those wishing to pursue the same rights against an individual. The Court attempted to mitigate such discriminatory effects by providing a wide interpretation of ‘state’ and in Case C-188/89, Foster v British Gas, and provided guidance by explaining that a directive may be relied upon against ‘state emanations’, that is, organisations or bodies that have been made responsible for providing a public service, and/or are subject to the authority or control of the State, and/or have special powers beyond those which result from the normal rules applicable to relations between individuals. (4) Paragraphs five and nine are pleasing in that they clearly show understanding of how the principle of direct effect has been developed and expanded through further judgements of the ECJ. The use of legal authority gives the essay weight and provides the reader with confidence in the discussion given by the writer.

Because directives can only be enforced against a Member State, this means that sometimes directives are unenforceable. In Case 14/83, Von Colson, the European Court of Justice tried to put this right by developing another principle. This principle is known as indirect effect and provides that a national court is under an obligation to interpret national law in line with the directive in an attempt to give the directive effect through the national law. 

In Cases C-6 and 9/90, Francovich and Bonifaci v Italy, the Italian government had failed to properly implement a directive. The directive required the Italian government to set up a fund to compensate workers in the event of the insolvency of their employers. The Italian government failed to do this and when Mr Francovich’s employers became insolvent, he was unable to recover the wages due to him. The ECJ held that the Italian government had not complied with its EC obligations, and was liable to pay damages to Mr Francovich because of this.  Consequently, it is now held that should a Member State fail to incorporate a directive into national law, an individual who suffers damage as a result may claim compensation from that state. In Case C-46 & 48/93, Brasserie du Pêcheur SA v Germany; R v Secretary of State for Transport ex p Factortame Ltd, the Court went further providing that damages may also be available in situations where a Member State had failed to fulfil obligations derived from other sources of Union law, although certain criteria must be fulfilled before damages will be available, namely (i) the rule must confer rights on individuals, (ii) the breach must be sufficiently serious, and (iii) there must be a direct causal link between the breach and the damage caused. (5) Paragraphs ten to twelve demonstrate that the student is aware that the ECJ has developed further principles that remedy some of the 'gaps' found in direct effect.

The EU Treaty gives relatively little guidance as to the relationship between national and Union law. Fortunately the Court of Justice was prepared both to explain that European Union law is supreme and has direct effect and also to develop the principles of indirect effect and state damages. (6) The final paragraph makes a reasonable attempt at bringing together the various threads found in the main body of the answer although it is not quite as focused towards the specific question set as the 'excellent' essay. As is appropriate in a conclusion, it doesn't attempt to introduce any new information. (7) This essay demonstrates the requirements of a competent piece of work. It shows that the writer has thought about the topic, has understood the issues and has a sound grasp of those most relevant to the question set. It is generally coherent and well written, with an appropriate structure, namely an introduction, discussion of relevant principles and conclusion. It contains an accurate account of the law and is supported by legislation and case-law. Overall, it is less sophisticated than the 'excellent' essay in that it has less supporting authority, uses less formal language and provides unnecessary description to the detriment of evaluative discussion.

Bibliography

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Critically consider the means though which the European Union has clarified and developed the status of its laws within the legal systems of its Member States.

   Podcast: the Ugly     

The EC is made up of over twenty states who have joined together to ensure that France and Germany never go to war again.  In order to do this the community works together to make coal and steel and has a free market so that goods can be made and sold all over Europe. The United Kingdom joined through the Single European Act and now has to follow all European laws. There are many sources of European law, namely legislation and case-law. Legislation is made by the Commissions but case-law is made by the European Court. (1) While this paragraph attempts to provide an introduction by considering the composition of the EU and why the Community was originally created, and also by explaining that there are various sources of EU law, discussion is at best vague. It also contains inaccuracies, such as the comment that the UK joined by means of the Single European Act. Out-of-date terminology is used, with references to the EC rather than European Union, for example.

Legislation is the treaties, regulations and directives. When these laws are made by the institutions they have to be followed by everyone. The most important treaty is the treat of Lisbon. This treaty has to be followed by all the member states including Britain. The treaty of Lisbon says that goods cannot be stopped from moving from country to country around Europe and neither can people. When Europe first started there were very few member states who were members. No ther are lots and there are more that want to join Europe.  (2) This paragraph demonstrates some recognition of the need to discuss EU law in an attempt at answering the question. However, the student's grasp of the impact of EU law is again vague and at times the discussion is misleading. There is no recognition of the differing impacts of the various forms of EU law, while some of the comments made are irrelevant to the question, for example, the comment relating to states wanting to join the EU. In addition, poor punctuation and spelling suggest that the student has not approached the task with sufficient seriousness or commitment and would not appear to have carried out a 'spell check' or proof read of his/her work.

There are other treaties which are law in the EC. These are the EC Treaty, the Maastricht treaty and the Amsterdam treaty. All these treaties tell the member states what to do and Europe is run by the institutions. The institutions are the Parliament, the Court, the Council and the Commission. Europe is not democratic and that is why everyone has to follow the laws made by the institutions. The European Parliament is the most democratic body as it is made up of MPs. The other institutions have to comply with the rules made by the parliament and the parliament can take them to court if they do not. Parliament also makes the budget for Europe and tells everyone how to spend their money. Then there are regulations. If anyone, even a member state or institution breaks a regulation they will be prosecuted by the European court of justice, which is in Brussels. Regulations are not European laws but the law in the member states.  Directives are different and because of this you may not have to follow them. But if you are part of the state you will have to follow them. This is called emanation of the state and was decided in Foster. (3) This paragraph touches on relevant issues but once again contains far too many misunderstandings and/or inaccuracies. It also demonstrates, by moving from issue to issue in a rather random manner, that little thought has been given to the provision of any logical structure to the essay.

If you break European law this will be decided by the European court. The House of Lords can send you to the European Court. If you do not like a decision of the House of lords or one of the other courts you can complain to the European court. This is called an appeal to the European court of justice. The house of Lords and the other courts have to follow what the European court says, otherwise they will be breaking their promise to Europe. 

People who live in Europe are called Citizens. They are allowed to live anywhere in Europe and if a country tries to stop them they can appeal to the European Court of Justice.  In Van Duyn a citizen was told that she could not come and live in the UK. She complained to the court and was told that she could. The Uk then had to let her come and work in Britain.  This case shows how law is made by the European court of justice and that everyone, even countries and people have got follow this law.  This is called free movement and is an important part of the European Union laws. (4) These paragraphs are particularly disappointing, as they clearly demonstrate a lack of understanding of the impact of EU law or the way in which it may be enforced by the courts. On the positive side, some attempt at providing supporting legal authority is made, although no effort has been made to provide a full citation.

The development of law of the European Community has been largely moulded by the European Court of Justice (ECJ). In the landmark case of Van Gend en Loos in 1963, the ECJ ruled that the European Community, through the will of Member States expressed in the Treaty of Rome, constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights albeit within limited fields.(5) This paragraph is most worrying. While it appears to address relevant issues, it actually constitutes an assessment offence, as it has been taken directly from the 'Wikipedia' website with no attempt made at referencing the source. (It should also be noted that Wikipedia should not be used for academic work.)

It can be seen from everyone having to follow the law on the common market and the law on citizens moving around Europe that the law of Europe is supreme to the law of the UK and its member states. (6) This paragraph contains some attempt at providing a conclusion and the relevant issue of supremacy of EU is at least mentioned. However, it is a case of too little, too late to rescue this particularly poor account.

Bibliography

No bibliography provided (7) No bibliography is provided. Inclusion of a bibliography is essential when completing an academic essay and should contain a list of resources referred to in the account. The absence of a bibliography suggests that the account has been written with no apparent use of relevant literature. (8) Overall this account fails to provide sufficient evidence of understanding of issues relevant to the question set. It contains unequivocal evidence that the student's knowledge is inadequate.

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