Problem 6
Learning objectives
- What is direct effect and the doctrine of supremacy of EU law
- How could directives have a direct effect in the national legal order
- Apply to the case
L1: What is direct effect
Classic international law holds that each state can choose the relationship between
its ‘domestic’ law and ‘international’ law. Two constitutional theories hereby exist.
- Monism: make international law part of their domestic legal order, international
law will here directly apply as if it were domestic law.
- Dualism: consider international law separate from domestic law
International law is viewed as the law between states, national law is
the law within a state.
While international treaties are thus binding ‘on’ states, they cant be
binding ‘in’ states.
International law needs to be ‘incorporated’ into domestic law and will
here only have indirect effects through the medium of national law
The European court indeed confirmed that some Treaty provisions would be self-
executing in the national legal orders. Nonetheless, the European treaties are
framework treaties; that is; they primarily envisage the adoption of the secondary EU
law. This secondary law may take various forms in Art. 288 TFEU
(De Europese rechter heeft inderdaad bevestigd dat sommige verdragsbepalingen in de
nationale rechtsordes zelf uitvoeren. Niettemin zijn de Europese verdragen kaderverdragen;
dat is; ze overwegen primair de goedkeuring van de secundaire EU-wetgeving.)
Direct applicability and direct effect
Would the EU legal order permit a dualist approach towards European law on the
part of the member states?
- The European treaties contained a signal in favor of this permissive approach.
For there existed an ‘international’ enforcement machinery in the form of
infringement actions before the Court of Justice
- However the treaties also contained strong signals against the ‘ordinary’
international reading of European law
- Not only was the union entitled to adopt that were to be ‘directly applicable in
all member states, from the very beginning, the treaties also stablish a
constitutional mechanism that envisaged the direct application of European
law by the national courts
, But regardless of whether a monist view had or had not been intended by the
founding member states, the European Court discarded any dualist leanings in the
most important case of European law: Van Gend en Loos SEE CASE LAW
Case Law: Van Gen den Loos
Facts
Van Gend & Loos is a transport company that exported goods from Germany to the
Netherlands. When crossing the border it was confronted with import duties that had
been increased since the introduction of the EEC Treaty, which stipulated that import
duties should not be increased. The company asks a number of questions to the
Court of Justice of the EU, the most important of which is:
Question: Does the article have direct application within the territory of a member
state?
European Court of Justice: See page 165 Case Law
- The Court confirmed the independence of the European legal order from
classic international law.
- The European treaties where more than agreements creating mutual
obligations between states.
- All European law would be directly applicable in the national legal orders; and
it was to be enforced in national courts, despite the parallel existence of an
international enforcement machinery (handhavingsmechanisme)
Because European law is directly applicable, the EU could also itself determine the
effect and nature of European law within the national orders. The direct applicability
of European law thus allowed the EU centrally to develop two foundational doctrines
- The doctrine of direct effect and the doctrine of supremacy
Doctrine of direct effect
It is vital to understand that the court’s decision in favor of a monistic relationship
between the European and the national legal orders did not mean that all European
law would be directly effective, that is enforceable (uitvoerbaar) by national courts.
To be enforceable a norm must be ‘justiciable’, that is, it must be capable of being
applied by a public authority in a specific case. But not all legal norms have this
quality.
The concept of direct applicability is wider than the concept of direct effect
- Direct applicability refers to the internal effect of a European norm within
national legal orders
- Direct effect refers to the individual effect of a binding norm in specific cases
Direct effect requires direct applicability, but not the other way around
I DON’T GET DIRECT APPLICABILITY ?
The direct applicability of a norm only makes its direct effect possible
Learning objectives
- What is direct effect and the doctrine of supremacy of EU law
- How could directives have a direct effect in the national legal order
- Apply to the case
L1: What is direct effect
Classic international law holds that each state can choose the relationship between
its ‘domestic’ law and ‘international’ law. Two constitutional theories hereby exist.
- Monism: make international law part of their domestic legal order, international
law will here directly apply as if it were domestic law.
- Dualism: consider international law separate from domestic law
International law is viewed as the law between states, national law is
the law within a state.
While international treaties are thus binding ‘on’ states, they cant be
binding ‘in’ states.
International law needs to be ‘incorporated’ into domestic law and will
here only have indirect effects through the medium of national law
The European court indeed confirmed that some Treaty provisions would be self-
executing in the national legal orders. Nonetheless, the European treaties are
framework treaties; that is; they primarily envisage the adoption of the secondary EU
law. This secondary law may take various forms in Art. 288 TFEU
(De Europese rechter heeft inderdaad bevestigd dat sommige verdragsbepalingen in de
nationale rechtsordes zelf uitvoeren. Niettemin zijn de Europese verdragen kaderverdragen;
dat is; ze overwegen primair de goedkeuring van de secundaire EU-wetgeving.)
Direct applicability and direct effect
Would the EU legal order permit a dualist approach towards European law on the
part of the member states?
- The European treaties contained a signal in favor of this permissive approach.
For there existed an ‘international’ enforcement machinery in the form of
infringement actions before the Court of Justice
- However the treaties also contained strong signals against the ‘ordinary’
international reading of European law
- Not only was the union entitled to adopt that were to be ‘directly applicable in
all member states, from the very beginning, the treaties also stablish a
constitutional mechanism that envisaged the direct application of European
law by the national courts
, But regardless of whether a monist view had or had not been intended by the
founding member states, the European Court discarded any dualist leanings in the
most important case of European law: Van Gend en Loos SEE CASE LAW
Case Law: Van Gen den Loos
Facts
Van Gend & Loos is a transport company that exported goods from Germany to the
Netherlands. When crossing the border it was confronted with import duties that had
been increased since the introduction of the EEC Treaty, which stipulated that import
duties should not be increased. The company asks a number of questions to the
Court of Justice of the EU, the most important of which is:
Question: Does the article have direct application within the territory of a member
state?
European Court of Justice: See page 165 Case Law
- The Court confirmed the independence of the European legal order from
classic international law.
- The European treaties where more than agreements creating mutual
obligations between states.
- All European law would be directly applicable in the national legal orders; and
it was to be enforced in national courts, despite the parallel existence of an
international enforcement machinery (handhavingsmechanisme)
Because European law is directly applicable, the EU could also itself determine the
effect and nature of European law within the national orders. The direct applicability
of European law thus allowed the EU centrally to develop two foundational doctrines
- The doctrine of direct effect and the doctrine of supremacy
Doctrine of direct effect
It is vital to understand that the court’s decision in favor of a monistic relationship
between the European and the national legal orders did not mean that all European
law would be directly effective, that is enforceable (uitvoerbaar) by national courts.
To be enforceable a norm must be ‘justiciable’, that is, it must be capable of being
applied by a public authority in a specific case. But not all legal norms have this
quality.
The concept of direct applicability is wider than the concept of direct effect
- Direct applicability refers to the internal effect of a European norm within
national legal orders
- Direct effect refers to the individual effect of a binding norm in specific cases
Direct effect requires direct applicability, but not the other way around
I DON’T GET DIRECT APPLICABILITY ?
The direct applicability of a norm only makes its direct effect possible
