The ECJ and Direct Effect. From the Treaty of Rome over Van Gend en Loos to Francovich

Firstly, this essay will provide some general information regarding the development of the EU and particularly why the above-stated questions arose. In this context the concept of supremacy will briefly be overviewed, as it is closely related to the doctrine of direct effect. Subsequently, a definition of both direct effect and direct applicability will be administered. Furthermore, the relationship between direct effect and the various Community measures will be examined, focusing then on Directives for reasons which will be explained afterwards. Afterwards, the issues concerning vertical and horizontal direct effect in respect of Directives will be investigated. Finally, the essay will illustrate why and in which cases the doctrines of indirect effect and state liability become applicable. The paper will then conclude by answering the question, referring to the previous remarks, why the European Court of Justice (henceforth, ECJ) introduced the concept of direct effect.

The Treaty that established the European Economic Community (EEC) was the Treaty of Rome.^[1] It became effective on the 1st of January 1958. This moment can be regarded as a milestone in the development of the European Union. The treaty had not only the objective to prevent the outbreak of a further war between France and Germany^[2] but also to bring the Member States of western Europe together in a closer Union by extending the European integration to include general economic cooperation.^[3] Over the years, the Member States joined various treaties creating the juridical and political framework, in order to make the Community capable of cooperating on a broad range of matters.^[4] The EU organs – such as the Commission, Council, Parliament and the Court – were constituted. In different shape and occurrence, all of the above stated organs are entitled to announce measures (Regulations, Directives and Decisions) which would be targeted to the Member States.^[5] In the aftermath of this development two main questions arose. Namely, by what tool would such a measure be exercised towards the Member State(s)? The second and closely linked question was which law would prevail in the not unlikely situation of a dispute between the national law of a Member State and the European rule?

The European Court of Justice, now renamed the Court of Justice of the European Union, formed the concept of ‘supremacy’ when it observed, “The Community constitutes a new legal order in international law for whose benefits the states have limited their sovereign rights, albeit within limited fields”.^[6]

It is crucial to note that this is not a complete definition of the doctrine, as this case primarily dealt with direct effect. However, it is still relevant for the development of the doctrine of supremacy, as it was the very first time that the court stated that, by accepting entry in to the Community, the Member States were limiting their sovereign rights to legislate contrary to the requirements of EU law.

One year after the Van Gend en Loos case, the ECJ constituted a broader definition and provided an expanded comment in the Case of Costa v ENEL.^[7]

The case therefore established that when a Member State joins the EU, it effectively agrees to be bound both by its primary and secondary laws.^[8] This observation was followed by Case 11/70 Internationale Handelsgesellschaft v EVGF^[9] which went farther than Costa v ENEL by stating that even secondary EU Law (in that case a Regulation) was a higher form of law than the constitution of a Member State.

The Court held in an opinion in December 1991 that the doctrines of direct effect and supremacy create together “the essential characteristics of the Community legal order”.^[10] As the concept of supremacy, the doctrine of direct effect is a judicial development of the ECJ.^[11] The main issue addressed by the Court, the fact that Community law overrides national law, is senseless unless a person can enforce those laws in a national court. So the ECJ constructed the doctrine of direct effect, which holds that in certain circumstances Community law is directly enforceable in national courts.^[12] It is connected to, and very often confused with, direct applicability. The latter doctrine states that EU law is directly applicable if it is recognized as part of (for instance) UK law. Treaties and Regulations are “directly applicable”^[13] because they become part of the UK law as a result of the European Communities Act 1972.^[14] Not directly applicable are Directives, as they need an implementing piece of UK legislation to become law in the UK.^[15]

The rule of direct effect was first raised, as mentioned above, in the Van Gend en Loos case. The case concerned Art. 30 TFEU (at that time Art. 12, then subsequently Art. 25 pre-Lisbon) which forbad new custom rules being imposed, or existing custom rules being increased.^[16] Van Gend was trying to directly enforce the rule in Art. 30 against the Dutch government in the Dutch courts, claiming the rule enshrined a right not to be taxed in this way. Under Art. 267 TFEU^[17] the question was referred to the ECJ which stated:

“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 (…) upon individuals as well as upon the member states and upon the institutions of the community.”^[18]

The ECJ described in its ruling the test of when a Community law measure would be directly effective. Three main points, often referred to as the ‘ Van Gend en Loos-criteria ’, were established by the ECJ to figure out whether or not a provision of Union law is directly effective: The provision in question must be sufficiently clear and precise (I); it must be unconditional and without any exceptions (II); it does not require any further implementation by the Member State (III).^[19] Although Art. 30 was a prohibition, the ECJ held that Van Gend could enforce it against the Dutch government, as the prohibition was unconditional, imposed a duty without any discretion given to the Member States and generated direct effects between Member states and citizens.^[20] Therefore the national court enforced Art. 30 in favour of Van Gend.^[21]

[...]

^[1] The Treaty of Rome, March 1957, available: http://ec.europa.eu/archives/emu_history/documents/treaties/rometreaty2.pdf, (accessed 15 February 2015).

^[2] Treaty constituting the European Coal and Steel Community, April 1951, available: http://www.cvce.eu/content/publication/1997/10/13/11a21305-941e-49d7-a171-ed5be548cd58/publishable_en.pdf (accessed 15 February 2015).

^[3] Europa.eu, ‘ EU Treaties ’, available: http://europa.eu/eu-law/decision-making/treaties/index_en.htm , (accessed 15 February 2015).

^[4] J. McCormick, ‘ Understanding the European Union: A Concise Introduction ‘, 2nd ed., Basingstoke, Palgrave, 2002, pp. 113,114.

^[5] S. P. McGiffen, ‘ The European Union: A critical guide’, 1st ed., London, Pluto Press, 2001, pp. 26-28.

^[6] Case 26/62 Algmene Transporten Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

^[7] Case 6/64 Flaminio Costa v ENEL [1964] ECR 585: “By contrast with ordinary international treaties, the EC Treaty has created its own legal system, which, on the entry into force of the Treaty, 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 (…) 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, (…), and have created a body of law which binds both their nationals and themselves.”

^[8] E. Kirk, ‘ EU Law ‘, 3rd ed., Essex, Person Education Limited, 2013, p. 7.

^[9] Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr - und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125.

^[10] Opinion 1/91 Opinion of the Court regarding the European Economic Area Agreement [1991] ECR I-6079, available: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61991CV0001 (accessed: 17 February 2015).

^[11] N. Foster, ‘ Foster on EU Law ‘, 4th ed., Cardiff, Oxford University Press, 2013, p. 161.

^[12] Kirk, p. 11.

^[13] Treaty Establishing the European Economic Community (EEC), Art. 189, Post-Lisbon numbering: Art. 288 TFEU, available: http://ec.europa.eu/archives/emu_history/documents/treaties/rometreaty2.pdf (accessed: 21 February 2015).

^[14] European Communities Act 1972, available: http://www.legislation.gov.uk/ukpga/1972/68/contents (accessed 17 February 2015).

^[15] Kirk, p. 10.

^[16] Treaty of the Functioning of the European Union, Art. 30, “Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature.” Available: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:12012E/TXT (accessed: 21 February 2015).

^[17] Treaty of the Functioning of the European Union, Art. 267, “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (...), available: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E267:EN:HTML (accessed 21 February 2015).

^[18] Case 26/62 Algmene Transporten Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1.

^[19] Ibid.

^[20] S. Robin-Oliver, ‘The evolution of direct effect in the EU: Stocktaking, problems, projections‘ in International Journal of Constitutional Law, Oxford University Press, 2014, p. 176.

^[21] Kirk, p. 12.