Podcast: the Good
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
A bibliography, appropriately structured and referenced, should be provided.