Look at the summary of the relationship between the various
institutions on page 158 of the study guide.
institutions on page 158 of the study guide.
Lecture 15 Notes
European Law and National Law
Article 234 of the EC Treaty attempts to ensure that there is some level of harmony in the manner in which European Laws are interpreted. The article provides, among other things that where a question concerning the application of European Law arises before the domestic courts of an EU member nation, the domestic court may request that the ECJ give a ruling on the matter. It also provides that where issues related to treaty law arise for which there is no remedy under domestic law, the domestic court shall refer the matter to the ECJ. This articles attempts to create a system in which EU and domestic courts work in tandem. It is also a acknowledgement of the fact that becoming a member state of the EU results in a transfer of some authority to the ECJ. The ECJ adopts a common standard in interpreting decisions from both common law and civil law countries. The rules of interpretation vary in between these two legal systems. While common law judges are expected to restrict their interpretation of statutes
to the strict wording of the laws, judges in civil law countries can adopt a more purposive approach in interpreting statutes – taking into account what they consider to be the intention of the legislature in the interpretation and application of EU laws. This broad approach to the interpretation of statutes gives the ECJ significant powers. It has even been argued that the ECJ often creates laws as it performs its functions of interpreting and applying EU treaties. The interaction between community law and the 27 domestic legal systems of the EU member states is extremely complex. Article 234 attempts to ensure that there is some partnership between the ECJ and domestic courts. However, as we learned from the ENEL case, since the 1960’s, the ECJ has asserted the superiority of the EU law over domestic laws where there has been a conflict. For the ECJ, the creation of resulted in the formation of a new legal order – a supranational order which imposes certain duties on member states and
enforceable rights for citizens.
Sources of EU Law
The primary sources of EU law are the various EU Treaties, including the three original Treaties that established the European Economic Community and all the subsequent treaties of the EU such as the Treaty of the European Union (the Maastricht Treaty), The Treaty of Amsterdam, and the Treaty of Nice and the Lisbon Treaty.
Secondary Sources: Institutions of the EC are also permitted to make secondary legislation in accordance with the provisions of the treaty. The secondary legislation may be take one of a number of different forms, namely Regulations, directives, decisions, recommendations and opinions.
Regulations are of general application and to the members of the EC. They are binding in their entirety and are directly applicable in all member states. In sum, regulations become a part of national law without any need for further enactment.
Directives are binding on those member states to which they are addressed in respect of the objectives to which they require to be achieved. However, unlike regulations they are not directly
applicable. In order for a directive to become law, it must first be implemented by a member state. Some discretion is given to the member states to determine the effect of these directives in practice. In the UK, a domestic statute – the European Communities Act 1972 creates a general power to make secondary legislation to give effect to EC obligations. Thus an EC directive can be implemented domestically by way of secondary legislation.
Decisions are binding in their entirety to those to whom they are addressed. Unlike directives, they can be addressed to individuals as well as to member states. In either case, a decision has the force of law and must be complied with.
Recommendations and Opinions have no force of law and hence no legal effect. They are merely persuasive.
Direct Applicability
Of the Sources of Law discussed above, only regulations are directly applicable. In other words, only regulations take effect in domestic law without any need for further enactment. This concept should not be confused with the concept of direct effect.
Direct Effect
This doctrine was first established by the case of Van Gend Loos NV v Nederlandse Administratie der Belastigen. This case is seen as a great milestone in European law. It concerned the Dutch company Van Gend en Loos that imported a chemical product from Germany into the Netherlands. The company claimed that the Dutch Customs and Excise had
charged it with too high customs duties and that, since the EC Treaty bans the introduction of new custom duties and the increase of existing duties on the market, this was contrary to Community law. Van Gend en Loos therefore brought an action against the Dutch customs authorities before the Tarief commissie in Amsterdam, which is the highest court with regards to
taxes in the Netherlands. The Dutch Court referred the matter to the ECJ for a preliminary ruling since it was not certain if the relevant article of the EC Treaty had direct application within the territory of a Member State. The issue was: Could citizens in a Member State lay claim to individual rights by invoking Community law before national courts?
The objective of the EEC Treaty, which establishes a Common Market, the functioning of
which is of direct common concern to interested parties in the Community, implies that
this Treaty is more than an agreement which merely creates mutual obligations between
contracting states. This view is confirmed by the preamble to the Treaty which refers not
only to governments but to peoples. It also confirms more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens.
The Court stated that the Treaty not only imposes obligations on the individuals of the
Member States but also confer upon them rights, which is up to the national courts to protect.
Article 25 was said to produce direct effects. This meant that Community law could, under
certain conditions, create rights for individuals of the Member States that were to be protected by
national courts. If individuals would be deprived of the right to invoke Community law before
these courts and authorities then they would no be able to invoke their individual rights. The
justifications for attributing direct effect to articles in the Treaty were the necessity to ensure the
effectiveness and uniform application of Community law in the Member States and legal
integration in the Community.
Notably, the ECJ dismissed the arguments made by the Dutch and Belgian governments that it did not have the jurisdiction to examine the internal effects of the treaty. Also the court laid out conditions which must be satisfied before a article in a treaty can have direct effect.
Firstly, the article in question must be clear and unconditional; secondly, it must not require any further legislative intervention by the state. And thirdly – it must it indicate that it applies not just to member states, but also to individuals within the state.
The question of whether EU directives have direct effect was examined in the case of Van Duyn v Home Office (1975) – In this case, the plaintiff, a Dutch national, was denied entry into the UK to take up an appointment as a Secretary in the Church of Scientology. The Church was described as a “pseudo-Philosophical cult” that was socially harmful. Relying on Art 48 of the EC and an EU directive which spoke to the free movement of persons, she contended that her refusal to grant her leave to enter was unlawful. The ECJ held that it would, in certain circumstances be incompatible with the binding nature of a directive to exclude the possibility that it can have binding effect, and that whether or not a directive was binding was dependant on the nature, general scheme and wording of the directive.
Vertical and Horizontal Effect:
Vertical and Horizontal direct effect refers to the manner in which EU regulations are enforced by individuals. Vertical direct effect refers to the whether or not an EU regulation is directly enforceable by an individual against a member state or the EU itself. A clear example of this can be seen in the van de Loos case. Horizontal direct effect refers to whether or not EU regulations can be enforced against other citizens or private bodies. Article 10 of the EC Treaty states as follows:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty, or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”
The ECJ has interpreted article 10 of the Maastricht Treaty to mean that national courts are required to interpret all national laws in the light of EC Law. Therefore, even where national courts are interpreting matters concerning two private citizens, EC law is relevant. This is known as horizontal accountability. In the case of Defrenne v Sabena (1978), the principle was confirmed that EU regulations are subject to horizontal accountability. Whether or not EU directives are subject to horizontal accountability was discussed in the case of Marshall v Southampton and South West Hampshire Area Health Authority (1986). In this case, the ECJ held that directives could NOT have horizontal direct effect, as they imposed obligations on state organizations rather than individuals. However, directives would be directly applicable to an emanation of the state – i.e. an organ of the state. In Foster v British Gas 1991, the factors which the court looked at in determing whether or not an organization was an “emanation” of the state included the following.
It provides a public service
It is under control of the state, and
The state dictates its policies and controls its surplus revenue
Based on this ruling, various other bodies have also been held to be emanations of the state:
For example, in Griffin v South West Water Services (1995) Blackburne J concluded that a private water company was an emanation of the state. And in National Union of Teachers v Governing body of Saint Mary’s Church of England Junior School, it was held that the governing body of the school was an emanation of the state as education was a public service.
Indirect Effect
The principle of indirect effect - or the duty of purposive interpretation – is based on Article 10 of the EC Treaty. It requires that even where a directive does not fulfil the criteria for direct effect, a national court is still required to “interpret their national law in the light of the wording and purpose of the directive”. It amounts to an interpretive obligation placed on national courts. It requires that in the event that a directive does not fulfil the criteria for direct effect, a national court is nevertheless obliged to interpret their national law in the light of the wording and the purpose of the directive. The principle was established in the case Von Colson and Kamann v Land Nordrhein-Westfalen(1984). In this case, Von Colson and Kamann had applied for posts as social workers with a state body, the German prison service. Both were denied appointment because they were women. They claimed for award of contract or damages under Art. 6 of Directive 76/207 (on the equal treatment for men and women as regards access to employment, vocational training, promotion and working conditions). The German courts referred the matter to the ECJ, which held that the failure of German law to provide appropriate levels of compensation in this instance amounted to incomplete implementation of the Directive in question. However, the Directive (specifically, Art. 6) did not satisfy the Van Gend en Loos criterion for recognizing direct effect. Nevertheless, it is the duty of every member state to achieve results envisaged by applicable Directives, and the duty of every member state (under Art. 10 of the EC Treaty) to ensure satisfaction of that obligation binds all authorities within the state, including its courts. Domestic courts must interpret and apply legislation adopted to implement a Directive in light of its wording and purpose of so as to achieve the objective of the Directive.
The principle was further refined in the case of Marleasing SA v La Commercial Internacional Alimentacion SA (1990), where there was a conflict between Spanish law and an unimplemented EC directive. Here it was held that whether or not the provisions in question were adopted before or after the directive, the national court was called upon to interpret the the provision, as far as possible, in the light of EU statute. This means that national laws which were enacted many years previously, must now be interpreted in the the light of current EU directives.
In Adender v Ellinkos Organisonos Galaktoes (2006) the ECJ also ruled on the issue of when a national courts should be required to interpret rules of domestic law in conformity with the provisions of a directive that does not have direct effect where the directive has been transposed belatedly. In considering the matter the ECJ held that “ where a directive is transposed belatedly, the general obligation owed by national courts to interpret domestic law in conformity with the directive exists only once the period for its transposition has expired.
State Liability in Damages
Non-implementation of directives is a community wide problem. Member states have often failed to implement directives or they have implemented them in an incomplete or haphazard manner, or not at all. Recalcitrant member states may be brought to heel if they are made the subject of proceedings under Article 226 of the Maastricht Treaty. Even where the ECJ ruled against a member state, there was no direct benefit to the individual for state’s failure to comply with an EC obligation. This is a void that has been filled by the ECJ.
In Francovich and Bonifaci v Italy (1993), an EC Directive had made provision for the payment of compensation to workers in the event that their employers became insolvent. Italy failed to implement the directive and was the subject of an adverse ruling under Article 226. The court held that while the directive did not meet the test for direct effect, the full effectiveness of the community would be weakened if and the protection of rights granted would be impaired if individuals were unable to obtain redress when such rights had been infringed due to a breach of EC Law for which the state was responsible. Therefore damages for the infringement of rights could be inferred from the treaty itself. The ECJ also stated some basic principles to be followed in determining whether or not compensation should be paid:
- The purpose of the directive should be to grant rights to individuals
- The contents of those rights should be capable of being identified on the basis of the provisions of the directive, and
- There must be a causal link between the breach by the state and the loss and damage suffered by the individual.
-
In the case of Ex Parte Factortame, an addition was made to the second directive – i.e. that it must be a serious breach. See quote in Burnett for what is meant by serious. Read the quote to class from Burnett.
It should be noted however that even though the violations are going to be for breaches of community law, criteria for compensation will be paid under national law rules and principles. Also it was held in the case of Ex Parte Factortame held that the principle can be applied to not only to circumstances where there had been a failure to comply with EC laws, but also where a member state passes legislation contrary to EU law. In this case, it was held that the requirements of the UK’s Merchant Shipping Act relating to nationality and domicile, and residence of the shareholders of fishing vessels for the purpose of the Act were clearly in breach of EU law and that “If damages were not to be held recoverable from this case, it would be hard to envisage any case, short of one involving bad faith, where damages would be recoverable.”
It should also be pointed out that EU law allows damages to be recovered from both the state and from the emanations of the state.
EU Law and the English Courts
The principle of supremacy of Community law over national law in the Member States has never been enshrined in the Treaties. None of the Treaties explicitly expressed that Community law should take precedence over national law nor was the principle endorsed by subsequent Treaty revisions. The Treaties are therefore said to be silent on the issue of the relationship between conflicting national law and Community law. Nonetheless, it is an essential part of the legal order of the EC. The doctrine has evolved only through the jurisprudence of the ECJ. This has, on the whole, been an evolutionary rather than revolutionary process. It is evident that there will be clashes between Community law and national law. In the event of conflict there must be a set of rules that indicate what legal norm shall prevail over the other. The ECJ has created a system whereby the laws of the Community take precedence over conflicting laws in the Member States. Consequently, the national courts are obliged to ensure the practical effectiveness of supremacy by upholding Community law. Naturally, the reception of the doctrine of supremacy in the Member States has been varied.
The first case where the Court made a statement on the nature of European law is the famous case of Van Gend en Loos v. Netherlands (1963)[1] dealing with the principle of direct effect of EC Treaty provisions and the degree to which individuals can rely on such terms to challenge measures of national law.
In that case, the ECJ stated that:
“The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states…
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”.
It was in a second important case, two years later, however, that the ECJ expanded on its constitutional theory of the Community, declaring again that the states had created a sovereign Community by limiting their own sovereign rights.
In Internationale Handelsgesellschaft v. Einfuhr (1970)[2] the Court made clear that the legal status of a conflicting national measure was not relevant to the question whether Community law should take precedence: not even a fundamental rule of national constitutional law could, of itself, be invoked to challenge the supremacy of a directly applicable EC law:
“Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law…….
The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”.
Under Public International Law (PIL), there are 2 conceptions regarding the transfer or delegation of sovereign powers to international organisations:
| Monism | Dualism |
| PIL+ national law ® part of one single system with PIL taking precedence. ie Dutch + French constitutions provide that duly ratified international obligations preside over municipal law. Also, Belgian courts achieved the same result in absence of explicit constitutional provision by proclaiming that international obligations have effect superior to domestic law. ¯ directly speak of transfer powers. | PIL + national law ® separate systems, each supreme within its own spheres. ie PIL into national law by national Act of Parliament in the form of a statute BA v. Laker and European Communities Act, 1972. ¯ always seeking statutes to conform to EC law. |
In the United Kingdom, the acceptance of the supremacy of Community law has certainly not been unproblematic. Since the British Constitution is largely unwritten, it is difficult to speak of “amending” it. The central obstacle to acceptance by the U.K. of supremacy of EC law is the fundamental constitutional principle of the sovereignty of Parliament. According to this principle, Parliament has the power to do anything other than to bind itself for the future. According to Dicey,
“Parliament has, under the English Constitution, the right to make or unmake any law whatever and no person or body….has the right to override or set aside the legislation of Parliament”.
Furthermore, the doctrine of implied repeal means that no Parliament can bind its successor, and no Parliament can be bound by its predecessor. Any Act is thus vulnerable to change by a future Parliament.
With those problems in mind, it was nevertheless decided to give internal legal effect to Community law by means of an Act of Parliament (dualist state): the European Communities Act, 1972.
Section 2(1) establishes a legal basis within domestic law for directly applicable EC laws
“as in accordance with the Treaties and without further legal enactment to be given legal effect or use in the U.K… and… shall be recognised and available in law”.
The section aims to make the concept of direct effect a part of the U.K. legal system. It states that law which under the EC Treaties is to be given immediate legal effect, is to be directly enforceable in the UK.
Section 2(4) accords existing and future priority to EC laws.
“Any enactment passed or to be passed….shall be construed and shall have effect subject to the foregoing provisions of this section”
However, the dualist nature of the UK constitution is confirmed by the cases of Blackburn v Attorney-General and R v Home Secretary, Ex Parte McWhirter.
In the Blackburn Case, the plaintiff had sought declarations that on entry into the Common Market, by signing the Treaty of Rome there would be a breach of the law because the government would be surrendering, in part, the sovereignty of the Crown in Parliament for ever. It was accepted by the court that signature of the treaty would be irreversible and would limit the sovereignty of the United Kingdom. It was accepted EC regulations and ECJ decisions would automatically become binding on the United Kingdom.
Held: Treaty-making powers rest in the Crown, acting on the advice of its Ministers and their actions can not be challenged or questioned in the courts. No Parliament could bind its successor, so the Treaty of Rome (which once signed was irrevocable), could be reversed by a subsequent Parliament.
Lord Salmon said of Parliament's legislative powers that
"...it can enact, amend and repeal any legislation it pleases." And Lord Denning pointed out that under English Law, even if the Treaty is signed, it is elementary that the courts would take no notice of it until embodied in an Act of parliament.
In McWhirter, lord Denning further stated that the Treaty of Rome has no effect as far as the courts are concerned until implemented by Act of Parliament. Until that day, we take no notice of it.”
So how does EU law get applied in England – by the English Courts interpretation of the European Community Act of 1972.
In Mcarthys v Smith, a case in which the court considered the wording of Britains sex discrimination laws against those provided by the EU, Lord Denning held that “ in construing our statute, we are entitled to look at the treaty as an aid to construction; and even more not only an aid but as an overriding force. If on close investigation it should appear that our legislation is deficient or in inconsistent with EU law, by some oversight of our draftsmen, then it is our duty to give priority to EU law. Such is the result of section 2(1) and section 2 (4) of the European Commnities Act of 1972.
In other words, the courts have viewed the ECAct 1972 as something of a compromise which allows the UK to maintain its principle of parliamentary sovereignty while still recognizing UK law.
The most important case outlining the relationship between British Law and European Law is the case of R v Secretary of State for Transport, Ex Parte Factortame. In this case, a Spanish Company brought an action challenging the validity of an act of parliament which they purported contradicted EU laws. A divisional court granted an interim injunction against the government stopping it from implementing the law until a final judgment from the ECJ. The ECJ ultimately held that “the full effectiveness of community law would be impaired if a rule of national law could prevent a court seised of dispute governed by Community Law from granting interim relief in order to ensure the full effectiveness of the judicial decision to be given on the existence of rights claimed under community law.
When the case was returned to the House of Lords, they accepted the ruling of the ECJ and granted the relief.
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