Arletta Gorecka (PhD Candidate, University of Strathclyde)
Van Gend en Loos (1963), in its famous passage, claimed that EU constitutional law “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 EU member states but also their nationals.” [1]
The judgment itself underpinned the core doctrines of European constitutional law, which shaped and defined EU legal effectiveness. First, it is important to present the key definitions of the problem. The European Court of Justice (ECJ) established the doctrine of direct effect — the principle that enables individuals to invoke EU law provisions before national or EU courts. Together with the principle of supremacy,[2] an absolute and unconditional principle establishing EU law’s primacy before national law, the direct effect allowed for the expansion of EU law’s power. The transformation of EU law was profound. The direct effect’s functionalities amount to: the enforceable power of the EU legal order, the recognition of EU individuals (namely EU citizens and citizens of member states) as legal subjects of the EU, and the granting of rights and duties which “empower some and disempower others.”[3] Nevertheless, the doctrine of direct effect has been a subject of debate due to its ambiguity, scope, and applicability.
This essay analyzes the doctrine of direct effect through the lens of contemporary developments, offering its constitutional, democratic, and individual applications. It proposes that the direct effect functions as a proxy for governance and is an important parameter for EU law applicability within the sphere of national law. Although the doctrine might be deeply problematic, it is still an important component to protect individual rights and ensure EU law effectiveness amongst member states. The first section considers the general idea and evolution of the direct effect. The second section provides a discussion of the doctrine of direct effect’s challenges, including the democratic deficit, and ambiguities concerning the application of direct effect. The discussion will conclude with an analysis of the relevant case law and scholarly opinion in this field.
I. The Idea and Evolution of the Direct Effect
A. Van Gend en Loos (1963)
The case of Van Gend en Loos (1963) addressed the question of the general authority of EU law.[4] The case itself concerned the postal and transportation company Van Gend en Loos, which imported chemicals from Germany into the Netherlands and sought reimbursement before the Dutch Tariefcommissie after paying a tariff, arguing that the increased tariff amounted to a violation of the Treaty of Rome.[5] Consequently, the Dutch Tariefcommissie sought a preliminary ruling from the ECJ regarding direct application of the Treaty within the territory of a member state, in the respect that individuals of a member state could invoke EU law in domestic courts.
In answering this question, the ECJ embraced the constitutional approach to EU law, and took a decisive step to acknowledge the conception of EU law as a “new legal order,”[6] different from international public law. The ECJ insisted that the provisions of EU treaties have the capacity to create rights and obligations for individuals, which individuals can invoke in national courts so they might claim subjective rights.[7] Hence, Van Gend en Loos assumed a special dimension for individuals, acknowledging their special rights to rely directly on EU law in situations of their member state’s non-compliance; the doctrine of direct effect recognized EU individuals as legal subjects.[8]
The impact of the case resulted in the confluence of the doctrine of direct effect and the supremacy. The ECJ constructed a mutual obligation between the member states to ensure that the rights owed by States to individuals are protected and ensured the member states’ obligation to comply with EU law.[9] It became accepted that the EU instruments, including directives,[10] regulations,[11] and treaties,[12] would be directly effective. As a socio-legal phenomenon, the direct effect controls and justifies the private political, economic, and social interests of EU individuals, ensuring the rule of law at a transnational level.[13]
B. The Direct Effect’s Consequence — the Doctrine Governing Individuals’ Rights
The direct effect is considered to be a doctrine which governs the national courts’ activity, forcing them to apply provisions compatible with EU law.[14] Although this is an infringement on national sovereignty for many, it is hard to imagine that the EU legal order could have an impact without the doctrine of direct effect. Furthermore, in practice, alongside national courts, the direct effect also requires state organs and domestic administrators (which do not play any formal part of EU law implementation) to apply the EU legal provisions.[15] This phenomenon, referred to as administrative direct effect,[16] needs attention since national law is not annulled but disapplied through the supremacy of EU law.[17] Such a limitation of national sovereignty is considered acceptable because it is “displaced by a figure with commensurately valued qualities.”[18] In the consideration of this great alteration in the sovereignty of member states, many questions arose regarding whether the ECJ truly desired the EU to develop in this manner.
Generally, legal integration, uniform application and effectiveness are among the ECJ’s aims. In order to result in the uniform application of EU law, Van Gend en Loos established three criteria which must be fulfilled for the provision of a given EU law to be directly effective.[19] The provision is required to be sufficiently precise[20] and clearly stated; non-dependent or unconditional;[21] and self-executing. Subsequently, in Becker, the ECJ shifted toward preferring to examine the provision as being unconditional and sufficiently precise.[22] According to the case of Comitato, if a provision is unambiguous, then it is sufficiently precise.[23]
C. The Clarity Debate Continues
With a lack of precise definition of the direct effect, the clarity debate continues. Van Gerven and Ruffert, who attempted to define the direct effect, insisted on the necessity of the precondition of conferral of rights on individuals.[24] In practice, the doctrine of direct effect comes into question when individuals rely on an allegedly directly effective EU law provision. Ruffert stated that “rights are a fundamental topic in the ongoing development of Community law.”[25] The ECJ claims that courts, in certain circumstances, are constrained to apply directly effective EU law provisions as their own motions. Prechal argued that such a finding defined the scope of direct effect, requiring the member state to transpose the EU directives in a manner that individuals are aware of their rights and rely upon them.[26] As a result, the doctrine of direct effect, as per Van Gend en Loos, is a key element for the effectiveness of EU law and still remains important.
II. The Challenges of the Direct Effect
A. Proxy for governance
The direct effect is recognized as a “proxy for governance.”[27] Weiler explains that since EU law constitutes “the law of the land”, the EU is a governance system that does not require the member states’ intermediary to attain individuals as subjects and objects of the law.[28] The critics of direct effect root their arguments in issues of social and democratic legitimacy. This constitutes a potential challenge towards the doctrine of direct effect. However, these criticisms do not suggest that the ECJ has no legitimacy. Mancini recognizes an irony in EU law’s constitutional jurisprudence due to the EU’s aim of political integration.[29] The direct effect serves invariably in the economic interest of individuals at the expense of democratic legitimation.[30] Leaving the implementation and discretion to the member states supports dualism, a theory emphasizing the coexistence of two legal systems and requires the translation of international law or EU law into national law, a necessary element for preservation of the member states’ legal pluralism.[31] This aspect allows the member states to choose the most appropriate form of law in accordance with their national laws and thus reducing some issues with the EU’s democratic legitimacy.
B. Democratic Deficit and Direct Effect
Milev and Weiler argued, based on their examination of EU caselaw, that democratic deficit implicates the ECJ,[32] as through the development of EU law, the ECJ remains headed by non-elected experts, and is criticized for being unrepresentative. Fundamentally, democracy is a core element of each of the member states, as recognized in Article 2 T.E.U.[33] Inevitably, democracy serves as a recognition and representation of EU individuals by the EU in EU Parliaments. Yet, paradoxically, EU institutions lack proper accessibility and representation of the ordinary citizens. Proponents of democratic deficit stipulate that the problem relates to cooperation between the member state and the EU Parliament.[34] This initiates from Van Gend en Loos’s reasoning:
“[T]he Treaty … refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects member states and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee.”[35]
Hence, the focus on cooperation degrades democracy,[36] as the EU institutions are too distant from the EU citizens. The Treaty of Lisbon attempted to enable EU citizens to have better access to the EU institutions via the Citizens’ Initiative. Nevertheless, it appears to be insufficiently effective and only slightly improves the cooperation between the EU citizens and the EU Parliament. The EU Commission, which has the capacity to propose legislation, is an appointed, not democratically elected, institution. Thus, the direct effect allows for a body of law over which there is no democratic control, as EU law flows from the EU Commission and lacks democratic representation of the EU citizens.
C. The Direct Effect, Supremacy and National Courts — a Duty to Apply E.U. Legal Provisions
The member states are the only source of law and sovereignty and can be declined the role of the only source of law.[37] However, the member states’ are governed through a use of functional but imperfect democracy, where individuals are political subjects.[38] Paradoxically, the issue of the national court’s constitutional jurisprudence’s legitimacy might not rely on its hermeneutics, but on the unassailable interpretation.[39] The EU legal instruments are often proclaimed as merely political programs,[40] and the direct effect essentially relates to the immediate control on the national economic authority. The question that national courts face relates to the restrictions of the national law, as national courts are obliged to ensure the effectiveness of EU law.[41] Yet, this brings forward a question relating to limiting the effectiveness of EU law and granting the power for national constitution. This issue is embedded in federalism of the EU.[42] Nevertheless, the protection of individuals’ rights is a domain of the EU law effectiveness’ debate. In Van Schijndel,[43] the Court indicates that national courts have to apply the directly effective EU provisions, even if none of the parties relied on them. Therefore, the direct effect could no longer solely relate to protect individuals’ rights but the national counts’ obligations to scrutinize the municipal legal provisions to implement and transpose the effect of EU law.
D. Protection of E.U. Individuals at the Heart of Direct Effect
The ECJ still applies the principle of direct effect to protect rights of individuals conferred by the EU Treaties.[44] In Kraaijeveld, the ECJ held that a member state’s failure to comply with a directive would not exclude individuals’ right to sue a State, in the event of failure to realize its obligations.[45] Winter made a “distinction between direct applicability and direct effect” [46]: a separation of individuals rights’ existence from the direct effect results in confusions, as individuals’ rights have related to the direct effect. Yet, the direct effect cannot be divorced from the existence of individual rights.[47] The division between direct applicability and direct effect has been striking for many. Easson equated the EU regulations with the direct applicability by explaining that regulations are directly applicable without the necessity of being implemented into municipal laws.[48] Directives are being directly effective if they confer the rights of individuals. Therefore, the difference between the existence of individuals’ rights and the direct effect is related to review of the legality of EU acts. Prechal concluded that “only those persons whose interests are intended to be protected [. . .] may invoke the directive before the courts.”[49] Indeed, the protection of individuals plays an important role at the national level. Nevertheless, the direct effect is still important to ensure the EU law effectiveness, which is necessary to the achievement of the internal market. Hence, the protection of individuals’ rights, as conferred by the principle of direct effect, has become a central issue in the development of freedom, security and justice.
III. Conclusion
The direct effect is deeply rooted in EU law, together with the doctrine of supremacy. It is hard to imagine EU law without having a direct impact on the member states. The direct effect is recognized as proxy for governance. The issue with the direct effect is rooted in questions of democracy and social legitimacy, due to the political association of EU law. The doctrine serves as a protection of the peace and material prosperity. The EU legal provisions, even if sometimes not applicable to individuals, create a bilateral obligation for the member states to oblige with EU law which still serves as a protection for individuals. Hence, the direct effect is important for ensuring that there is an EU legal effectiveness between the member states.
[1] Case 26/62, Algemene Transport- en Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 3.
[2] Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 1141.
[3] Damian Chalmers & Luis Barroso, What Van Gend en Loos stands for, 105 Int’l J. Const. L. 106, 106 (2014).
[4] van Gend en Loos, 1963 E.C.R. 1.
[5] See Treaty of Rome: Treaty Establishing the European Economic Community art. 12, Mar. 25, 1957, 298 U.N.T.S. 3, 4 Eur. Y.B. 412 (Article 12 of the Treaty of Rome prohibited new tariffs/customs on imports and export being proclaimed in addition to those already in place within the E.U.)
[6] Derrick Wyatt, New Legal Order, or Old?, 7 Eur. L. Rev. 147, 166 (1982).
[7] Van Gend en Loos, 1963 E.C.R. at 2, ¶ 3.
[8] Chalmers & Barroso, supra note 3, at 107.
[9] Consolidated Version of the Treaty on European Union art. 3, 2010 O.J. (C83/01).
[10] Case C-41/74, Van Duyn v. Home Office, 1974 E.C.R. 1337.
[11] Case C-230/78, Eridania-Zuccherifici nazionali v. Ministre de l’Agriculture et des Forets, 1979 E.C.R. 2749.
[12] Van Gend en Loos, 1963 E.C.R. at 2, ¶ 3.
[13] Joseph Weiler, Van Gend en Loos: The Individual as Subject and Object and the Dilemma of European Legitimacy, 12 Int’l J. Const. L. 94, 95 (2014).
[14] Van Gend en Loos, 1963 E.C.R. at 2, ¶ 3.
[15] Pierre Pescatore, The Doctrine of Direct Effect: An Infant Disease of Community Law, 3 Eur. L. Rev. 155, 156 (1983).
[16] Bruno de Witte, Direct Effect, Primacy, and the Nature of the Legal Order, in The Evolution of EU Law 334 (Grainne de Burca & Paul P. Craig eds., 2011).
[17] Case C-431/92, Grosskrotzenburg, 1995 E.C.R. I-2189; Case C-224/9, Ciola,1999 E.C.R. I-2517.
[18] Damian Chalmers & Luis Barroso, What Van Gend en Loos stands for, 105 Int’l J. Const. L. 106, 107 (2014).
[19] Van Gend en Loos, 1963 E.C.R. at 12.
[20] Case C-236/92, Comitato di Coordinamento per la Difesa de la Cavaand v. Regione Lombardia, 1994 E.C.R. 1-484, at 502 ¶ 8.
[21] Id. at 502 ¶ 9.
[22] Ruffert made the analysis based on Case 8/81, Becker v Finanzamt Munster-Innenstadt, 1982 E.C.R. 53, ¶ 25:
[W]herever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State.
Matthias Ruffert, Rights and Remedies in European Community Law: A Comparative View, 34 Common Mkt. L. Rev. 307, 307 (1997) (emphasis added).
[23] Comitato, 1994 E.C.R. at 502, ¶ 8-9.
[24] See Ruffert, supra note 22, at 313; Walter Van Gerven, Of Rights, Remedies and Procedures, 37 Common Mkt. L. Rev. 501, 515 (2000).
[25] Ruffert, supra note 22, at 307.
[26] Sacha Prechal, Does Direct Effect Still Matter?, 37 Common Mkt. L. Rev. 1047, 1047 (2000).
[27] Weiler, supra note 13, at 94.
[28] Id.
[29] G. Frederico Mancini, The Making of a Constitution for Europe, 26 Common Mkt. L. Rev. 595, 599 (1989).
[30] Weiler, supra note 13, at 103.
[31] Prechal, supra note 26, at 1069.
[32] Weiler, supra note 13; Mihail Milev, A Democratic Deficit in the European Union? 5 (2003–2004) (unpublished M.A. dissertation, Centre International de Formation Europeenne).
[33] See Consolidated Version of the Treaty on European Union, supra note 9, at art. 2 (“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the member states in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”).
[34] Weiler, supra note 13, at 99.
[35] Van Gend en Loos, 1963 E.C.R. at 12.
[36] Weiler, supra note 13, at 103.
[37] Prechal, supra note 26, at 1069.
[38] André Barrinha, The European Union: An Imperfect Democracy, Canterbury Christ Church U. (Mar. 27, 2016), https://blogs.canterbury.ac.uk/expertcomment/the-european-union-an-imperfect-democracy/.
[39] Weiler, supra note 13, at 94.
[40] Agustín J. Menéndez, The European Democratic Challenge 51 (Centre for European Studies U. of Oslo, Working Paper No. 4, 2008), available at https://www.sv.uio.no/arena/english/research/publications/arena-working-papers/2001-2010/2008/wp08_04.pdf.
[41] Case 6/64, Flaminio Costa v. E.N.E.L., 1964 E.C.R. 1141.
[42] Sophie Robin-Olivier, The Evolution of Direct Effect in the EU: Stocktaking, Problems and Projections, 12 Int’l J. Const. L. 165, 165 (2014).
[43] Case C-430/93, Van Schijndel v. Stichting Pensioenfonds voor Fysiootherapeuten, 1995 E.C.R. I-4705.
[44] Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, 1996 E.C.R. I-2553.
[45] Case C-7295, Aaannemersbedrijf P. K. Kraaijeveld B.V. v. Gedeputeerde Staten van Zuid, 1996 E.C.R. I- 5403.
[46] Prechal, supra note 26, at 1052.
[47] Robin-Oliver, supra note 43, at 186.
[48] Alex Easson, The “Direct Effect” of EEC Directives, 28 Int’l & Comp. L.Q. 319, 320 (1979).
[49] Prechal, supra note 26, at 1056.
