Europe reigns supreme *
Moshiuzzaman**
This article seeks to explain the various enforcement mechanisms of the European Union in implementing EU law, particularly, it’s unique nature of overriding national legislation of Member States. It considers the broad array of academic commentary and judicial deliberations made by multijurisdictional courts on the area, specifically the case law offered by the European Court of Justice. It explains and advocates the essence of the supremacy of Union law focusing on homogeneous and uniform application of the law across Member States.
The article progresses to account for secondary legislation of the European Union such as directives and its limited scope in exhibiting horizontal (direct) effect – the ability of legal requirements meant to apply only to public bodies to affect private rights. It argues that although the doctrine of direct effect was not originally contemplated to affect individual rights and it may have some unpopular and unbright consequences, sa raison d’être, today serves to facilitate benefits to citizens of the Member States of the Union in the face of non-compliance by their respective Member States. It finally concludes by stating that EU law is supreme over all national legislation.
The European Economic Community (EEC) was established in 1957 by the Treaty of Rome.[1] Following the aftermath of two world wars, Europe sought to rebuild itself and bring back economic stability. This was done by inviting the continent’s leaders under one roof in aspiration for unity and peace. This one roof, today, is what is now known as the European Union (EU). What separates the EU from other supranational organizations such as the UN and NATO is the EU’s ability to legislate over national governments. Additionally, its legal framework supports enforcement measures[2] against member states that deliberately or mistakenly breaches EU law.
This essay therefore aims to explain the various enforcement mechanism of the EU that make it superior to member states and establish the undeniable nature of its supremacy, with reference to case law and other measures. Building on this stance, the essay turns to directives and their limited scope of having horizontal effect. It will establish thereof, that although in some exceptional circumstance directives may have been given direct effect, other enforcement measures have covered this lacuna; thereby reinstalling the primacy of EU over national law.
Quite simply, the EU can make a member state adhere to its own legislation and where there is a conflict between national legislation and EU legislation, the latter prevails over the former. This was first established in Van Gend En Loos,[3] which paved the way for the ECJ to put forward the dominating nature of European legislation. The case itself revolved around the question on whether citizens of a member state who implicitly conferred rights were, by virtue of Treaty articles, able to exercise their rights before their respective national courts.
When this matter was referred to the ECJ by the Dutch court for a preliminary ruling under Art 267 of the Treaty of Functioning of the European Union (TFEU), the ECJ affirmed that the Treaties not only imposed obligations on member states but also gave rise to rights for citizens, which the national courts were bound to protect. It was stated that ‘The Community constitutes a new legal order in international law for whose benefits the states have limited their sovereign rights, albeit within limited fields.’[4] Thus, creating the principle of direct effect.
This proposal of a ‘new legal order’ marked the beginning of the ECJ’s judicial construction of the doctrine of supremacy. Interestingly, the ECJ never uttered the word ‘supremacy’ in their judgement. Quiet artfully, they avoided the trouble of classifying EU law as international law as it would have led to different member states, because of their distinct constitutions, to adopt the doctrine differently. Nevertheless, a clearer and comprehensive definition was provided by the ECJ in Costa v E.N.E.L.[5]
The ECJ made three arguments. Firstly, it stated that enforcement principles such as direct effect and direct applicability would be rendered meaningless if member states were allowed, through their own legislation, to override Community law.[6] It also stated that supremacy of EC law was enshrined in Article 249 of EC Treaty (now Article 288 TFEU), whereby EU legislation was held to be ‘binding’ and ‘directly applicable in all Member States’. This makes sense. Practically to say, much of the EU’s success and accolades today, arise from their ability to legislate over member states. If EU law did not have superiority over national legislation, uniformity of Union law within the Union would have been difficult to achieve, if not impossible.
Secondly, the ECJ argued that unlike other international treaties, the EC Treaty had created its own legal system.[7] By taking membership of the Community, member states had limited their own sovereignty themselves and had granted the Community approval to legislate in limited areas where their legislation became ‘binding’[8] and hence unquestionable. Therefore, the European Union today, enjoys supremacy in certain areas where member states have given up their sovereignty.
And finally, the ECJ argued that any variation in application of Community law from one-member state to another jeopardizes the accomplishment of Treaty objectives.[9] Indeed, the effective governance and maintenance of harmony within the Community requires application of homogenous legislation for all member states. Again, it should be noted that the fundamental reason behind the formation of the Community in the first place was to unite all member states in one platform without any segregation whatsoever.
In Internationale Handelsgesellschaft,[10] under a common agricultural policy set by the EU, exporters were required to obtain licenses which were only made available on a deposit of money. The claimant argued that the licensing system obstructed trade and was a violation of the right to conduct business – which was a fundamental right promised by the German Constitution.
The ECJ, on referral, stated that they respected the constitution of a sovereign state. However, the validity of Community legislation could not be measured, let alone challenged, against any rationale of national law of any member state, that includes any potential violation of human rights promised in a member states’ Constitution. The German courts initially, took an uncompromising stance in allowing Community law to displace Constitutional rights, unless assurance was made by the Community to protect these rights themselves.[11] Having said so, the German Constitutional Court took an accommodating approach whereby Community law could develop constructively within the German legal system.
The significance of this case is of utmost importance as it answers one of the most difficult question in determining the relationship between member states and the Community. Nevertheless, this approach was once again taken in another German case in 1986 – Re Wünsche Handelsgesellschaft.[12] In this case, the German Constitutional Court stated that as long as the EC ensured effective protection of fundamental rights using their sovereign powers so much so, as would have been protected unconditionally by the Constitution itself, the Constitutional Courts of Germany would no longer question the applicability of Community legislation.[13]
As we have already seen in Costa, the Italian courts were the first to recognize and accept the supremacy of Community law. But it was not the only Italian case. In Frontini[14]the Italian Constitutional Court confirmed yet again that Community law was a separate and superior form of law which superseded Italian law.[15]
Similarly, in Simmenthal[16] the Italian court accepted that they were bound to give effect to Community law in its ‘entirety’ and thus protect the rights that were conferred to its’ citizens by means of Community legislation. Accordingly, they set-aside[17] the conflicting legislation and restated that the time of enactment of national legislation was irrelevant when it came to enforcement of Community law.
It should be noted here that, the United Kingdom (UK) was not one of the signatory states which formed the EEC, despite being offered the role in 1957.[18] It was not until 1972, when the Conservative led government passed the European Communities Act 1972 (ECA 1972) that the UK formally became a member of the EEC. Like, other member states, the UK faced numerous obstacles when it came to applying EU law. These obstacles will now be discussed.
The inherent challenge that was faced by English courts while enforcing the supremacy of Community law took residence with the doctrine of parliamentary sovereignty. This doctrine states that Westminster Parliament is the highest authority in the land, which can make and unmake any law it pleases except for binding itself to future Parliaments.[19] This therefore means that any law which predates a more recent legislation and is contradictory to the former is automatically (impliedly) repealed or disapplied. For instance, theoretically at least, any legislation passed after 1973 that conflicts with ECA 1972, should render the 1972 Act to be impliedly repealed. However, that is not the case as the ECA 1972 is a constitutional statute which cannot be repealed so ordinarily.[20]
Indeed, the 1972 Act has allowed a wider scope in giving effect to Community law. Section 2(1) of the Act embeds the idea of direct effect and requires EC Treaties to be given immediate legal effect in the UK. Similarly, s.2(4) of the Act states that ‘any enactment passed or to be passed’ to give precedence over national legislation. The leading and by far the most extreme example of these sections can be seen in Factortame (No 2).[21]
In this case the English courts for the first time suspended the operation of an Act of Parliament[22], giving precedence to EU law over English law. Lord Bridge, notably had stated that ‘If the supremacy… of Community law over the national law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community.’[23] He further explained that limitations on sovereignty which Parliament faces today, were ‘voluntary’ accepted by the Parliament during the enactment of EEC 1972.[24]
Voluntarily surrendering sovereignty to the EU meant giving effect to achieving Treaty objectives as well as adhering to the principle of parliamentary sovereignty. The only way to subvert the supremacy of EU law is by repealing the ECA 1972, in other words withdrawing from the EU completely.[25] Indeed, following the Miller case,[26] ‘UK Constitutionalism is [really] on the March’ with the current Conservative government aiming to secure a strong deal for the future relationship of the UK and the EU.
This part of the essay will now consider whether directives should be allowed to have direct effect. Firstly, it should be borne in mind that directives are secondary legislation of the EU, which are addressed to member states to implement Union law[27] and direct effect is an enforcement measure by which supremacy of EU law is upheld.[28] Given, the Van Gend criteria requires EU provisions to be unconditional,[29] directives by their nature cannot have direct effect.[30] Despite the theoretical obstacle, the ECJ in Van Duyn,[31] by way of judicial construct, confirmed that directives were capable of having direct effect.[32]
In Marshall I[33] the courts drew a distinction between proceedings of the individual against the State – vertical direct effect; and proceedings of the individual against another individual – horizontal direct effect. The court stated in this case that directives can only have vertical effect as implementation of directives are addressed to the member states. Indeed, the principle reason for opposing horizontal effect is because direct effect is intended to force a member state to comply with its EU obligations to ensure individuals enjoys benefits from EU law. Therefore, on this basis, directives should not be detrimental in nature.[34] Hence, the principle of horizontal effect does not apply to their relations between individuals.[35]
However, directives can have horizontal effect in rare cases. Controversially, in Mangold[36] the ECJ for the first time confirmed that directives can have horizontal effect. Interestingly, in this case the ECJ allowed a directive, which had not expired its implementation period – a requirement for enforcing directives, to be enforced without giving any proper explanation. When this was raised in Kücükdeveci,[37] the ECJ tactfully dodged the question and reasoned that the directive in question had expired its implementation period and thus was enforceable, thereby giving horizontal effect to yet again another directive.
However, it should be remembered that allowing directives to have horizontal effect has more far-reaching implications than would appear. The ‘bright’ side of horizontal effect for directives ensures protection of citizen’s right against any discrimination as already observed in the unexplained cases of Mangold and Kücükdeveci. The not-so-bright side of this is it holds other individuals, who are also beneficiaries to EU rights are now responsible to discharge any potential EU non-discrimination obligations. For instance, the employers in Mangold and Kücükdeveci were compliant with their national law but nevertheless, were further required to discharge their EU obligation.
In Von Colson,[38] the ECJ held that national courts in applying national legislation, especially provisions which implement directives, have a duty to interpret national law in conformity with Treaty provisions so far as possible to give effect to results envisaged by the directive. Subsequent cases have only strengthened the Von Colson principle further. In Van Justitie,[39] the ECJ held that national courts were obliged to ‘take into account’ directives as an aid for the interpretation of national law. Furthermore, in Marleasing,[40]a case which primarily concerned a conflict between an unimplemented EC Directive and the Spanish Civil Code, the courts rejected the scope of direct effect as it involved private individuals but nonetheless, applying the principle of indirect effect, achieved the same outcome.
Von Colson and indeed, Marleasing with other subsequent cases have only reinforced the acceptance of horizontal direct effect via the back door i.e. using indirect effect. Now, we will turn to non-implementation, improper implementation and incorrect implementation of directives and inspect how the doctrine of state liability has held recalcitrant member states for their breach of EU obligations.
It should be remembered that the ECJ has extended their definition of ‘State’ to include its ‘emanation’(s).[41] Accordingly, State liability refers to an enforcement mechanism whereby member states, for their breach of EU obligations are held accountable by sanctions imposed by the European Commission.[42] The main justifications for a sanction-based measure was set out in Francovich,[43]where it was held that EU law, being ‘special’ conferred rights to individuals, which included the right to be compensated by the member states.[44]
Other justifications include the fact that EU law confers rights to individuals which must be given effect, otherwise effectiveness of EU law gets impaired and indeed, subverted. For this reason, rights under EU provisions must be redress-able.[45] And more importantly, Art 4(3) TEU requires member states to take all necessary measures to fulfil their obligations deriving from EU law. Essentially, individuals must have appropriate remedies in their national law.
The requirements for state liability are well founded and are as follows: a) the directive in question must grant rights to the individuals, b) the content of those rights must be identifiable and c) there must be a causal link between the breach of the State’s obligation and the loss sustained by the aggrieved individual.
The Francovich criteria was modified in Brasserie du Pêcheur[46] and Factortame III[47]to accommodate a right to repatriation. Interestingly, these cases did not involve a non-implementation of a directive, rather it was the national governments that choose to legislate contrary to the directives. In other words, the ECJ made it abundantly clear that any member state that seeks to frustrate the fulfillment of EC Treaties will be punished. Furthermore, subsequent cases such as Köbler[48]and Traghetti[49]have confirmed that the ambit for state liability is sufficiently broad and no limits can be placed by which member states can evade liability.[50]
As per the discussion above, clearly there is a strong fight between member states and the ECJ in the name of supremacy. However, despite the rivalry, the reign of EU supremacy is an undeniable truth. Consequently, we examined the scope for directives having direct effect. Nonetheless, all the case law from other enforcement measures such as indirect effect and state liability have covered the distance in the battle for supremacy.
* This paper was submitted as part of the author’s LL. B programme at BPP University (UK). Some alterations have been made to the paper to include further comprehensive details.
** Moshiuzzaman, is final year law student pursuing his LL. B from BPP University (UK) via a distance learning programme from London College of Legal Studies (South), Dhaka (Bangladesh).
[1] http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=LEGISSUM:xy0023. As accessed 13-03-2018 01:16
[2]http://theconversation.com/as-international-law-goes-the-eu-is-a-model-of-accountability-and-democracy-61042
[3] NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 3
[4] Ibid
[5] Case 6/64 Flaminio Costa v E.N.E.L [1964] ECR 585
[6] Alina Kaczorowaska, European Union Law, 4th edition, (Routledge Publication, 2016) p 274-5
[7] ibid
[8] Ibid n.6
[9] Ibid n.6
[10] Case 11.70 Internationale Handelsgesellschaft [1970] ECR 1125
[11] Weiler, Joseph H.H. (1991) ‘The transformation of Europe’ Yale Law Journal 100; 2403-2483, 2418
[12] Re Wünsche Handelsgesellschaft [1987] 3 CMLR 225
[13] J Frowein, “Solange II’ (1988) 25 CMLR 201
[14] Frontini [1974] 3 CMLR 381
[15] P P Craig and Gráinne De Búrca, The Evolution of EU law, 2nd edition (OUP, 2011) p 353
[16] Case 106/77 Amministrazione delle Stato v. Simmenthal SpA [1978] ECR 629
[17] This did not mean the national legislation became invalid but rather it became disapplied – confirmed in s.P.A Grantial v Amministrazione delle Finanze dello Stato case 170/84 [1984]
[18] The UK did not join the EEC in 1957 mainly because it worked closely with the Commonwealth.
[19] A.V. Dicey, Introduction to the Study of the Law of the Constitution (1885)
[20] As per Laws J in Thoburn v Sunderland City Council [2003] QB 151
[21] Factortame Ltd v. Secretary of State for Transport (No 2) [1991] 1 AC 603
[22] Merchant Shipping Act 1988 (Repealed)
[23] P P Craig and Gráinne De Búrca, EU Law Text, Cases and Materials, 6th edition (OUP, 2015) p 300
[24] Ibid
[25] At the time of writing, the UK is going through radical constitutional changes following the Brexit Referendum and the enactment of the ‘Great Repeal Bill’ – European Union (Withdrawal) Bill 2017-19
[26] R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5
[27] Art 288 of the TFEU
[28] NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 3
[29] Pubblico Ministero v Ratti (Case 148/78) [1979] ECR 1629
[30] Parpworth, N. (20160407). Constitutional & Administrative Law, 9th Edition. [Bookshelf Online]. Retrieved from https://bookshelf.vitalsource.com/#/books/9780192522283/
[31] Van Duyn v Home Office (Case 41/74) [1974] ECR 1337
[32] This judgment was heavily criticised as it presented the ECJ overstepping their legitimate bounds.
[33] Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching) [1986] ECR 723
[34] Faccini Dori v Recreb Srl (Case C-91/92) [1994] ECR I-3325
[35] Alina Kaczorowaska, European Union Law, 4th edition, (Routledge Publication, 2016) p 328
[36] Mangold v Helm (Case C-144/04) [2005] ECR I-9981
[37] Kücükdeveci v Swedex GmbH & Co KG (Case C-550/07) EU:C:2010:365
[38] Von Colson and Kamann v Land Nordrhein-Westfalen (Case 14/83) [1984] ECR 1891
[39] Bettray v Staatsecretaries Van Justitie (Case 344/87) [1989] ECR 1621
[40] Marleasing SA v La Comercial Internacionale de Alimentacion SA (Case C-106/89) [1990] ECR I-4135
[41] Foster & Others v British Gas PLC (Case C-188/89) [1990] ECR I-3313
[42] Art 258 and Art 260 of TFEU.
[43] Francovich and Bonafaci v Italy (Case C-6&9/90] [1991] ECR I-5357
[44] Alina Kaczorowaska, European Union Law, 4th edition, (Routledge Publication, 2016) p 362
[45] Joined Cases C-6/90 and C-9/90 Francovich v Italian State and Bonafici v Italian State [1991] ECR I-5357 para. 33
[46] Brasserie du Pêcheur (Case C-46/93) [1996] ECR I-1029
[47] R v Secretary of State for Transport Ex Parte Factortame (No 3) [1998] ECR I-1029
[48] Köbler v Republik Ӧsterreich (Case C-224/01) [2003] ECR I-10239
[49] Fallimento Traghetti Mediterraneo SpA v Presidenza del Consiglio dei Ministri (Case C-140/09) EU:C:2010:335
[50] Neil Parpworth, Constitutional and Administrative Law, 9th edition (OUP, 2016) p 226