EU Legal System for Coordinating European Projects

The EU legal system and its law is an appropriate method of coordinating a European project of peaceful cooperation. Critically discuss.

Introduction

Supremacy through direct effect of European Union law over member states national law is essential for coordinating a European project of peaceful cooperation. The restriction on member states sovereignty is established in the Treaty of Rome 1957[1], known as the European Economic Community Treaty. By singing the 1957 Treaty member states voluntarily transfer sovereignty over to the EU, this is then cemented in European Case law. Enforcing European Community law is provided by the European Court of Justice outlined in Article 17(1)[2] of the Treaty on the European Union, this provides certainty around EC law especially regarding the four freedoms within the EU. Direct effect of EU law through regulations and directives is crucial to allowing the ECJ and promoting fair treatment among member states. Does applying and enforcing universal law through direct effect to 28 countries create a more cohesive EU? For the purposes of this paper peaceful cooperation is defined as the fluidity throughout the four freedoms without causing serious political tension, such as trade embargos.

Establishing European Supremacy

Supremacy arises in a variety of forms throughout European Treaties and Case law. The treaty of Rome 1957 (TOR 1957), under ‘Common Market’ state ‘…signatory countries agree to gradually align their economic policies;’[3]  This was the first instance where a state voluntarily signed a treaty reducing their sovereignty for the benefit of the community. Thus, the creation of directives held within European Community law; Article 249 states that regulations are ‘binding in its entirety and directly applicable to all member states…’[4] In essence, any regulations or directives set forth by the EU will have a direct binding effect on the member states. This in turn creates standing for the EU to co-ordinate fair cooperation and a levelled playing field among member states. Furthermore, Article 242 states that the European Court of Justice (ECJ) can consider the circumstances and ‘order that application of the contested act be suspended.’[5] This means the ECJ has the power to suspend national law which conflicts with EU law. Therefore, by signing the TOR 1957 member states effectively transfer some of their sovereign rights over to the community.

Foundation of the European Court of Justice supremacy over national law is established in the case of Van Gend en Loos (Case 26/62).[6] In this case chemicals were being transported from west Germany to the Netherlands to which the Netherland authorities charged a tariff on the import. The question in this case is whether Article 12 of the EEC (now Article 30 of the TFEU) to impose duties on imports has direct application. Article 12 was upheld to which the court stated ‘The European Economic Community Constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights…’[7] A true turning point for EU authority which lead to the advancement in the case of Costa v Enel (Case 6/64).[8] In this case Costa protested the nationalisation of electricity in Italy, stating that nationalisation  of the industry would violate the TOR 1957, now EEC Treaty, Article 37 ‘elimination of monopolies of commercial character…’[9] The outcome of this case had marginally solidified the power of the EU, by the EEC creating its own legal system and by doing so created

‘…real powers stemming from a limitation of sovereignty or a transfer of power from the state to the community, the member states have limited their sovereign rights and have thus created a body of law which minds both nationals and themselves.’[10]

This case clearly established the supremacy of EU law over citizens and the states themselves. Which in turn contributed to the solidification of EU law over national law. Since Enel the EU accumulated more power through case like Simmenthal (No.2) (Case 106/77).[11] This case established that domestic law conflicting directly with EU law, domestic law should be set aside automatically without an ECJ judgment.[12] The judgment goes on to state that national courts must apply Union law in its entirety and protect rights which confer on individuals.[13]  Furthermore, the strength of EU law reaches into domestic law which is not necessarily in practice anymore, for example the case of Commission v France.[14] In this case Article 3 of the French Customs Code states that a ‘certain portion of the crew of the ship…must be of French nationals.’ [15] Article 3 was no longer in effect, but the rule was still in breach of article 39 of the EEC of freedom of movement of workers.[16] Lastly, another landmark case establishing direct effect of regulations on member states is established in the case of Factortame (No.2)[1991] (Case C-213/89 )[17], in this case the UK implemented restrictions on registration of vessels in UK waters through the Merchant shipping Act 1988.[18] The restrictions prevented Spanish fishermen from registering as UK vessels breaching the TOR 1957 and ultimately Directives 92/51/EEC ‘…obstacles of freedom of movement for persons and services…’.[19] It was held that EU law trumps domestic law. Although, on the face of it, EU regulation of member states seems to cause tension, but it truly prevents unfairness which could lead to violent outbreaks. Having fair trade and playing by the same rules decreases the chances of member states abusing their power towards weaker countries and ultimately allowing the European citizens to benefit from less inflated pricing. Yet, British fisherman were not entirely satisfied with the outcome of the case, but it is a small price to pay to be a part of the single biggest market in the world. Having free access to the market allows for greater trade potential. Nevertheless, establishing supremacy over 28 member states provides solid foundation to implement regulations and directives to reduce conflict and increase fair trade between member states.

European Court of Justice Enforcing Union Law Increases Peaceful Cooperation

Supremacy of EU law creates peaceful trade among member states. The EU inherently comes with benefits of freedom of movement of goods, services, people, and capital,[20] in turn these benefits produce economic advantages.[21] These freedoms are guided, enforced and upheld by the ECJ and Court of Justice of the European Union (CJEU) from powers provided by the Article 19(1) of the Lisbon Treaty 2007 (TEU).[22] This is done by enforcing regulations imposed on member states regarding the common market, to ensure member states can cooperate fairly and on even terms. Europe in turn, can reasonably argue that imposing restrictions can reduce tension between member states. This reduces the chance of member states taking advantage of other weaker states for example imposing tariffs on imported goods. In the key case of Cassis de Dijon (Case 120/78) [23], it solidified the policy of freedom of goods. Cassis established that member states must respect the trade rule set in Article 207(1) TFEU.[24]This means that other states cannot seek to impose their own rules on goods that are represented, thus this case was ground-breaking towards the regulation of the single market. Similar cases soon after were brought to attention via the commission, cases like Denmark (Danish bottle) [1988] (Case 302/86) [25]. This case further established the rule in Cassis which sought to protect the public health, the fairness of commercial transactions, and the defence of consumers. Enforcing regulations and directives prevent financial discrimination among member states highlighted in the Ireland (excise Payment) [1980] (Case 249/81) [26] case, where Ireland allowed for beer, wine, and spirits to defer tax payments when the beverages were being manufactured but imposed instant tax payments on imported goods. Both resulted in equal amounts of tax collected although the collection scheme was discriminatory and breached Article 110 TFEU. [27]  Another case that established the fairness of trade among member states is the case of Nold [1974] (Case 4-73).[28] In this case a coal wholesales man was seeking the annulment of a commission decision which placed restrictive criteria on coal supply. Nold claimed the commission was acting discriminatory, the case was dismissed on the grounds that Nold was not suffering from the decision of the commission but rather the economic recession.[29] Another example of the ECJ focusing on the economic standing of a case is in the case of Grogan.[30] The case surrounds the problem of Grogan passing out leaflets regarding abortion clinics in Britain. The Irish high court granted an injunction to prevent the leaflets from being distributed. On appeal Grogan went straight to the ECJ to request advice on whether abortion service falls under Article 59 TOR 1957.[31] The interesting part of this case is that the Advocate General decided that the info ban was unjustified as it was in the public interest. The ECJ also came to the same decision, although they decided that the information is ‘…independent of economic activity carried on by clinics established in another member state.’[32] Therefore the case does not fall within the scope of the EC law. Though this case is not based on trade, clear indication of economic interest was present in the ECJ’s decision.

On the other hand, the evolution of the EU has progressed in social fairness among member states. Stated in the Grogan case above, the ECJ judgment felt that a social matter was void of ‘economic activity’ and not fall within the scope of the EU law. This is not the standard held in a more recent case of Defrenne v Sebena [1976] (Case 43/75).[33] This case concerned woman’s rights to equal pay. During this period human rights were still in development through EC law, where the TOR 1957 did not mention these fundamental rights. As well as, numerous attempts by the European Parliament to add human rights to the Maastricht treaty it was only reduced to a single article declaring that ‘The union shall respect fundamental rights…’[34] referring to the case of Sebena case the courts emphasised the need for horizontal and vertical direct effect of Treaty provisions. This case strengthened citizens rights by allowing them to enforce rights on private parties Article 119 TFEU. Allowing the ECJ to enforce fundamental rights such as ‘equal pay’ provides citizen security throughout member states by taking action through the EU when their own government does not act. Equal pay is a positive aspect because it’s morally right and it provides good feedback towards politicians which in turn helps politicians make better future decisions of where their society is heading to best accommodate their citizens and as well as collect date and push towards a better Europe.

Does imposing direct effect create a cohesive union?

Direct effect is an important principle in EU law as it allows the Union to implement Regulations and Directives enshrined under Article 288 TFEU which is binding on the country or countries imposed on. This power is given through the case Van Gend en Loos. This in turn gives the right to directly invoke European acts before national courts.[35]There are two effects, horizontal and vertical effect. Vertical effect allows individuals to invoke a European provision in relation to the country.[36] Horizontal effect is in relation to individuals, which means one individual can invoke a provision on another.[37] This is established in the case of Antonio Munoz, which allows regulations both horizontal and vertical effect. Evolving the power and influence of regulations. Sophie Oliver-Robinson argues the evolution of EU law outdates the case of Van Gend Loose and as such we should not ‘cling too rigidly to its doctrine, in trying to address the new challenges that the evolution of EU law has created.’[38] She further argues that EU law should yield to national law when confronted with resisting substance of national law. [39] Advancements of Direct effect can be proven by the case of Foster v British Gas 1990[40], it was held in this case that vertical effect was also available against organisations, organisations governed by state authority. On the other hand, Andre Nollkaemper argues that direct effect can ‘function as a powerful sword that can pierce the boundary of the national legal order and protect individual rights where national law fails.’[41] He goes on to argue that locking in international rights will enable European courts to protect them especially during the transition from an authoritarian to a rule of law based legal system.[42] Which means direct effect cements particular rights and safeguards against authoritarian rule[43] as depicted during 1940’s. This is especially important because on one hand Sophie argues we must move away from the VGL case and Nolkaemper argues that the direct effect is essential for securing individual rights. The reason direct effect was created is to give the EU power to change law, law which contradicts the peaceful nature of the EU. It is meant to benefit the individuals who reside under EU law, not hinder them. Allowing the ECJ to apply direct effect allows for the individuals and corporations unjustly treated to voice their complaint to a governing body that can make a difference and has their best interest in mind. Thus, conflicts arising through member state transactions or interstate transactions can settle dispute in a nonviolent manor reducing political tension between citizens and state and between member state to member state. As the ECJ acts as a referee to eliminate any problems that may arise.

Conclusion

In conclusion, establishing the foundation of European Supremacy over member states creates opportunity to alter questionable national law. The Treaty of Rome 1957 was the first leap in European history to allow countries to voluntarily transfer sovereignty over to the European Community for the benefit of advancing the community as a whole. This prevented national law that can cause political tension between member states and reduce the effectiveness of the four freedoms. Enshrined in the European Community Article 249 gives the commission the ability to bind member states to regulations and directives. This is fundamental to the ECJ and CJEU European process of organising and upholding the four freedoms between member states. Cases such as Van Gen den Loos, cements the EU’s power to act on incompatible national law and provides evidence of a country taking advantage of the trade agreement within the EU by applying extra tariffs on imports. The ECJ enforcing EU law supports the idea of safety and certainty between member states. Providing a governing body to oversee the four freedoms allows the ECJ to enforce directives which promote the peaceful cooperation between member states rather than allowing national law to cause conflict by charging tariffs, excessive taxing, monopolising electricity, all actions that cause tension between member states. All of this cannot be accomplished with limited power of the EU, the governing body of EU would not be able to implement Regulations nor directives to change bad policies in European countries which can hinder the peaceful cooperation between member states. Thus, supremacy using direct effect at this moment in time is the only acceptable solution to creating peaceful cooperation throughout the European Union.  

EU Cases

• Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629.
• Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 00649.
• Case 249/81 Commission of the European Communities v Ireland [1982] ECR- 04005
• Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ESE-00001.
• Case 302/86 Commission of the European Communities v Kingdom of Denmark [1988] ECR – 04607.
• Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR- 00491, Para 10.
• Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR-00455
• Case 6/64 Flaminio Costa v E.N.E.L [1964] ESE- 00585.
• Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26
• Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26.
• Case C-188/89 A. Foster and others v British Gas plc. [1990] ECR I-03313.
• Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR 1-02433.
• Case C-334/94 Commission of the European Communities v French Republic [1996] ECR 1-01307.

UK Statute

• Merchant shipping Act [1988].

EU Legislation

• Council Directive 92/51/EEC Professional Education and Training to Supplement Directive 89.48 EEC, (1)
• Consolidated version of the Treaty of the European Union [2012] OJ C 326, Article 17 (1).
• Consolidated version of the Treaty on the Functioning of the European Union [2012], Article 110
• Consolidated version of the Treaty establishing the European Community [2002] OJ C 325, Article 249 [3].
• The Lisbon Treaty [2007], Article 19(1).
• The Lisbon Treaty [2007], Article 207 (1).
• Treaty establishing the European Community (Nice Consolidated version)[2002] C-325, Article 39.
• Treaty of Rome [1975].
• Treaty of Rome [1975].
• Treaty of Rome 1957, Article 3 (c).
• Treaty of Rome 1957, Article 59.
• Treaty on European Union [1992],  Section F (2).

Books

• Schmidt, Susanne K, Only an Agenda Setter?: The European Commission’s Power over the Council of Ministers European Union Politics (2000), 1 EUP 37.
• Staab, Andreas, The European Union Explained, Indiana University Press (2013), Chapter 7.
• Switzer, Stephanie, European law Essentials, Edinburgh University Press (2009), Chapter 6.

Online Journal

• Sophie Robin-oliver, ‘The evolution of direct effect in the EU: Stocktaking, problems, projections’ (2014) International journal of Constitutional law, Vol 12, Issue 1 < https://academic.oup.com/icon/article/12/1/165/628620 > Accessed 10 December 2019, Page 2, para 4.
• ‘The Direct Effect of European Union law’ (EU-Lex, 14 January 2015) < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14547 > accessed  10 December 2019.

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[1] Treaty of Rome [1975].

[2] Consolidated version of the Treaty of the European Union [2012] OJ C 326, Article 17 (1).

[3] Treaty of Rome [1975].

[4] Consolidated version of the Treaty establishing the European Community [2002] OJ C 325, Article 249 [3].

[5] Ibid, Article 242.

[6] Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ESE-00001.

[7]  Ibid, Para [3].

[8]  Case 6/64 Flaminio Costa v E.N.E.L [1964] ESE- 00585.

[9] Ibid, Para 10.

[10] Ibid, Para 3, sub para 2

[11] Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629. 

[12] Ibid, Para 24.

[13] Ibid, Para 21

[14] Case C-334/94 Commission of the European Communities v French Republic [1996] ECR 1-01307.

[15]  Ibid, Para 27.

[16] Treaty establishing the European Community (Nice Consolidated version)[2002] C-325, Article 39.

[17] Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR 1-02433.

[18] Merchant shipping Act 1988.

[19] Council Directive 92/51/EEC Professional Education and Training to Supplement Directive 89.48 EEC, (1)

[20] Treaty of Rome 1957, Article 3 (c).

[21] Ibid, Article 2.

[22] The Lisbon Treaty [2007], Article 19(1).

[23] Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 00649.

[24] The Lisbon Treaty [2007], Article 207 (1).

[25] Case 302/86 Commission of the European Communities v Kingdom of Denmark [1988] ECR – 04607.

[26] Case 249/81 Commission of the European Communities v Ireland [1982] ECR- 04005

[27] Consolidated version of the Treaty on the Functioning of the European Union [2012], Article 110

[28] Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR- 00491

[29] Ibid, Para 10.

[30] Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26

[31] Treaty of Rome 1957, Article 59.

[32] Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26.

[33] Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR-00455

[34] Treaty on European Union [1992],  Section F (2).

[35] ‘The Direct Effect of European Union law’ (EU-Lex, 14 January 2015) < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14547 > accessed  10 December 2019.

[36] Ibid, Page 1

[37] Ibid, Page 1

[38]  Sophie Robin-oliver, ‘The evolution of direct effect in the EU: Stocktaking, problems, projections’ (2014) International journal of Constitutional law, Vol 12, Issue 1 < https://academic.oup.com/icon/article/12/1/165/628620 > Accessed 10 December 2019, Page 2, para 4.

[39] Ibid, Page 23, Para 1.

[40] Case C-188/89 A. Foster and others v British Gas plc. [1990] ECR I-03313.

[41] Andre Nollkaemper, ‘The Duality of Direct Effect of International law’ (2014) European Journal of Internation law, Vol 25, Issue 1 < https://academic.oup.com/ejil/article/25/1/105/497370 > accessed 10 December 2019, Page 4.

[42] Ibid, Page 9.

[43] Ibid, Page 9.