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Summary Introduction to International and EU law reporting problem 6
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Introduction to International and EU law reporting problem 6
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Introduction to International and European Union law reportingproblem 6
Learning objectives:
- What is the direct effect of EU law? (rechtstreekse werking)
- How could directives have direct effect in the national legal order?
- What is the principle of supremacy of EU law?
Literature:
- Schutze, Chapter 5 & Chapter 6.
- Case law: Van Gend & Loos, Costa/ENEL, Simmenthal II, Ursula Becker, Marshall I,
Kolpinghuis, Marleasing, Faccini Dori.
What is the direct effect of EU law? (rechtstreekse werking)
Direct effect: individual can enforce EU law in domestic court.
Direct applicability: no need for changes in national law to apply EU law.
Direct effect is ALWAYS direct applicable, but not the other way around.
Classic international law hold that each state can choose the relationship between its
domestic law and international law. There are two constitutional theories:
- Monist States: States make international law part of their domestic legal order.
International law will here directly apply as if it were domestic law.
- Dualist States: These States consider international law separate from domestic law.
International law is viewed as the law between States; national law is the law within a
State. While international treaties are thus binding ‘on’ States, they cannot be binding
‘in’ States. International law here needs to be ‘transposed’ or ‘incorporated’ into
domestic law and will here only have indirect effects through the medium of national
law.
The EU insist on a monistic relationship between EU and national law. This means that the
EU determines the effect of its law in the national legal orders.
European secondary law may take various forms. These forms are set out in art. 288
TFEU. The provision defines the Union’s legal instruments:
- Regulations: general application, binding in its entirety and directly applicable in all
Member States
- Directive: binding, as to the result to be achieved, upon each Member State to which
it is addressed, but shall leave to the national authorities the choice of form and
methods
- Decision: binding in its entirety. A decision which specifies those whom it is
addressed shall be binding only by them
- Recommendations and opinions: have no binding force, but they can be a
predecessor for becoming legal law
, Direct applicability and direct effect
The question is whether the Union would permit a dualist approach towards European law on
the Member States. The Treaties contain both signals in favour and against this approach.
The Union was entitled to both adopt legal acts that were to be ‘directly applicable in all
Member States’ and to establish constitutional mechanism that envisaged the direct
application of European law by national courts.
The European Court solved the uncertainties of the applicability of European Law in the Van
Gend en Loos case (page 486 and 487). In this case, the Court stated that the European
legal order was a ‘new legal order’. The Court confirmed the independence of the European
legal order from classic international law. The European Treaties were more than
agreements creating mutual obligations between states.
So, all the European law would we applicable in national courts, despite the parallel
existence of an international enforcement machinery. Because individuals were subjects of
European law, their rights and obligations would derive directly from European law.
Therefore, European law would be directly applicable in the national legal order.
All European law is directly applicable law, therefore the European Union could itself
determine the effect and nature of European law within the national legal orders. The direct
applicability of European law thus allowed the Union centrally to develop two foundational
doctrines of the European legal order:
- The doctrine of direct effect
- The doctrine of supremacy/doctrine of primacy
What is the doctrine of direct effect?
It is important to understand that the Court’s decision in favour of a monistic relationship
between the European and the national legal orders did not mean that all European law
would be directly effective, that is enforceable by national courts. To be enforceable, a
norm must be ‘justiciable’ (it must be capable of being applied by a public authority in a
specific case). But not all legal norms have this quality. The concept of direct applicability is
wider than the concept of direct effect. Where direct applicability refers to internal effect of
a European norm within national legal orders, direct effects refers to the individual effect of
a binding norm in specific cases.
Direct effect requires direct applicability, but not the other way around. The direct
applicability of a norm only makes its direct effect possible.
For example: a EU norm requires Member States to establish a public fund to guarantee
unpaid wages. But, the Member States are left with a margin on how to achieve this. This
norm doesn’t have a direct effect. It binds the legislator, but the norm is not self-executing.
How could directives have direct effect in the national legal
order?
The direct effect of primary law
The European Treaties are framework treaties, because they establish objectives of the
European Union and confer upon the EU the power to achieve these objectives. Many of the
European policies (in part III of TFEU) set out the competences and procedures for future
Union legalisation. The treaties, as primary European law, thereby offer the constitutional
basis.
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