European Court of Justice

In 1957, when the Treaty of Rome was first shaped, three directives were to be met, (1) To achieve peace in Western Europe (2) To form a customs union, facilitating a strong trade block and (3) Build an alternative Super-power to rival the US and the USSR. From the early years of the European Community as seen in Costa v ENEL [1964] ECR 585, where the European Court of Justice (ECJ) said that “ The member states have limited their sovereign rights, and have thus created a body of law which binds both their nationals and themselves”, this was the first sample that the EC law is supreme to national law.

Therefore in order for the EC to fulfil its goals it was clear that the national courts would have been obliged to give maximum effect to EC law. By bearing this in mind, the question arises as to what extent individuals are able to rely on EC law before national courts in particular where member states have failed to implement a certain measure. Also where the implementation is in some way faulty and does not provide the maximum effect of the rights of an individual. In order to deal with this question and with regards to the principle of supremacy, the European Court of Justice (ECJ) has developed three inter-weaving doctrines: direct effect, indirect effect and state liability. By combining these together they ensure that individuals are given the best possible level of protection before national courts.

The principle of supremacy means that Community law takes precedence over confliction rules of national law. This was implied in Van Gend en Loos and in Costa v Enel. In Costa, the Court found that the treaty constituted a permanent limitation of the sovereign rights of the Member States. By taking into account the terms and the spirit of the treaty, the Court concluded that it was impermissible for a Member State to give precedence to its own laws over those of the Community, regardless of the constitutional status of the Treaty in domestic law.

In the case of van Gend en Loos the ECJ had set out the doctrine of direct effect, giving rights to individuals to invoke the Community law in their national courts, and thus providing the Member State the possibility of making Community law as effective as possible. However the ECJ’s rejection to allow the horizontal direct effect of directives resulted in diminishing their effectiveness. In sequence to give the individuals the best possible level of protection before their national courts, they developed the doctrine of indirect effect.

The Indirect effect is a tool by which an individual may rely on directives against another individual. The ECJ will allow national law to be interpreted in the light of directives whenever necessary. Thus imposes a duty on the national law to interpret legislation in light of the requirements of the directive. This principle was developed in the cases of Von Colson and Harz both cases concerned Article 6 of the Equal Treatment directive (76/ 207) but one concerning a public and the other a private employer respectively, thus the contrast of remedies was different. Rather than highlight the unfortunate results of the lack of horizontal direct effects of directives, which would have helped Von Colson but not Harz. The ECJ concentrated on articles 10 and 249 (ex 5 and 109) EC which require member states to construe with community obligations. The court held that this requirement applies to all authorities of member states including the courts, who must interpret and apply legislation adopted to implement a directive in the light of the wording and purpose of the directive in order to achieve the objective of the directive.

What is their relationship?

The Community legal order is said to be built on the ‘twin pillars’ of direct effect and supremacy. Both of these principles were a development of the ECJ. It is also said that the doctrine of the supremacy of Union law over national law is the reverse side of a coin and a logical sequel to the doctrine of direct effect. Thus after the ECJ’s rejection to allow the horizontal direct effect of directives, in order to put this right they developed the doctrine of indirect effect. Clearly the relationship between the supremacy and the indirect effect is crucial. The indirect effect was developed in order to frame the other two principles and complete the blanks of any conflicts between the EU law and the national law as the ECJ imposed an interpretive obligation on the national courts to comply with the EU law.

Why did the Court formulate them?

The way EU has constitutionalised to make the treaty work is by putting it together and creating a system in order to bring all the members together in a common market. The European Court of Justice has consistently distanced the EU legal system from ‘ordinary’ international law. Hence one of the main reason for creating these principles is to make the EC law effective and for integration to take place. It gives the ability to rely on national court before the ECJ and wants individual to rely on the national courts provision, if so this will indicate that the legal system functions. If one is enable to use the article then the common Market is going to fail to work. Therefore, the ECJ has created these doctrines in order to make the community system work. As this is arguably likely to cause problems within the EU regarding which law is applicable. Therefor the EU believes that on accessing the EU the relevant member state is transferring its sovereign rights to the Community. This effectively produces another independent legal system. The court has given effect to this view by proclaiming four principles:

–                     EU law penetrates into the national legal systems, and can and must be applied by the national courts, subject to authoritative rulings on the interpretation, effect and validity of EU law by the Court of Justice; in other words, the duty of ‘Community loyalty’ or ‘Fidelity’ provided for in Article 10 applies to courts as well as other organs of the Member States such as the government and other legislature;

–                     In this context individuals may reply upon rules of EU law in national courts, as giving rise to rights which national courts are bound to protect (the principle of ‘direct effect’);

–                     In order to guarantee the effectiveness of this structure, EU law takes precedence over conflicting national law, including national constitutional provisions (the principle of ‘supremacy’ or ‘primacy’).

–                     The organs and constituent bodies of the member states, including the legislative, executive and judiciary, are fully responsible for reversing the effects of violations of EU law, which affect individuals. This may, for example, involve the courts ordering the government to pay damages for loss caused by breach of EU law. [1] [2]]

Is the Court’s case law on indirect effect and supremacy convincing?

In the UK the case law under the ECA 1972 and on the recognition of the supremacy of the Union law is not always consistent. The overarching priority of the British courts in more recent times has been to avoid creating difficulties in the application of Union law but not necessarily to accept the absolute primacy of Union legal instruments nor an automatic obligation to refer questions to the court.

As seen in Factortame No2 the UK Courts accepted that interim relief to suspend an Act of Parliament was necessary where the Act of Parliament worked to limit Community law rights. As Lord Bridge put in, this is significant step merely demonstrated the limitation on sovereignty the United Kingdom had accepted when joining the Community. Also the German courts came to accept that Union law should not be tested against the basic rights of German law, the Italians as well. In France, Denmark and Poland though there were some difficulties testing Union law against their Constitution. Hence national courts may accept the principle of the supremacy of Union law but they do not always do so in exactly the way that the Courts may have envisaged in its first judgments in Costa or Simmenthal.

In Simmenthal [1978], where there was a conflict between an EC regulation and Italian laws, some of which were passed after the regulation. The ECJ held that national courts must set aside any national law which conflicted with EC law, whether prior or subsequent to EC law.

In Costa v Enel the Court found that the treaty constituted a permanent limitation of the sovereign rights of the Member States. By taking into account the terms and the spirit of the treaty, the Court concluded that it was impermissible for a Member State to give precedence to its own laws over those of the Community, regardless of the constitutional status of the Treaty in domestic law.

The case law on the principle of indirect effect was first introduced in von Colson and Kamann v Land Nordrhein-Westfalen[25] and Harz v Deutsche Tradax GmbH[26], which came before the Court on the same day. The plaintiffs in both cases sought to invoke the provisions of Directive 76/207 (the Equal Treatment Directive) in almost identical circumstances. The distinction was that in von Colson the Directive was being invoked against the German prison service (a public body) and in Harz the Directive was being invoked against a private employer.

The Directive in question had been implemented by the German authorities, but the implementing legislation did not appear to provide an adequate remedy as required by the Directive. The ECJ held that the national court was obliged to interpret the implementing legislation so as to give effect to the Directive. The case was referred back to the German Labour Court who re-interpreted the national law and awarded damages to the plaintiffs in both cases.

Furthermore in Marleasing SA v La Comercial Internacional de Alimentación SA[27] and held that the principle of indirect effect applied whether the national legislation being construed was enacted before or after the Directive. In that case the Spanish authorities made no attempt whatsoever to implement the Directive in question, so there was no question of assuming that the intention of the authorities had been to give effect to the Directive. This decision was based on the principle of the supremacy of EC law, again a principle which the ECJ managed to derive from the EC Treaty.

Based on this assessment: what is the argument of my essay?

However as seen the Courts even if they have some difficulties to follow the EU law in the end they finally get comply with it. From one point of view the supremacy of the EU law and its doctrines (indirect effect) is important because there would be no reason of the creation of the European Union and integration of the Member States if the legal order was not based on these principles. It could be argued that the Member States now share greater bonds between them as they individuals have the same rights and the liberties of a European Citizen.

However on the other point of view the primacy of the EU law over the national law as it wouldn’t reflect the peoples individual opinions on what is right and wrong in that country. the Supremacy of European Union law seems to be crippling all member states that opt to use it over their own national personal law. The main reason for this seems to be because national law has been around for as long as the country it is being used in, whereas EU law has only been around for a few decades and has not been tailored specifically to the countries it is and will be used in. And also it will never be suited to every member state as each member’s laws are established upon that particular countries culture, among other things. Whereas if there is only one Supreme law to be used then the chances are it wouldn’t be fair to use it in all countries.

“No longer is European law an incoming tide, flowing up the estuaries of England. It is now like a tidal wave, bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all” The Late Lord Denning, 1990.