National and Kapodistrian University of Athens

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1 National and Kapodistrian University of Athens Erasmus Programme European Law Konstantinos Manikas THE EUROPEAN UNION s LEGAL ORDER (IV) PRINCIPLES

2 I. PRINCIPLE OF SUPREMACY (a) Case 6/64 Costa v ENEL By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, 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, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. [ ] 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.

3 I. PRINCIPLE OF SUPREMACY (b) Declaration no. 17 to the Treaty on the Functioning of the European Union concerning primacy The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260): Opinion of the Council Legal Service of 22 June 2007 It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 [ ] there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice. [ ]

4 I. PRINCIPLE OF SUPREMACY (c) In case of a conflict between EU law and national law, the former should prevail. Case 11/70 Internationale Handelsgesellschaft In fact,the law stemming from the Treaty,an independent source of law,cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure. All sources of EU law should prevail over any provision of national law, including constitutional law, as well as over any international agreement concluded by Member States after their accession to the EU. The principle of supremacy is addressed to and binds all authorities of a Member State (either legislative, governmental/administrative or judicial).

5 I. PRINCIPLE OF SUPREMACY (d) Case 106/77 Simmenthal [ ] Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. [ ] A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means. It follows from the principle of supremacy that all national courts are bound to set aside any provision of national law which is incompatible with EU law, while they should not wait for annulment or repeal of the relevant provision by domestic legislative or other constitutional means. Limitations on the principle of supremacy may derive from EU law itself (e.g. Article 5(1)(2) TEU (principle of conferral); Article 4(2) TEU (duty to respect national identities); Article 351(1)(2) TFEU (international agreements concluded by Member States prior to their accession to the EU);general principles of EU law such as the principle of legal certainty;

6 II. PRINCIPLE OF DIRECT EFFECT (a) Case 26/62 Van Gend en Loos The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. [ ] 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 subjects of which comprise not only Member States but also their nationals. 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 in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.

7 II. PRINCIPLE OF DIRECT EFFECT (b) The principle of direct effect signifies that a provision of EU law can, under specific conditions, confer rights on individuals, that the latter may invoke and rely on before national courts. Ensures (i) protection of individuals rights under EU law and (ii) effectiveness of EU law. Criteria for direct effect: In order to produce direct effect, an EU law provision: 1. must be clear and precise, meaning that it must be expressed in unequivocal terms, leaving no room for different interpretations; 2. must be unconditional, meaning that it must not be subject to the taking of any implementing or other measures, either by the institutions of the Community or by the Member States,in order for it to have legal effect; 3. the deadline for implementation of the provision into national law (if required) must have expired. Division between vertical and horizontal direct effect: 1. Vertical direct effect: an individual may rely on an EU law provision against the Member State or its emanations. 2. Horizontal direct effect: individuals may rely on an EU law provision against another individual.

8 II. PRINCIPLE OF DIRECT EFFECT (c) Treaties The Treaties produce both vertical (Case 26/62 Van Gend en Loos; Case 57/65 Lütticke) and horizontal (Case 43/75 Defrenne) direct effect. Secondary law 1. Regulations produce both vertical (Case 73/91 Leonesio) and horizontal (Case C-253/00 Muñoz) direct effect. 2. Directives produce vertical direct effect if not transposed within the prescribed deadline or not transposed correctly (Case 41/74 Van Duyn). They do not produce horizontal direct effect; they cannot of themselves impose obligations on individuals as they are addressed to Member States (Case 152/84 Marshall I). Member States which have failed to transpose a directive within the prescribed time-limit may not rely on it in proceedings against individuals (Case C-403/01 Pfeifer).

9 III. INTERPRETATION OF NATIONAL LAW IN CONFORMITY WITH EU LAW (a) Case 14/83 Von Colson 28. It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law. Case C-106/89 Marleasing It follows that, in applying national law, whether the provisions in question were adopted before or after the directive,the national court called upon to interpret it is required to do so,as far as possible,in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty. Case C /01 Pfeiffer 115. The principle that national law must be interpreted in conformity with Community law [ ] requires the national court to consider national law as a whole in order to assess to what extent it may beappliedsoasnottoproducearesultcontrarytothatsoughtbythedirective In that context, if the application of interpretative methods recognised by national law enables, in certain circumstances,a provision of domestic law to be construed in such a way as to avoid conflict with another rule of domestic law or the scope of that provision to be restricted to that end by applying it only in so far as it is compatible with the rule concerned, the national court is bound to use those methods in order to achieve the result sought by the directive.

10 III. INTERPRETATION OF NATIONAL LAW IN CONFORMITY WITH EU LAW (b) National courts must interpret national law,sofaraspossible,in the light of the wording and purpose of the directive concerned, irrespective of whether the relevant provisions produce direct effect. National courts must take into account the whole body of rules of national law, e.g. not only those implementing a directive, and select an interpretative method which allows to construe the challenged provision in such a way so as to ensure that EU law isfullyeffective. Limitations: 1. National courts are bound to interpret national law in conformity with the directive concerned only after the expiry of the deadline prescribed for its transposition. 2. National courts are not obliged to interpret national law contra legem.