Week 1: Autonomy of EU Law
Van Gend & Loos
What is case about
● Direct effect of EU law = individuals may claim rights directly under EU law and enforce EU law
before national courts
Facts
● Van Gend en Loos imported chemicals from Western Germany to the Netherlands
● → were asked to pay import taxes (tax was higher than on earlier imports)
● Argument Van Gend en Loos
○ Dutch customs duties on a product imported from West Germany is in violation of Article 12
of EEC
■ → prohibited MS from introducing new customs duties on products originating from
other MS + raising existing customs duties
Question: Whether ART 12 has direct effect before national courts (whether nationals may claim individual
rights which the court must protect)
Decision/rule/judgement
● =: yes → article 12 of EEC Treaty had direct application in national law
○ → inaugurating the doctrine of direct effect in EU law and empowering individuals to enforce
rights derived from EU law before national courts
○ Community → new legal order of international law for → MS limited sovereign rights
■ EU law → imposes obligations on individuals but also confer them rights
■ → individuals can plead
■ EU law could be enforced by individuals through national courts system of MS
Conclusion
● EU law could be enforced by individuals through the national courts system of a Member State
● Van Gend en Loos→ direct effect
○ Direct effect =
■ individuals may claim rights directly under EU law and enforce EU law before
national courts
○ Introduction of separation of national law & EU law
○ CJEU
■ We are an autonomous legal order
■ → meaning that EU separates itself from national constitutional law = not
dependent on national constitutions
■ International law instead = Dependent on national constitutional law
, Costa ENEL
What is case about
● Case → one year after Van Gend en Loos
● Principle of Supremacy EU law → now fundamental principle of EU law
○ Meaning →
■ EU law has direct effect and must be applied by the national courts of member
states, even if it conflicts with national law
Issue
● Should EC law be considered as prevailing over national law?
● Whether the primacy of EU law is dependent on the constitutions of the MS or whether EU law itself
may provide the source of such primacy?
Facts
● 1962 → italian government passed Act to nationalise electricity industry → increase prices
● MR costa →
○ Italian citizen with shares in the Italian electricity supply company Edisonvolta
○ he said that the nationalisation was in conflict with article 37 of EEC Treaty
● Case referred to italian constitutional court
○ EEC treaty incorporated into italian law in 1958 → thus → could not prevail over electricity
nationalisation (1962)
○ Dismissed → national law took precedence over EU law
Decision/ Rule/Judgement ECJ
● EEC treaty →
○ created own legal system that is independent of the national legal orders of MS → binding
on MS → obliged to apply EU law (7)
● EU law prevails over national law → Article 189 (now 288 TFEU) (11)
○ regulation ‘shall be binding’ and ‘directly applicable in all member states
● Article 177 (now 267 TFEU)
○ Needs to be applied regardless of any domestic law
Conclusion
● EU law has direct effect and takes precedence over national law
● Costa Enel → supremacy EU law
○ Meaning that EU law has direct effect → prevailing over national law
○ No direct effect without supremacy of EU law = ensure uniformity
■ Invoke EU law directly = national rules cannot be conflicting with this = so
supremacy needed
○ Conflict = EU law prevails
, Opinion 2/13 EU Accession to the ECHR
What is the case about
● Concerns → compatibility of the proposed accession of the EU to the ECHR with EU law
○ Agreement must not affect autonomy of EU law
● Request for Opinion by Commission → based on Art. 218 (11) TFEU
Issue: ‘Is the draft agreement providing for the accession of the EU to ECHR” compatible with the
Treaties?’
Facts
● Accession of the EU to the ECHR → Legal basis in Article 6 TEU
● ECHR → only state entities are parties → ECHR is only binding on states
○ EU →
■ precluded by its very nature from being considered a state
■ EU has a new kind of legal order
● Article 6(2) TEU → accession must preserve features of EU law
○ → accession should not affect the specific characteristics of the EU and EU law
○ these characteristics include those relating to the constitutional structure of the EU
Decision/rule/judgement
● → Agreement is not compatible with Article 6(2) TEU or with Protocol No 8 EU:
1. agreement does not take into account the characteristics and the autonomy of EU law
● By accession, the ECHR → binding on institutions and MS
○ EU institutions → subject to controls of ECHR + judgements ECtHR
● 3 ways agreement failed to take account of specific characteristics EU law
1. MS → possibility of applying higher HR standards than EU Charter →
No coordination between Article 53 ECHR and Article 53 of the Charter
2. Mutual trust
- MS have to assume other MS to complying with EU law + FR
(191)
- But → accession would “require MS to check that another Member
State has observed fundamental rights (194)
- undermining principle mutual trust → liable to upset balance
EU and undermine autonomy of EU law [194]
3. Protocol 16 ECHR
- Allows ECHR states’ highest courts to seek opinions from ECtHR
→ threat autonomy of EU law → courts might prefer going to
strasbourg on compatibility of EU law with ECHR rights
, 2. Agreement liable to affect Article 344 TFEU
● draft agreement → possibility that EU or MS might submit an application
to the ECtHR concerning violations in conjunction with EU law
● Allows the ECtHR to rule on disputes involving MS or the EU regarding the
application of ECHR within the scope of EU law
● → violates Art. 344 TFEU = art. gives CJEU monopoly on inter-state dispute
settlement regarding EU law between Member States
3. co-respondent mechanism
● Agreement
○ Contracting Party can become a co-respondent by accepting invitation
ECtHR → EU may become a co-respondent
● Issue →
○ When there is a case against a MS which calls into question the
compatibility of EU law with the convention →
○ Ask permission to ECtHR to become co-respondent → means the court
calls into question EU law and assess whether EU law as involved
■ If ECtHR were to decide whether the conditions for
co-respondent status are met = involve an assessment EU law
→ interfere with division of powers EU/MS
○ This is not allowed → ECJ only court that can interpret EU law
● → risk of adversely affecting the division of powers between EU/MS (225)
4. “prior involvement” procedure in the draft agreement
- prior involvement →
- ECJ is consulted/involved before ECtHR makes a decision where EU law
is relevant = ensure EU's judicial system functions properly
- EU is fully informed → institution can assess whether ECJ has already
made a ruling on the legal question in a case before ECtHR
- No ruling = EU can initiate prior involvement procedure
- Issue
- ECtHR decides whether ECJ should be given the right to prior
involvement → involves interpretation of EU law → cannot happen
5. CFSP
● CJEU has limited jurisdiction in CFSP
● draft agreement → allows ECtHR to rule on the compatibility with the ECHR of
certain acts, actions or omissions performed within the CFSP (254)
● ECtHR, a non-EU body, would have exclusive judicial review CFSP acts
Conclusion
● draft agreement was incompatible with the Treaties
Van Gend & Loos
What is case about
● Direct effect of EU law = individuals may claim rights directly under EU law and enforce EU law
before national courts
Facts
● Van Gend en Loos imported chemicals from Western Germany to the Netherlands
● → were asked to pay import taxes (tax was higher than on earlier imports)
● Argument Van Gend en Loos
○ Dutch customs duties on a product imported from West Germany is in violation of Article 12
of EEC
■ → prohibited MS from introducing new customs duties on products originating from
other MS + raising existing customs duties
Question: Whether ART 12 has direct effect before national courts (whether nationals may claim individual
rights which the court must protect)
Decision/rule/judgement
● =: yes → article 12 of EEC Treaty had direct application in national law
○ → inaugurating the doctrine of direct effect in EU law and empowering individuals to enforce
rights derived from EU law before national courts
○ Community → new legal order of international law for → MS limited sovereign rights
■ EU law → imposes obligations on individuals but also confer them rights
■ → individuals can plead
■ EU law could be enforced by individuals through national courts system of MS
Conclusion
● EU law could be enforced by individuals through the national courts system of a Member State
● Van Gend en Loos→ direct effect
○ Direct effect =
■ individuals may claim rights directly under EU law and enforce EU law before
national courts
○ Introduction of separation of national law & EU law
○ CJEU
■ We are an autonomous legal order
■ → meaning that EU separates itself from national constitutional law = not
dependent on national constitutions
■ International law instead = Dependent on national constitutional law
, Costa ENEL
What is case about
● Case → one year after Van Gend en Loos
● Principle of Supremacy EU law → now fundamental principle of EU law
○ Meaning →
■ EU law has direct effect and must be applied by the national courts of member
states, even if it conflicts with national law
Issue
● Should EC law be considered as prevailing over national law?
● Whether the primacy of EU law is dependent on the constitutions of the MS or whether EU law itself
may provide the source of such primacy?
Facts
● 1962 → italian government passed Act to nationalise electricity industry → increase prices
● MR costa →
○ Italian citizen with shares in the Italian electricity supply company Edisonvolta
○ he said that the nationalisation was in conflict with article 37 of EEC Treaty
● Case referred to italian constitutional court
○ EEC treaty incorporated into italian law in 1958 → thus → could not prevail over electricity
nationalisation (1962)
○ Dismissed → national law took precedence over EU law
Decision/ Rule/Judgement ECJ
● EEC treaty →
○ created own legal system that is independent of the national legal orders of MS → binding
on MS → obliged to apply EU law (7)
● EU law prevails over national law → Article 189 (now 288 TFEU) (11)
○ regulation ‘shall be binding’ and ‘directly applicable in all member states
● Article 177 (now 267 TFEU)
○ Needs to be applied regardless of any domestic law
Conclusion
● EU law has direct effect and takes precedence over national law
● Costa Enel → supremacy EU law
○ Meaning that EU law has direct effect → prevailing over national law
○ No direct effect without supremacy of EU law = ensure uniformity
■ Invoke EU law directly = national rules cannot be conflicting with this = so
supremacy needed
○ Conflict = EU law prevails
, Opinion 2/13 EU Accession to the ECHR
What is the case about
● Concerns → compatibility of the proposed accession of the EU to the ECHR with EU law
○ Agreement must not affect autonomy of EU law
● Request for Opinion by Commission → based on Art. 218 (11) TFEU
Issue: ‘Is the draft agreement providing for the accession of the EU to ECHR” compatible with the
Treaties?’
Facts
● Accession of the EU to the ECHR → Legal basis in Article 6 TEU
● ECHR → only state entities are parties → ECHR is only binding on states
○ EU →
■ precluded by its very nature from being considered a state
■ EU has a new kind of legal order
● Article 6(2) TEU → accession must preserve features of EU law
○ → accession should not affect the specific characteristics of the EU and EU law
○ these characteristics include those relating to the constitutional structure of the EU
Decision/rule/judgement
● → Agreement is not compatible with Article 6(2) TEU or with Protocol No 8 EU:
1. agreement does not take into account the characteristics and the autonomy of EU law
● By accession, the ECHR → binding on institutions and MS
○ EU institutions → subject to controls of ECHR + judgements ECtHR
● 3 ways agreement failed to take account of specific characteristics EU law
1. MS → possibility of applying higher HR standards than EU Charter →
No coordination between Article 53 ECHR and Article 53 of the Charter
2. Mutual trust
- MS have to assume other MS to complying with EU law + FR
(191)
- But → accession would “require MS to check that another Member
State has observed fundamental rights (194)
- undermining principle mutual trust → liable to upset balance
EU and undermine autonomy of EU law [194]
3. Protocol 16 ECHR
- Allows ECHR states’ highest courts to seek opinions from ECtHR
→ threat autonomy of EU law → courts might prefer going to
strasbourg on compatibility of EU law with ECHR rights
, 2. Agreement liable to affect Article 344 TFEU
● draft agreement → possibility that EU or MS might submit an application
to the ECtHR concerning violations in conjunction with EU law
● Allows the ECtHR to rule on disputes involving MS or the EU regarding the
application of ECHR within the scope of EU law
● → violates Art. 344 TFEU = art. gives CJEU monopoly on inter-state dispute
settlement regarding EU law between Member States
3. co-respondent mechanism
● Agreement
○ Contracting Party can become a co-respondent by accepting invitation
ECtHR → EU may become a co-respondent
● Issue →
○ When there is a case against a MS which calls into question the
compatibility of EU law with the convention →
○ Ask permission to ECtHR to become co-respondent → means the court
calls into question EU law and assess whether EU law as involved
■ If ECtHR were to decide whether the conditions for
co-respondent status are met = involve an assessment EU law
→ interfere with division of powers EU/MS
○ This is not allowed → ECJ only court that can interpret EU law
● → risk of adversely affecting the division of powers between EU/MS (225)
4. “prior involvement” procedure in the draft agreement
- prior involvement →
- ECJ is consulted/involved before ECtHR makes a decision where EU law
is relevant = ensure EU's judicial system functions properly
- EU is fully informed → institution can assess whether ECJ has already
made a ruling on the legal question in a case before ECtHR
- No ruling = EU can initiate prior involvement procedure
- Issue
- ECtHR decides whether ECJ should be given the right to prior
involvement → involves interpretation of EU law → cannot happen
5. CFSP
● CJEU has limited jurisdiction in CFSP
● draft agreement → allows ECtHR to rule on the compatibility with the ECHR of
certain acts, actions or omissions performed within the CFSP (254)
● ECtHR, a non-EU body, would have exclusive judicial review CFSP acts
Conclusion
● draft agreement was incompatible with the Treaties
