24 - Community/National Law

Question 1

Doctrine of Direct Effect

What does the Doctrine of Direct Effect mean?

Answer 1

Direct effect means that a provisions/ pieces of legislation creating rights may be relied upon by individuals before their domestic courts.

Question 2

Doctrine of Direct Effect

What is the case example?

Answer 2

Case 26/62, Van Gend en Loos

Question 3

Doctrine of Direct Effect

General

Answer 3

Community law provides not only Member States with rights and obligations, but individuals also

Such rights and obligations can be enforced by individuals before their national courts. Davies (2007:65)

Question 4

Doctrine of Direct Effect

What are the basics of the case?

Answer 4

Van Gend en Loos, a postal and transportation company, importedurea-formaldehydefromWest Germanyto the Netherlands.

The Dutch customs authorities charged them a tariff on the import.

Van Gend en Loos objected, submitting that the tariff was contrary to EC law.

Article 12 of theTreaty of Rome(now replaced by Article 30 TFEU) stated: “Member States shall refrain from introducing between themselves any new customs duties on imports and exports or any charges having equivalent effect, and from increasing those which they already apply in their trade with each other.”

Van Gend en Loos paid the tariff but then sought to retrieve the money in the national court (Tariefcommissie). The Tariefcommissie made a request for a preliminary rulingto theEuropean Court of Justice, asking whether the then Article 12 of the Treaty of Rome conferred rights on the nationals of a member state that could be enforced in national courts.

Question 5

Doctrine of Direct Effect

What did the European Court of Justice say?

Answer 5

The European Court of Justice, delivering its judgment on the 5 February 1963, firmly held that Article 12 was capable of creating personal rights for Van Gend en Loos. In a seminal judgment it gave a wide and purposive interpretation to the Treaty of Rome.

Question 6

Doctrine of Direct Effect

What does the case illustrate?

Answer 6

The case illustrates the creative jurisprudence of the European Court of Justice. The concept of direct effect is not mentioned in the treaty. The court held that such a doctrine was necessary in order to ensure the compliance of member states with their obligations under the Treaty of Rome.

The case illustrates a procedure of enforcement of EC law at the national level—direct effect does not require the Commission to bring an action against the state. This is significant, because it provides a more effective, distributed enforcement mechanism.

Question 7

Doctrine of Direct Effect

The Community constitutes a new legal order…

Answer 7

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.

Question 8

Doctrine of Direct Effect

Independently of the legislation of member states…

Answer 8

Independently of the legislation of member states, community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty, but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community.

Question 9

Doctrine of Direct Effect

The court gave guidance as to when a treaty article would be directly effective…

Answer 9

The court gave guidance as to when a treaty article would be directly effective. It stated that it is necessary to consider the spirit, general scheme, and wording of a provision alleged to be directly effective. The court held that since the object of the Treaty of Rome was to establish a common market, for the benefit of individuals, the treaty is more than a typical international agreement. Not only does it create mutual obligations between states, but it is capable of giving individuals rights in the national courts.

Question 10

Doctrine of Direct Effect

The court decided that the fact that the failure of member states to comply with EU law…

Answer 10

The court decided that the fact that the failure of member states to comply with EU law could be supervised by enforcement actions brought either by the Commission or other member state, did not mean that individuals should not also be able to act as enforcers in national courts. Two reasons were given. The first was that a failure to recognise a concept of direct effect would not give sufficient legal protection to individuals. The second was that individual enforcement was an effective supervisory mechanism. The availability of supervision and legal application of article rights by individuals, the Commission and member states is described by Stephen Weatherill as being one of “dual vigilance”.

Question 11

Doctrine of Direct Effect

On the question of the tariff on urea-formaldehyde…

Answer 11

On the question of the tariff on urea-formaldehyde, the Court ruled that the Netherlands could not impose a higher tariff than that in force on 1 January 1958 (when the Treaty came into force). The Court noted that increase in the tariff could arise either through an increase in the rate or through the reclassification of a product into a higher-rated category, and that both were illegal under Article 12. The question of the proper tariff for urea-formaldehyde (i.e., that which was correctly applied on 1 January 1958) was remitted to the national court.

Question 12

Doctrine of Direct Effect

This case is the authority…

Answer 12

The case is authority for the proposition that articles of the EC treaty are directly effective (as distinct from directly applicable) in their application against the state.

Question 13

Doctrine of Supremacy

What is the Doctrine of Supremacy?

Answer 13

Doctrine of Supremacy is a principle by which the laws of member states that conflict with laws of the European Union must be ignored by national courts so that the European Union law can take effect.

Question 14

Doctrine of Supremacy

What is the case example?

Answer 14

Case 6/64, Costa v ENEL

Flaminio Costa v ENEL [1964] ECR 585 (6/64) was a landmark decision of the European Court of Justice which established the supremacy of European Union law over the laws of its member states’.

Question 15

Doctrine of Supremacy

General

Answer 15

Where Community and national laws conflict, former must take precedence even where the latter is subsequently enacted.

All national courts must take immediate action to give effect to Community law.

Question 16

Doctrine of Supremacy

What are the basics of the case?

Answer 16

Mr. Costa was an Italian citizen who had owned shares in an electricity company and opposed the nationalisation of the electricity sector in Italy.

He refused to pay his electricity bill, which amounted to 1,925 lire, in protest and was sued for non payment by the newly created state electricity company, ENEL.

In his defence he argued that the nationalisation of the electricity industry violated the Treaty of Rome and the Italian Constitution.

The Italian judge, the Giudice Conciliatore of Milan referred the case first to the Italian Constitutional Court and then to the European Court of Justice.

Question 17

Doctrine of Supremacy

What did the Italian Constitution Court rule?

Answer 17

The Italian Constitution Court gave judgement in March 1964, ruling that while the Italian Constitution allowed for the limitation of sovereignty for international organisation like the EEC, it did not upset that normal rule of statutory interpretation that where two statutes conflict the subsequent one prevails . As a result the Treaty of Rome which was incorporated into Italian law in 1958 could not prevail over the electricity nationalisation law which was enacted in 1962.

Question 18

Doctrine of Supremacy

In light of the decision of the constitutional court…

Answer 18

In light of the decision of the constitutional court, the Italian government submitted to the ECJ that the Italian court’s request for a preliminary ruling from the ECJ was inadmissible on the grounds that as the Italian court was not empowered to set aside the national law in question, a preliminary ruling would not serve any valid purpose.

Question 19

Doctrine of Supremacy

The Court ruled partly in favour of the government…

Answer 19

The Court ruled partly in favour of the government because the relevantTreaty of Romerule on anundistorted marketwas one on which the Commission alone could challenge the Italian government. As an individual, Costa had no standing to challenge the decision because that Treaty provision had nodirect effect.

However, on the logically prior issue of Costa’s ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State, the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Costa could not challenge national law on the basis of its alleged incompatibility with EC law

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.

Question 20

Doctrine of Supremacy

This case is additional confirmation…

Answer 20

This case is additional confirmation that under Article 267 of the Treaty on the Functioning of the EU, a court has an obligation to refer cases that have reached the highest point of appeal in their respective country, if there is a question of the application of EU Law. Costa had reached its highest point of appeal.

Question 21

When do the doctrines arise?

Answer 21

Doctrines of Direct Effect and Supremacy arise where Community and national laws conflict.