The Principles of The E.U. Law: WWW - Ovidiuioandumitru

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THE PRINCIPLES OF THE E.U. LAW

As we have already mentioned, the European Union Law must be conceived
as an integral part of the national legal systems of Member States. Therefore, the
European Union Law is based on the following principles:
1. the principle of the direct applicability of European Union Law;
2. the principle of the direct effect of European Union Law;
3. the principle of the primacy or the supremacy of European Union Law.
1. The direct applicability of European Union law
It means that the European Union legal rules are directly and automatically
applicable within the national legal systems of Member States. Therefore, the legal
provisions of European Union Law take effect in the legal systems of Member
States as soon as they enter into force, without the need to be incorporated in the
national law by means of national normative acts. As a consequence, the national
courts of law are obliged to apply the European legal provisions within the internal
legal order of Member States.
Concerning the direct applicability and the method of incorporation of
European provisions into the national law, we should mention that there are two
main approaches in the legal systems of Member States, as follows:
a. the monist approach, which provides that any international Treaty takes
effect in the national legal system as soon as the treaty is ratified. This approach
characterizes the national legal system of several Member States, such as France,
the Netherlands or Romania.
b. the dualist approach, which provides that any international Treaty can not
take effect in the national legal system until its incorporation by national legal
provisions. This approach is to be found in Germany, Italy, Belgium or the United
Kingdom.
Despite these differences between Member States concerning the method of
incorporation of international legal provisions, the European Union Law provides
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the monist approach and therefore, the European legal provisions become a part of
the national law of all Member States as soon as they enter into force. As stated by
the Court of Justice, the European Union legal system can only be a monist system
in order to be compatible with the integration of Member States.
It means that the European Union legal rules are directly and automatically
applicable within the national legal systems of Member States. Therefore, the legal
provisions of European Union Law take effect in the legal systems of Member
States as soon as they enter into force, without the need to be incorporated in the
national law by means of national normative acts. As a consequence, the national
courts of law are obliged to apply the European legal provisions within the internal
legal order of Member States.
2. The direct effect of the European Union Law
It means that its legal rules are able to confer directly rights on individuals
in Member States which may be invoked and on which individuals may rely
before their national courts of law.
Concerning the direct effect of Community Law, it had been recognized for
the first time by the Court of Justice of the European Union in the Van Gend en
Loos Case, Case no. 26/1962. Thus, the Court of Justice had stated that the direct
effect of community provisions derives from the specificity of the new legal order
created by the European Communities and the achievement of the European
integration requests and implies this character. Furthermore, the Court of Justice
explained that the treaties refer not only to Member States, but also to their
citizens which may be affected by the exercise of powers given to the European
institutions.
Therefore, the European Union Law is intended to confer directly rights
upon individuals and not only when such rights are expressly granted by the
treaties. The individual rights may also derive from the obligations that the treaties
impose upon individuals, as well as upon the Member States and the institutions.
These rights may be invoked by individuals before the national courts of law
which are obliged to protect them.
The direct effect of community law may be either vertical direct effect or
horizontal direct effect.
Thus, when an obligation falls on a Member State itself, the legal provision
that contains it may create vertical direct effect, reflecting the relation between the
individuals and the state. Such a provision may only be enforced against the state
and not against individuals. We should mention that certain articles of the treaties,
as well as several categories of community acts (for example, the directives and
the decisions addressed to the Member States) produce only vertical direct effects.
Horizontal direct effect arises where an obligation falls on individuals,
reflecting the relations between individuals. Therefore, such legal provisions may
be invoked horizontally in the relations between individuals.
We should mention that several categories of acts, such as the regulations or
the decisions addressed to individuals, as well as some articles of the Treaties,
mainly those concerning the free competition, the free movement of persons, the
non-discrimination, the equality between men and women and so on produce
complete direct effects, meaning they may be invoked by individuals either
vertically or horizontally.
3. The supremacy of the European Union Law
It means that its legal rules prevail over all national provisions.
Thus, in order to give effect to the objectives of the European Union and to
ensure that the European Union Law is applied uniformly throughout the Member
States, it is essential that the European Union Law takes priority over national law.
The accomplishment of the European integration between different Member States
would not be possible if European provisions could be subordinated to the national
laws of the different States.
However, this character of the European Union law is not provided by the
treaties. Therefore, the supremacy was developed firstly by the Court of Justice of
the European Union in Costa v. ENEL Case, Case no. 6/1964. The Court of Justice
had stated that the European provisions would be devoid of any meaning and
efficiency if a Member State could unilaterally change their effects by means of
national legislative measures which could prevail over European Union Law.
Therefore, it is impossible for the Member States to give priority to a unilateral,
subsequent national measure over the European Union Law. The validity of the
European Union Law can never be called into question by reference to national
law.
In addition, as stated by the Court of Justice in the Simmenthal SpA case,
Case no. 106/1977, all national courts of law are obliged to apply directly and
immediately the legal provisions of European Union Law, even if there is a
conflicting national law in force. The national courts of law must not take into
consideration any national conflicting law which could impede the application of
the European Union Law.
1. Supremacy of Community Law
Supremacy of Community Law means that from the moment of passing it, it is directly
and instant applicable in Member States internal legal order and its application cannot be
eliminated by national rules.
This principle is not expressly provided by the treaties, but the relationship between
Community and national law was established in one of the earliest cases to come before the
European Court of Justice.
In Costa v. ENEL (6/64) an action was brought in Italy against the nationalized National
Electricity Board (ENEL) over a bill of 1,950 lire which then amounted to less than 1. Mr.
Costa claimed that he was not obliged to pay the bill as the nationalization legislation had
infringed Italian and E.C law. A reference was made by the Italian court under Article 234 (177)
E.C The Italian Government argued that such a reference was "absolutely inadmissible"
because the national court had to apply national law.
The ECJ rejected that argument in a passage which has been repeated on many
subsequent occasions:
"By contrast with ordinary international treaties, the EEC Treaty has created its own
legal system which became an integral part of the legal systems of the Member States and which
their courts are bound to apply.
By creating a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and real powers stemming from a limitation of sovereignty or
a transfer of powers from the States to the Community, the Member States have limited their
sovereign rights, although within limited fields, and thus created a body of law which binds both
their nationals and themselves.
It follows 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."
2. Community Law Prevails

Thus, on the basis of a case involving very little money the principle was established that
where there is conflict between Community law and national law it is Community law which is
to prevail. If it was otherwise "the obligations under the Treaty could be called into question" by
any subsequent national legislation the government of a Member State passed through its
legislature. Costa v. ENEL (6/64) developed this basic principle which had been set down in Van
Genden Loos(22/62) one year earlier.
Although the treaties do not expressly mention the principle of supremacy, a number of
provisions require it. For the ECJ the position is unequivocal. By creating the Community the
Member States consented to transfer to it certain of their powers and to restrict their sovereign
rights.
The ECJ case-law is directed at the national courts who apply the law in the cases which
come before them and apply effective remedies. Thus we have the statement in the Simmenthal
006/77) case that the provisions of Community law "are an integral part of, and take
precedence in, the legal order applicable in the territory of each of the Member States".
3. Direct Effect of Community Law

This important principle was created by the ECJ and follows on from the principle of
supremacy of Community law. It is a novel concept and can appear complex in the way it
applies to particular Community provisions.
If a legal provision is said to be directly effective, it means that it grants individual rights
which must be upheld by the national courts. There are two initial requirements which have to
be satisfied as the provision must be part of the legal order and its terms must be appropriate to
confer rights on individuals. There is thus a close link between supremacy of Community law
and direct effect as they both flow from the nature of the Community. In the important case of
Van Genden Loos(22/62), Van Gend imported chemicals from Germany.
In 1959 a Dutch law was passed which imposed a duty on some imported chemicals.
This was contrary to Article 25 (ex 12) E.C which required Member States to refrain from
introducing new duties or raising existing ones on imports between the States. Van Gend
objected to paying the duty and a reference was made under Article 234 (ex 177) E.C to the ECJ
to ascertain whether the duty on the chemicals was prohibited.
The conclusion reached by the ECJ was that: "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 subject of which comprise not only the Member States but
also their nationals. Independently of the legislation of the 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".
Direct Effect and Member States
The judgment in Van Gend was not the one which the Member States argued for. As far
as they were concerned if there was a breach of a Community obligation, the Treaty provided for
action to be taken by the Commission under Article 226 (ex 169) EC, or by another Member
State under Article 227 (ex 170) E.C.
These procedures have the advantage for the Member State that they take a long time to
come before the ECJ and, until the Maastricht Treaty, did not carry any real sanction. The
statements in Van Gend, clearly giving the individual who is affected by Community law the
equipment to take action in his national courts, ensure that the Member States observe their
obligations.
The Conditions for Direct Effect

The principle of direct effect is a very powerful one and the ECJ has taken the view that
it has to be limited by being interpreted restrictively. The judgment in Van Gend pointed out that
Article 25 (ex 12) E.C. was ideally adapted to have direct effect on the legal relations between
the Member States and their subjects. The court did this by establishing what are now
recognized as the conditions which must apply if direct effect is to be enforced.
These are:
1. The provision must be clear and unambiguous;
2. It must be unconditional, and
3. Its operation must not be dependent on further action being taken by Community or national
authorities.
The principle of direct effect has been applied to all the legally binding sources of
Community law. Whether or not a provision has direct effect is a question of interpretation of
Community law. In this way the ECJ seeks to ensure uniformity throughout the Community.
Direct Effect of Treaty Provisions
The ECJ established in the Van Gend en Laos case that Treaty Articles which impose on
Member States an obligation to abstain from something, such as levying duties under Article 25
(ex 12) E.U., have direct effect. In the Luetticke (57/65) case a preliminary reference was made
asking if Article 90 (ex 95) E.C., which deals with taxation, had direct effect. The court used the
familiar phrases when it stated, "The first paragraph of Article 90 (ex 95) E.C. contains a
prohibition against discrimination, constituting a clear and unconditional obligation". There
being no discretion left to Member States, it concluded that Article 90 (ex 95) E.C. produced
direct effects and creates individual rights of which national courts must take account. See also
Defrenne v. Sabena (No.2) (43/75).

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THE PRINCIPLES OF THE E.U. LAW

2. Community Law Prevails

3. Direct Effect of Community Law

The Conditions for Direct Effect

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