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SUPPLEMENTARY MOOT BUNDLE 2019 (ACADEMIC MATERIALS)
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1
The materials provided herein are reproduced with the kind permission of the author and
publisher of the following textbook, which the CEEMC Organisers highly recommend:
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competition, selected by the judges on the basis of their outstanding advocacy skills.
3
European Law I
Nature – Direct Effect
Introduction
Classic international law holds that each State can choose the relationship
between its domestic law and international law.Two – constitutional – theories
thereby exist: monism and dualism. Monist States make international law part of
their domestic legal order. International law will here directly apply as if it were
domestic law.1
By contrast,dualist States consider international law separate from
Contents
Introduction 76
1. Primary Union Law:The Effect of the Treaties 81
a. Direct Effect: From Strict to Lenient Test 84
b. Dimensions: Vertical and Horizontal Direct Effect 86
2. Direct Union Law: Regulations and Decisions 89
a. Regulations: The ‘Legislative’ Instrument 89
aa. General Application in All Member States 89
bb. Direct Application and Direct Effect 90
b. Decisions: The Executive Instrument 92
aa. Specifically Addressed Decisions 93
bb. Non-addressed Decision 94
3. Indirect Union Law: Directives 95
a. Direct Effect and Directives: Conditions and Limits 96
aa. The No-horizontal-direct-effect Rule 98
bb. The Limitation to the Rule: The Wide Definition of State (Actions) 100
cc. The Exception to the Rule: Incidental Horizontal Direct Effect 101
b. Indirect Effects through National and (Primary) European Law 103
aa. The Doctrine of Consistent Interpretation of National Law 103
bb. Indirect Effects through the Medium of European Law 106
4. External Union Law: International Agreements 110
a. The Conditions of Direct Effect 111
b. The Dimensions of Direct Effect 114
Conclusion 115
Further Reading 117
1
See Art.VI, Clause 2 of the United States Constitution (emphasis added): ‘[A]ll Treaties
made, or which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.’
European Law I 77
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 – externally
– ‘on’ States, they cannot be binding ‘in’ States. International law needs to
be ‘transposed’ or ‘incorporated’ into domestic law and may, at most, have indirect
effects through the medium of national law. The dualist theory is based on a
basic division of labour: international institutions apply international law, while
national institutions apply national law. For an illustration of the two theories,
see Figure 3.1.
Did the European Union leave the choice between monism and dualism
to its Member States?2
For dualist States, all European law would need to be
‘incorporated’ into national law before it could have domestic effects.3
Here,
there is no direct applicability of European law, as all European norms are mediated
through national law and individuals will consequently never come into
direct contact with European law.Where a Member State violates European law,
this breach can only be established and remedied at the European level. The
European Treaties indeed contained such an ‘international’ remedial machinery
against recalcitrant Member States in the form of enforcement actions before the
Court of Justice.4
Another Member State or the Commission – but not individuals
– could here bring an action to enforce their rights.
Did this not signal that the European Treaties were international treaties that
tolerated the dualist approach? Not necessarily, for the Treaties also contained
strong signals against the ‘ordinary’ international law reading. Not only was
the Union entitled to adopt legal acts that were to be ‘directly applicable in all
Member States’;5
from the very beginning, the Treaties also contained a judicial
Figure 3.1 Monism and Dualism in National Law
Monism Dualism
StateState
International Law
2
Under international law, the choice between monism and dualism is a ‘national’ choice.
Thus, even where a State chooses the monist approach (like the United States), monism in
this sense only means that international norms are constitutionally recognised as an autonomous
legal source of domestic law. Dualism, by contrast, means that international norms
will not automatically, that is: through a constitutional incorporation, become part of the
national legal order. Each international treaty demands a separate legislative act ‘incorporating’the
international norm into domestic law.The difference between monism and dualism
thus boils down to whether international law is incorporated via the constitution, as in the
United States; or whether international treaties need to be validated by a special parliamentary
command, as in the United Kingdom.The idea that monism means that States have no
choice but to apply international law is not accepted in international law.
3
For this dualist technique, see (amended) European Communities Act 1972 as well as the
European Union Act 2011 – both discussed in the next chapter.
4
On this point, see Chapter 10, section 3(a).
5
Art. 288(2) TFEU.
Constitutional Foundations78
mechanism that envisaged the direct application of European law by the national
courts.6
But regardless of the intention of the founding Member States, the
European Court discarded any dualist reading of Union law in the most important
case of European law: Van Gend en Loos.7
The Court here cut the umbilical
cord with classic international law by insisting that the European legal order was
a ‘new legal order’. In the famous words of the Court:
The objective of the E[U] Treaty, which is to establish a common market, the functioning
of which is of direct concern to interested parties in the [Union], implies
that this Treaty is more than an agreement which merely creates mutual obligations
between the contracting States. This view is confirmed by the preamble to the Treaty
which refers not only to the 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 nations of the States brought together in the [Union] are called
upon to cooperate in the functioning of this [Union] through the intermediary of the
European Parliament and the Economic and Social Committee.
In addition the task assigned to the Court of Justice under Article [267 TFEU], the
object of which is to secure uniform interpretation of the Treaty by national courts
and tribunals, confirms that the States have acknowledged that [European] law has
an authority which can be invoked by their nationals before those courts and tribunals.
The conclusion to be drawn from this is that the [Union] 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, [European] law therefore not only imposes obligations on individuals but is
also intended to confer upon them rights which become part of their legal heritage.8
All judicial arguments here marshalled to justify a monistic reading of European
law are debatable.9
But with a stroke of the pen, the Court confirmed the independence
of the European legal order from classic international law. Unlike
ordinary international law, the European Treaties were more than agreements
creating mutual obligations between States. European law was to be enforced in
national courts – despite the parallel existence of an international enforcement
machinery.10
Individuals were subjects of European law and individual rights and
obligations could consequently derive directly from European law.
6
Ibid.,Art. 267. On the provision, see Chapter 10, section 4.
7
Case 26/62, Van Gend en Loos v. Netherlands Inland Revenue Administration [1963] ECR
(English Special Edition) 1.
8
Ibid., 12 (emphasis added).
9
For a critical overview, see T. Arnull, The European Union and Its Court of Justice (Oxford
University Press, 2006), 168ff.
10
Case 26/62, Van Gend en Loos, 13. On the ‘centralised’ (international) enforcement methods
within the EU legal order generally, see Chapter 10.
European Law I 79
Importantly, all European law is directly applicable law,11
and the European
Union would therefore be able to itself determine the effect and nature of
all European law within the national legal orders. The direct applicability of
European law indeed allowed the Union centrally to develop two foundational
doctrines of the European legal order: the doctrine of direct effect and the doctrine
of supremacy.The present chapter deals with the doctrine of direct effect;
Chapter 4 deals with the doctrine of supremacy.
What is the doctrine of direct effect? It is vital to understand that the Court’s
decision in favour 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 by national courts or the national executive (see Figure
3.2).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.12
But not all legal norms
Figure 3.2 Direct Effect
Member State
EU Law
Direct
Applicability
Direct
Effect
L
E
J
11
The direct applicability of the European Treaties is, at first sight, harder to justify, as many
legal orders seem to ‘transpose’ them into national law. However, from a European constitutional
perspective,the national ratification of a new draft (!) EUTreaty is not transposing
EU primary law into national law. Indeed, after Van Gend en Loos, a fundamental distinction
must be made between the individual national decision to ratify the (amendment to
the) EU Treaties, and their coming into effect once all (!) the Member States have ratified
them. For it is, importantly, solely the collective decision of all the Member States to agree
to Treaty (amendments) that establishes the validity of the EU Treaties. Not the individual
(national) ratification act but the collectivity of the Member States ratifying the Treaties
underpins the validity of EU primary law; and, once that primary law exists, it is directly
applicable in all the national legal orders.With the Lisbon Treaty, the distinction between
the validity of EU primary law and national ratification has indeed gained further strength
by means of the introduction of the simplified revision procedures set out in Art. 48(7)
TEU.According to the latter, the European Union may – admittedly, for a very small part
of primary law – change itsTreaties if backed up by the tacit consent of national parliaments.
This route allows for constitutional change through parliamentary inaction.And the validity
and direct applicability of primary Union law is here clearly independent of any national
ratification or transposition.
12
On the application of the doctrine of direct effect to the national executive branch, see
Conclusion below.
Constitutional Foundations80
have this quality. For example, where a European norm requires Member States
to establish a public fund to guarantee unpaid wages for insolvent private companies,
yet leaves a wide margin of discretion to the Member States on how to
achieve that end, this norm is not intended to have direct effects in a specific
situation.While it binds the national legislator, the norm is not self-executing. The
concept of direct applicability is thus wider than the concept of direct effect.
Whereas the former refers to the internal effect of a European norm within
national legal orders, the latter refers to the individual effect of a norm in specific
cases.13
Direct effect requires direct applicability, but not the other way around.
However, the direct applicability of a norm only makes its direct effect possible.
After all these terminological preliminaries, when will European law have
direct effect? And are there different types of direct effect?This chapter explores
the doctrine of direct effect across the various sources of European law. It will
start with the direct effect of the European Treaties in section 1.The European
Treaties, as primarily law, also envisage the adoption of European secondary law.
This secondary law may take various forms.These forms are defined in Article
288 TFEU,14
which defines the Union’s legal instruments and states:
[1] To exercise the Union’s competences, the institutions shall adopt regulations,
directives, decisions, recommendations and opinions.
[2] A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States.
[3] A directive shall be binding, as to the result to be achieved, upon each Member
State to which it is addressed, but shall leave to the national authorities the
choice of form and methods.
[4] A decision shall be binding in its entirety. A decision which specifies those to
whom it is addressed shall be binding only on them.
[5] Recommendations and opinions shall have no binding force.
The provision acknowledges three binding legal instruments – regulations,directives
and decisions – and two non-binding instruments.15
Why was there a need for
13
In this sense direct applicability is a ‘federal’ question as it relates to the effect of a ‘foreign’
norm in a domestic legal system, whereas direct effect is a ‘separation-of-powers’ question
as it relates to the issue whether a norm is addressed to the legislature or the executive and
judiciary.
14
The institutional practice of Union decision-making has created a number of‘atypical’acts.
For a discussion of atypical acts,see J.Klabbers,‘Informal Instruments before the European
Court of Justice’(1994) 31 CML Rev. 997.But see also now:Art.296TFEU – third indent:
‘When considering draft legislative acts, the European Parliament and the Council shall
refrain from adopting acts not provided for by the relevant legislative procedure in the area
in question.’
15
Logic would dictate that non-binding acts are not binding. Yet, the European Court
has accepted the possibility of their having some ‘indirect’ legal effect. In Case 322/88,
Grimaldi v. Fonds des maladies professionelles [1989] ECR 4407, para. 18, the Court held
European Law I 81
three distinct binding instruments?The answer seems to lie in their specific – direct
and indirect – effects in the national legal orders.While regulations and decisions
were considered Union acts that directly establish legal norms (section 2),directives
appeared to be designed as indirect forms of legislation (section 3).
Sadly, Article 288 TFEU is incomplete, for it only mentions the Union’s
internal instruments.A fourth binding instrument indeed needs to be ‘read into’
the list: international agreements. Union agreements are not only binding upon
the institutions of the Union, but also ‘on its Member States’.16
Did this mean
that international agreements were an indirect form of external legislation, or
could they be binding ‘in’ the Member States? Section 4 will analyse the doctrine
of direct effects for international agreements.17
The extent to which the Union uses these various legal instruments can be
seen inTable 3.1. It shows that – from a comparative point of view – regulations
and decisions are the clearly dominating instruments of the Union. Directives,
by contrast, represent a tiny fraction of the legal output of the Union today – an
output that is even overshadowed by the number of international agreements
yearly concluded by the Union with third States.
1. Primary Union Law: The Effect of the Treaties
The European Treaties are framework treaties.They establish the objectives of
the European Union, and endow it with the powers to achieve these objectives.
Table 3.1 EU Legislative Output: Legal Instruments (2015–17)
2015 2016 2017
Regulations 1,282 1,216 1,117
Directives 38 41 32
Decisions 800 801 795
International treaties 41 66 74
that recommendations ‘cannot be regarded as having no legal effect’ as they ‘supplement
binding [European] provisions’.‘Non-binding’ Union acts may, therefore, have legal ‘side
effects’. For an interesting overview, see L. Senden, Soft Law in European Community Law:
Its Relationship to Legislation (Hart, 2004).
16
Art. 216(2) TFEU.
17
What this section will however not do is to explore the legal effects of decisions adopted
by international organisations or bodies created by international agreements signed by the
Union.The most prominent example here are so-called EEA decisions, that is: decisions
adopted by the joint committee established by the EEA Agreement between the European
Union and the EFTA States. For a brief analysis of the EEA arrangements, see (online)
Chapter 18B, section 4(b/bb).
Constitutional Foundations82
Many of the European policies in Part III of the TFEU thus simply set out the
competences and procedures for future Union secondary law. The Treaties, as
primary European law,only offer the constitutional bones.But could this constitutional
‘skeleton’ itself have direct effect? Would there be Treaty provisions that
were sufficiently precise to give rise to rights that national courts could apply in
specific situations?
The European Court affirmatively answered this question in Van Gend en
Loos.18
The case concerned a central objective of the European Union:the internal
market. According to that central plank of the Treaties, the Union was to
create a customs union between the Member States.Within a customs union,
goods can move freely without any pecuniary charges levied when crossing
borders.TheTreaties had chosen to establish the customs union gradually;and to
this effect ex-Article 12 EEC contained a standstill obligation:
Member States shall refrain from introducing between themselves any new customs
duties on imports or exports or any charges having equivalent effect, and from
increasing those which they already apply in their trade with each other.19
The Netherlands appeared to have violated this provision, and, believing this
to be the case,Van Gend & Loos – a Dutch importing company – brought
proceedings in a Dutch court against the National Inland Revenue.The Dutch
court had doubts about the admissibility and the substance of the case and
referred a number of preliminary questions to the European Court of Justice.
Could a private party enforce an international treaty in a national court? And,
if so, was this a question of national or European law? In the course of the proceedings
before the European Court, the Dutch government heavily disputed
that an individual could enforce aTreaty provision against its own government in
a national court.Any alleged infringements had to be submitted to the European
Court by the Commission or a Member State under the‘international’infringement
procedures set out in Articles 258 and 259 TFEU.20
The Belgian government,
having intervened in the case, equally claimed that the question of what
effect an international treaty had within the national legal order ‘falls exclusively
within the jurisdiction of the Netherlands court’.21
Conversely,the Commission
countered that ‘the effects of the provisions of the Treaty on the national law of
Member States cannot be determined by the actual national law of each of them
but by theTreaty itself’.22
And since ex-Article 12 EEC was‘clear and complete’,
18
Case 26/62, Van Gend en Loos.
19
The provision has been repealed. Strictly speaking, it is therefore not correct to identify
Art. 30 TEU as the successor provision, for the latter is based on ex-Arts. 13 and 16 EEC.
The normative content of ex-Art. 12 EEC solely concerned the introduction of new customs
duties; and therefore did not cover the abolition of existing tariff restrictions.
20
Case 26/62,Van Gend en Loos,6.On enforcement actions by the Commission,see Chapter
10, section 3(a).
21
Case 26/62, Van Gend en Loos, 6. 22
Ibid.
European Law I 83
it was ‘a rule of law capable of being effectively applied by the national court’.23
The fact that the European provision was addressed to the Member States did
‘not of itself take away from individuals who have an interest in it the right to
require it to be applied in the national courts’.24
Two views thus competed before the Court.According to the dualist ‘international’
view, legal rights of private parties could ‘not derive from the [Treaties]
or the legal measures taken by the institutions, but [solely] from legal measures
enacted by Member States’.25
According to the monist ‘constitutional’ view, by
contrast, European law was capable of directly creating individual rights. The
Court famously favoured the second view. It followed from the ‘spirit’ of the
Treaties that European law was no ‘ordinary’ international law. It would in itself
be directly applicable in the national legal orders.
But when would a provision have direct effect, and thus entitle private parties
to seek its application by a national court? Having briefly presented the general
scheme of theTreaty in relation to customs duties,26
the Court concentrated on
the wording of ex-Article 12 EEC and found as follows:
23
Ibid. 24
Ibid.
25
This was the view of the German government (ibid., 8).
26
The Court considered ex-Art. 12 EEC as an ‘essential provision’ in the general scheme of
the Treaty as it relates to customs duties (ibid., 12).
27
Ibid., 13 (emphasis added).
The wording of [ex-]Article 12 [EEC] contains a clear and unconditional prohibition
which is not a positive but a negative obligation. This obligation, moreover, is not
qualified by any reservation on the part of the States, which would make its implementation
conditional upon a positive legislative measure enacted under national
law. The very nature of this prohibition makes it ideally adapted to produce direct
effects in the legal relationship between Member States and their subjects. The
implementation of [ex-]Article 12 [EEC] does not require any legislative intervention
on the part of the States. The fact that under this Article it is the Member States who
are made the subject of the negative obligation does not imply that their nationals
cannot benefit from this obligation.27
While somewhat repetitive, the test for direct effect is here clearly presented:
wherever the Treaties contain a ‘prohibition’ that was ‘clear’ and ‘unconditional’,
that prohibition would have direct effect. To be an unconditional prohibition
thereby required two things. First, the European provision had to be an automatic
prohibition, that is: it should not depend on subsequent positive legislation by
the European Union.And,second,the prohibition should ideally be absolute,that
is:‘not qualified by any reservation on the part of the States’.
This was a – very – strict test. But ex-Article 12 EEC was indeed ‘ideally
adapted’ to satisfy this triple test. It was a clear prohibition and unconditional in
the double sense outlined above. However, if the Court had insisted on a strict
Constitutional Foundations84
application of all three criteria, very few provisions within the Treaties would
have had direct effect.Yet the Court subsequently loosened the test considerably
(section (a)).And, as we shall see in section (b) below, it clarified that theTreaties
could be vertically and horizontally directly effective.
a. Direct Effect: From Strict to Lenient Test
The direct effect test set out in Van Gend en Loos was informed by three criteria.
First, a provision had to be clear. Second, it had to be unconditional in the sense
of being an automatic prohibition.And, third, this prohibition would need to be
absolute, that is: not allow for reservations. In its subsequent jurisprudence, the
Court expanded the concept of direct effect on all three fronts.
First, how clear would a prohibition have to be to be directly effective?
Within the Treaties’ title on the free movement of goods, we find the following
famous prohibition: ‘Quantitative restrictions on imports and all measures
having equivalent effect shall be prohibited between Member States.’28
Was this
a clear prohibition? While the notion of ‘quantitative restrictions’ might have
been – relatively – clear, what about ‘measures having equivalent effect’? The
Commission had realised the open-ended nature of the concept and offered
some early semantic help.29
And yet, despite all the uncertainty involved, the
Court found that the provision had direct effect.30
The same lenient interpretation of what ‘clear’ meant was soon applied to
even wider provisions. In Defrenne,31
the Court analysed the following prohibition:
‘[e]ach Member State shall ensure that the principle of equal pay for
male and female workers for equal work or work of equal value is applied’.32
Was this a clear prohibition of discrimination? Confusingly, the Court found
that the provision might and might not have direct effect.With regard to indirect
discrimination, the Court considered the prohibition indeterminate, since
it required ‘the elaboration of criteria whose implementation necessitates the
taking of appropriate measures at [European] and national level’.33
Yet in respect
of direct discrimination, the prohibition was directly effective.34
28
Art. 34 TFEU.
29
Directive 70/50/EEC on the abolition of measures which have an effect equivalent to
quantitative restrictions on imports and are not covered by other provisions adopted in
pursuance of the EEC Treaty [1970] OJ English Special Edition 17.
30
Case 74/76, Iannelli & Volpi SpA v. Ditta Paolo Meroni [1977] ECR 557, para. 13: ‘The
prohibition of quantitative restrictions and measures having equivalent effect laid down
in Article [34] of the [FEU] Treaty is mandatory and explicit and its implementation does
not require any subsequent intervention of the Member States or [Union] institutions.The
prohibition therefore has direct effect and creates individual rights which national courts
must protect[.]’
31
Case 43/75, Defrenne v. Sabena [1976] ECR 455, para. 19.
32
Art. 157(1) TFEU. 33
Case 43/75, Defrenne v. Sabena, para. 19.
34
Ibid., para. 24. However, the Court subsequently held the prohibition of indirect pay discrimination
to be also directly effective, see Case 262/88, Barber v. Guardian Royal Exchange
Assurance Group [1990] ECR I-1889, para. 37:‘[Article 157(1)] applies directly to all forms
European Law I 85
What about the second part of the direct effect test? When was a prohibition
automatic? Would this be the case where the Treaties expressly acknowledged
the need for positive legislative action by the Union to achieve a Union objective?
For example, the Treaty chapter on the right of establishment contains not
just a prohibition addressed to the Member States in Article 49 TFEU,35
the
subsequent Article 50 states:
of discrimination which may be identified solely with the aid of the criteria of equal work
and equal pay referred to by the article in question.’This generous reading was subsequently
extended to the yet wider prohibition of‘any discrimination on grounds of nationality’;see
Case C-85/96, Martínez Sala v. Freistaat Bayern [1998] ECR I-2691, para. 63.
35
Art. 49(1)TFEU states:‘Within the framework of the provisions set out below, restrictions
on the freedom of establishment of nationals of a Member State in the territory of another
Member State shall be prohibited. Such prohibition shall also apply to restrictions on the
setting-up of agencies, branches or subsidiaries by nationals of any Member State established
in the territory of any Member State. Freedom of establishment shall include the
right to take up and pursue activities as self-employed persons and to set up and manage
undertakings, in particular companies or firms within the meaning of the second paragraph
of Article 54, under the conditions laid down for its own nationals by the law of
the country where such establishment is effected, subject to the provisions of the Chapter
relating to capital.’
36
Case 2/74, Reyners v. Belgian State [1974] ECR 631. For an excellent discussion of this
question,see P.Craig,‘Once Upon aTime in theWest:Direct Effect and the Federalisation
of EEC Law’ (1992) 12 Oxford Journal of Legal Studies 453 at 463–70.
37
Case 2/74, Reyners, para. 32.
38
Case 85/96, Martínez Sala v. Freistaat Bayern. 39
Art. 36 TFEU.
In order to attain freedom of establishment as regards a particular activity, the
European Parliament and the Council, acting in accordance with the ordinary legislative
procedure and after consulting the Economic and Social Committee, shall act
by means of directives.
Would this not mean that the freedom of establishment was conditional on
legislative action? In Reyners,36
the Court rejected this argument.Despite the fact
that the general scheme within the chapter on freedom of establishment contained
a set of provisions that sought to achieve free movement through positive
Union legislation,37
the Court declared the European right of establishment in
Article 49 TFEU to be directly effective. And the Court had no qualms about
giving direct effect to the general prohibition on‘any discrimination on grounds
of nationality’– despite the fact that Article 18 TFEU expressly called on the
Union legislator to adopt rules ‘designed to prohibit such discrimination’.38
Finally, what about the third requirement? Could relative prohibitions, even
if clear, ever be directly effective? The prohibition on quantitative restrictions
on imports, discussed above, is subject to a number of legitimate exceptions
according to which it ‘shall not preclude prohibitions or restrictions on imports,
exports or goods in transit justified on grounds of public morality, public policy
or public security’.39
Was this then a prohibition that was ‘not qualified by any
Constitutional Foundations86
reservation on the part of the States’? The Court found that this was indeed the
case. For although these derogations would ‘attach particular importance to the
interests of Member States, it must be observed that they deal with exceptional
cases which are clearly defined and which do not lend themselves to any wide
interpretation’.40
And since the application of these exceptions was ‘subject to
judicial control’, a Member State’s right to invoke them did not prevent the
general prohibition‘from conferring on individuals rights which are enforceable
by them and which the national courts must protect’.41
What, then, is the test for the direct effect of Treaty provisions in light of
these – relaxing – developments? The simple test is this: a provision has direct
effect when it is capable of being applied by a national court. Importantly, direct
effect does not depend on a European norm granting a subjective right;42
but on
the contrary, the subjective right is a result of a directly effective norm.43
Direct
effect simply means that a norm can be ‘invoked’ in and applied by a court.And
this is the case when the Court of Justice says it is!Today, almost allTreaty prohibitions
have direct effect – even the most general ones. In Mangold,44
the Court
thus held that an – unwritten and vague – general principle of European law
could have direct effect.
Should we embrace this development? We should, for the direct effect of a
legal rule ‘must be considered as being the normal condition of any rule of law’.
The very questioning of the direct effect of European law was an ‘infant disease’
of the young European legal order.45
And this infant disease has today – largely –
been cured but for one area: the Common Foreign and Security Policy.
b. Dimensions: Vertical and Horizontal Direct Effect
Where aTreaty provision is directly effective,an individual can invoke European
law in a national court (or administration).This will normally be as against the
State.This situation is called ‘vertical’ effect, since the State is ‘above’ its subjects.
But while a private party is in subordinate position vis-à-vis public authorities,
it is in a coordinate position vis-à-vis other private parties.The legal effect of a
norm between private parties is thus called ‘horizontal’ effect.And while there
40
Case 13/68, Salgoil v. Italian Ministry of ForeignTrade [1968] ECR 453 at 463.
41
Case 41/74, van Duyn v. Home Office [1974] ECR 1337, para. 7.
42
For the opposite view, see K. Lenaerts and T. Corthaut,‘Of Birds and Hedges:The Role
of Primacy in Invoking Norms of EU Law’ (2006) 31 EL Rev. 287 at 310: direct effect ‘is
the technique which allows individuals to enforce a subjective right which is only available
in the internal legal order in an instrument that comes from outside that order, against
another (state or private) actor’.
43
M. Ruffert,‘Rights and Remedies in European Community Law: A Comparative View’
(1997) 34 CML Rev. 307 at 315.
44
For a long discussion of this case, see section 3(b/bb).
45
P. Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’
(1983) 8 EL Rev. 155.
European Law I 87
has never been any doubt that Treaty provisions can be invoked in a vertical
situation, there has been some discussion about their horizontal direct effects.
Should it make a difference whether European law is invoked in administrative
proceedings against the Inland Revenue or in a civil dispute between
two private parties? Should the Treaties be allowed to impose obligations on
individuals? The Court in Van Gend en Loos had accepted this theoretical pos-
sibility.46
And, indeed, the horizontal direct effect of Treaty provisions has never
been in doubt for the Court.47
A good illustration of the horizontal direct effect
of Treaty provisions can be found in Familiapress v. Bauer.48
The case concerned
the interpretation of Article 34 TFEU prohibiting unjustified restriction on the
free movement of goods.It arose in a civil dispute before theVienna Commercial
Court between Familiapress and a German competitor.The latter was accused
of violating the Austrian Law on Unfair Competition by publishing prize crossword
puzzles – a sales technique that was deemed unfair under Austrian law.
Bauer defended itself in the national court by invoking Article 34 TFEU –
claiming that the directly effective European right to free movement prevailed
over the Austrian law.And the Court of Justice indeed found that a national law
that constituted an unjustified restriction of trade would have to be disapplied
in the civil proceedings.
The question whether a Treaty prohibition has horizontal direct effect must,
however, be distinguished from the question of whether it also outlaws private
party actions. For example, imagine that the rule prohibiting prize crossword
puzzles had not been adopted by the Austrian legislature but by the Austrian
Press Association – a private body regulating Austrian newspapers.Would this
‘private’rule equally breach Article 34TFEU?The latter is not simply a question
of the effect of a provision, but rather of its personal scope.49
ManyTreaty prohibitions are – expressly or implicitly – addressed to the State.50
However, the Treaties equally contain provisions that are directly addressed to
private parties.51
The question whether a Treaty prohibition covers public as
well as private actions is controversial. Should the ‘equal pay for equal work’
principle or the free movement rules – both expressly addressed to the Member
46
Case 26/62, Van Gend en Loos, 12:‘[European] law therefore not only imposes obligations
on individuals …’.
47
Indeed, the direct effect of Art. 34 TFEU was expressly announced in a ‘horizontal’ case
between two private parties; see Case 74/76, Iannelli &Volpi v. Paolo Meroni.
48
Case C-368/95, Vereinigte Familiapress Zeitungsverlags- und vertriebs GmbH v. Bauer Verlag
[1997] ECR I-3689.
49
This point will be further discussed in the specific context of the free movement of goods,
see Chapter 13, section 1(a).
50
For example,Art. 157 TFEU states (emphasis added) that ‘[e]ach Member State shall ensure
that the principle of equal pay for male and female workers for equal work or work of
equal value is applied’; and Art. 34 TFEU prohibits restrictions on the free movement of
goods ‘between Member States’.
51
Art. 101 TFEU prohibits ‘all agreements between undertakings’ that restrict competition
within the internal market, and is thus addressed to private parties.
Constitutional Foundations88
States – also implicitly apply to private associations and their actions? If so, the
application of the Treaty will not just impose indirect obligations on individuals
(when they lose their right to rely on a national law that violates European law);
they will be directly prohibited from engaging in an activity.The Court has – in
principle – confirmed that Treaty provisions, albeit addressed to the Member
States, might cover private actions.52
Thus in Defrenne, the Court found that
the prohibition on pay discrimination between men and women could equally
apply to private employers.53
And, while the exact conditions remain uncer-
tain,54
the Court has confirmed and reconfirmed the inclusion of private actions
within the free movement provisions.55
To distinguish the logical relations between the various constitutional concepts
of direct applicability, direct effect – both vertical (VDE) and horizontal
(HDE) – and private party actions, Figure 3.3 may be useful.
Figure 3.3 Direct Applicability, Direct Effect and Private Party Actions
HDE PPA
Direct Applicability
Private Party Actions
VDE
Direct Effect
52
Case 36/74, Walrave et al. v. Association Union cycliste international et al. [1974] ECR 1405,
para. 19:‘to limit the prohibitions in question to acts of a public authority would risk creating
inequality in their application’.
53
Case 43/75, Defrenne, para. 39:‘In fact, since Article [157 TFEU] is mandatory in nature,
the prohibition on discrimination between men and women applies not only to the action
of public authorities,but also extends to all agreements which are intended to regulate paid
labour collectively, as well as to contracts between individuals.’
54
The Court generally limits this application to ‘private’ rules that aim to regulate ‘in a
collective manner’ (ibid., para. 17). For somewhat more recent case law on the application
of the free movement rules to private parties, see Case C-415/93, Union Royale Belge des
Sociétés de Football Association ASBL v. Jean-Marc Bosman [1995] ECR I-4921.
55
This has been confirmed for all four freedoms, with the possible exception of the provisions
on goods. On the application of the free movement provisions in this context, see
Chapter 13, section 1(a). For the same question in the context of EU fundamental rights,
see Chapter 12, section 4(d).
European Law I 89
2. Direct Union Law: Regulations and Decisions
When the European Union was created, the Treaties envisaged two instruments
that were a priori directly applicable: regulations and decisions. A regulation
would be an act of direct and general application in all Member States. It was
designed as the legislative act of the Union. By contrast, a decision was originally
seen as the executive instrument of the Union. It would directly apply to
those to whom it was addressed.56
Both instruments were predestined to have
direct effects in the sense of allowing individuals to directly invoke them before
national courts. Nonetheless, their precise effects have remained – partially –
controversial.Would all provisions within a regulation be directly effective? And
could decisions be generally applicable? Let us look at these questions in turn.
a. Regulations: The ‘Legislative’ Instrument
Article 288 defines a ‘regulation’ as follows:
A regulation shall have general application. It shall be binding in its entirety and
directly applicable in all Member States.57
This definition demands four things. First, regulations must be generally applicable.
Second, they must be entirely binding.Third, they must be directly applicable,
and that – fourth – in all Member States.This section starts by investigating
characteristics one and four. It subsequently analyses the relationship between
direct applicability and the question of direct effect.58
aa. General Application in All Member States
Regulations were designed to be an instrument of (material) legislation.59
Their
‘general application’ was originally meant to distinguish them from the ‘specific
application’ of decisions.
In Zuckerfabrik Watenstedt GmbH v. Council,60
the European Court defined
‘general’ applicability as ‘applicable to objectively determined situations and
involves legal consequences for categories of persons viewed in a general and
abstract manner’;yet conceded that a regulation would not lose its general nature
‘because it may be possible to ascertain with a greater or lesser degree of accuracy
56
The original Art. 189 EEC stated:‘A decision shall be binding in its entirety upon those to
whom it is addressed.’
57
Art. 288(2) TFEU.
58
We shall analyse the ‘second’ element in Chapter 4, section 4(a/aa) when dealing with a
regulation’s pre-emptive capacity.
59
Joined Cases 16–17/62, Confédération Nationale des Producteurs de Fruits et de Légumes v.
Council [1962] ECR 471, para. 2. On the material concept of legislation, see Chapter 7,
Introduction.
60
Case 6/68, ZuckerfabrikWatenstedt GmbH v. Council [1968] ECR 409.
Constitutional Foundations90
the number or even the identity of the persons to which it applies at any given
time as long as there is no doubt that the measure is applicable as a result of an
objective situation of law or of fact which it specifies’.61
The crucial characteristic
of a regulation – a characteristic that would give it a ‘legislative’ character – is
thus the ‘openness’ of the group of persons to whom it applies.Where the group
of persons is‘fixed in time’the act would not constitute a regulation but a bundle
of individual decisions.62
Would all provisions within a regulation have to satisfy the general applicability
test?The European Court has clarified that this is not the case. Not all provisions
of a regulation must be general in character. Some provisions may indeed
constitute individual decisions ‘without prejudice to the question whether that
measure considered in its entirety can be correctly called a regulation’.63
This
laxer threshold has also been applied to the geographical scope of regulations.
Article 288TFEU tells us that they must be applicable in all the Member States.
However,the European Court sees a regulation’s geographical applicability from
an abstract perspective:while normatively valid in all Member States,its concrete
application can be confined to a limited number of States.64
bb. Direct Application and Direct Effect
By making regulations directly applicable, the Treaties recognised from the very
beginning a monistic connection between that Union act and the national
legal orders. Regulations would be automatically binding within the Member
States – a characteristic that distinguished them from ordinary international law.
Regulations were thus ‘a direct source of rights and duties for all those affected
thereby, whether Member States or individuals, who are parties to legal relationships
under [European] law’.65
In 1958, this was extraordinary: the Union
had been given the power to directly legislate for all individuals in the Member
States.66
Would the direct application of regulations imply their direct effect? Direct
applicability and direct effect are, as we saw above,67
distinct concepts. The
former refers to the normative validity of regulations within the national legal
order.Direct applicability indeed simply means that no‘validating’national act is
needed for European law to have effects within the domestic legal orders:‘The
direct application of a Regulation means that its entry into force and its application
in favour of those subject to it are independent of any measure of reception
61
Ibid., at 415.
62
Joined Cases 41–4/70,International Fruit Company and others v.Commission [1971] ECR411,
esp. para. 17.
63
Joined Cases 16–17/62, Confédération Nationale des Producteurs de Fruits et Légumes, para. 2.
64
Case 64/69, Compagnie Française commerciale et financière v. Commission [1970] ECR 221.
65
Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629,
paras. 14–15 (emphasis added).
66
J.-V. Louis, Les Règlements de la Communauté Économique Européenne (Presses universitaires
de Bruxelles, 1969), 16.
67
See Introduction to this chapter.
European Law I 91
into national law.’68
Direct effect, on the other hand, refers to the ability of a
norm to execute itself. Direct applicability thus only makes direct effect possible,
but the former will not automatically imply the latter.The direct application of
regulations thus ‘leave[s] open the question whether a particular provision of a
regulation has direct effect or not’.69
In the words of an early commentator:
Many provisions of regulations are liable to have direct effects and can be enforced by
the courts. Other provisions, although they have become part of the domestic legal
order as a result of the regulation’s direct applicability, are binding for the national
authorities only, without granting private persons the right to complain in the courts
that the authorities have failed to fulfil these binding [Union] obligations. This is by
no means an unrealistic conclusion. In every member State there consists quite a bit
of law which is not enforceable in the courts, because these rules were not meant
to give the private individual enforceable rights or because they are too vague or too
incomplete to admit of judicial application.70
Direct effect is thus narrower than direct applicability. Not all provisions of a
regulation will have to have direct effect.This has been expressly recognised by
the Court.71
In Azienda Agricola Monte Arcosa, the Court thus stated:
68
Case 34/73,FratelliVariola SpA v.Amministrazione delle Finanze dello Stato [1973] ECR 981,
para. 10.
69
P. Pescatore, The Law of Integration: Emergence of a New Phenomenon in International Relations,
Based on the Experience of the European Communities (Sijthoff, 1974), 164.
70
G.Winter,‘Direct Applicability and Direct Effect:Two Distinct and Different Concepts in
Community Law’ (1972) CML Rev. 425 at 436.
71
See Case 230/78, SpA Eridania-Zuccherifici nazionali and SpA Societa Italiana per l’Industria
degli Zuccheri v. Minister of Agriculture and Forestry, Minister for Industry,Trade and Craft Trades
and SpA Zuccherifici Meridionali [1979] ECR 2749; Case 137/80, Commission v. Belgium
[1981] ECR 653; Case 72/85, Commission v. The Netherlands [1986] ECR 1219.
72
Case C-403/98, Azienda Agricola Monte Arcosa Srl [2001] ECR I-103, paras. 26, 28.
[A]lthough, by virtue of the very nature of regulations and of their function in the
system of sources of [European] law, the provisions of those regulations generally
have immediate effect in the national legal systems without its being necessary for
the national authorities to adopt measures of application, some of their provisions
may none the less necessitate, for their implementation, the adoption of measures
of application by the Member States … In the light of the discretion enjoyed by the
Member States in respect of the implementation of those provisions, it cannot be
held that individuals may derive rights from those provisions in the absence of measures
of application adopted by the Member States.72
Legislative discretion left to the national level will thus prevent provisions
within regulations from having direct effect,‘where the legislature of a Member
State has not adopted the provisions necessary for their implementation in the
Constitutional Foundations92
national legal system’.73
Regulations often explicitly call for the adoption of
implementing measures.74
But even if there is no express provision, Member
States are under a general duty to implement non-directly effective provisions
within regulations.75
Yet non-directly effective provisions might still have indirect
effects.These indirect effects have been extensively discussed in the context
of directives, and will be treated there. Suffice to say here that the European
Court applies the constitutional doctrines developed in the context of directives
– such as the principle of consistent interpretation – also to provisions
within regulations.76
b. Decisions: The Executive Instrument
Article 288 defines a Union ‘decision’ as follows:
A decision shall be binding in its entirety. A decision which specifies those to whom
it is addressed shall be binding only on them.77
The best way to make sense of this definition is to contrast it with that for
regulations. Like a regulation, a decision shall be binding in its entirety.And like
a regulation it will be directly applicable.However,unlike a regulation,a decision
was originally not designed to be generally applicable;78
yet,with time,European
constitutional practice developed a non-addressed decision. This development
73
Ibid., para. 29.
74
Art. 2(5) of Regulation 797/85 and Art. 5(5) of Regulation 2328/91 – at issue in Azienda
Agricola Monte Arcosa Srl – indeed stated: ‘Member States shall, for the purposes of this
Regulation, define what is meant by the expression “farmer practising farming as his
main occupation”.’ For an analysis of this practice, see R. Král, ‘National Normative
Implementation of EC Regulations:An Exceptional or Rather Common Matter?’ (2008)
33 EL Rev. 243.
75
For an implicit duty to adopt national implementing measures, see Case C-177/95, Ebony
Maritime et al. v. Prefetto della Provincia di Brindisi et al. [1997] ECR I-1111, para. 35:‘[T]he
Court has consistently held that where a [Union] regulation does not specifically provide
any penalty for an infringement or refers for that purpose to national laws, regulations and
administrative provisions,Article [4(3) TEU] requires the Member States to take all measures
necessary to guarantee the application and effectiveness of [European] law.’
76
Case C-60/02, Criminal proceedings against X [2004] ECR I-651, paras. 61–3, esp. para. 62
(emphasis added):‘Even though in the case at issue in the main proceedings the [Union]
rule in question is a regulation, which by its very nature does not require any national
implementing measures, and not a directive, Article 11 of Regulation No 3295/94
empowers Member States to adopt penalties for infringements of Article 2 of that regulation,
thereby making it possible to transpose to the present case the Court’s reasoning in respect of
directives.’
77
Art. 288(4) TFEU.
78
The old Art. 189 EEC stated: ‘A decision shall be binding in its entirety upon those to
whom it is addressed.’
European Law I 93
is now recognised in Article 288(4) TFEU that allows for two types of decisions:decisions
specifically applicable to those to whom it is addressed,and decisions
that are generally applicable because they are not addressed to anybody
specifically.
aa. Specifically Addressed Decisions
Decisions that mention an addressee shall only be binding on that person.
Depending on whether the addressee(s) are private individuals or Member
States, European law thereby distinguishes between individual decisions and
State-addressed decisions.
Individual decisions are similar to national administrative acts. They are
designed to execute a Union norm by applying it to an individual situation.
A good illustration can be found in the context of competition law, where the
Commission is empowered to prohibit anticompetitive agreements that negatively
affect the internal market.79
A decision that is addressed to a private party
will only be binding on the addressee. However, this will not necessarily mean
that it has no horizontal effects on other parties.Indeed,the European legal order
expressly recognises that decisions addressed to one person may be of ‘direct and
individual concern’ to another.80
In such a situation this ‘third person’ is entitled
to challenge the legality of that decision.81
State-addressed decisions constitute the second group of decisions specifically
applicable to the addressee(s).82
We find again a good illustration of this Union
act in the context of competition law.Here the Union is empowered to prohibit
State aid to undertakings that threaten to distort competition within the internal
market.83
What is the effect of a State-addressed decision in the national legal
orders? Binding on the Member State(s) addressed, may it give direct rights to
individuals? In Grad v. Finanzamt Traunstein,84
the Court answered this question
positively.The German government had claimed that State-addressed decisions
cannot, unlike regulations, create rights for private persons. But the response of
the European Court went the other way:
79
Art. 101 TFEU.
80
Art. 263[4]TFEU:‘Any natural or legal person may, under the conditions laid down in the
first and second paragraphs, institute proceedings against an act addressed to that person or
which is of direct and individual concern to them, and against a regulatory act which is of
direct concern to them and does not entail implementing measures.’
81
For this point, see Chapter 10, section 1(c).
82
On this type of decision,see U.Mager,‘Die staatengerichtete Entscheidung als supranationale
Handlungsform’ (2001) 36 Europarecht 661.
83
Art. 107 TFEU.
84
Case 9/70, Grad v. FinanzamtTraunstein [1970] ECR 825.
[A]lthough it is true that by virtue of Article [288], regulations are directly applicable
and therefore by virtue of their nature capable of producing direct effects, it does not
follow from this that other categories of legal measures mentioned in that Article can
Constitutional Foundations94
never produce similar effects. In particular, the provision according to which decisions
are binding in their entirety on those to whom they are addressed enables the question
to be put whether the obligation created by the Decision can only be invoked by
the [Union] institutions against the addressee or whether such a right may possibly
be exercised by all those who have an interest in the fulfilment of this obligation.
It would be incompatible with the binding effect attributed to decisions by Article
[288] to exclude in principle the possibility that persons affected may invoke the obligation
imposed by a decision. Particularly in cases where, for example, the [Union]
authorities by means of a decision have imposed an obligation on a Member State
or all the Member States to act in a certain way, the effectiveness (‘l’effect utile’) of
such a measure would be weakened if the nationals of that State could not invoke
it in the courts and the national courts could not take it into consideration as part of
[European] law. Although the effects of a decision may not be identical with those
of a provision contained in a regulation, this difference does not exclude the possibility
that the end result, namely the right of the individual to invoke the measures
before the courts, may be the same as that of a directly applicable provision of a
regulation.85
State-addressed decisions could, consequently, create rights for private citizens.They
could have direct effect in certain circumstances.What were those
circumstances?The Court insisted that the direct effect of a provision depended
on‘the nature,background and wording of the provision’.86
And indeed:the provision
in question was a prohibition that was‘unconditional and sufficiently clear
and precise to be capable of producing direct effects in the legal relationships
between the Member States and those subject to their jurisdiction’.87
This test
came close – remarkably close – to the Court’s direct effect test for Treaty provisions.
But would this also imply – like for Treaty provisions – their horizontal
direct effect? State-addressed decisions here seem to follow the legal character of
directives,88
which will be discussed in section 3.
bb. Non-addressed Decisions
While not expressly envisaged by the original Treaties, non-addressed decisions
(decisions sui generis) had become a widespread constitutional phenomenon
within the European Union.89
The Lisbon Treaty has now ‘officialised’ them
in Article 288 TFEU. But what is the function of these decisions? In the past,
85
Ibid., para. 5. 86
Ibid., para. 6. 87
Ibid., para. 9.
88
See Case C-80/06, Carp v. Ecorad [2007] ECR I-4473, paras. 19ff., esp. para. 21:‘In accordance
with Article [288], Decision 1999/93 is binding only upon the Member States,
which, under Article 4 of that decision, are the sole addressees.Accordingly, the considerations
underpinning the case-law referred to in the preceding paragraph with regard to
directives apply mutatis mutandis to the question whether Decision 1999/93 may be relied
upon as against an individual.’
89
For a historical and systematic analysis,see the groundbreaking work by J.Bast,Grundbegriffe
der Handlungsformen der EU: entwickelt am Beschluss als praxisgenerierter Handlungsform des
Unions- und Gemeinschaftsrechts (Springer, 2006).
European Law I 95
the Union had recourse to these decisions – instead of regulations – to have an
instrument that was directly applicable but lacked direct effect.
3. Indirect Union Law: Directives
The third binding instrument of the Union is the most mysterious one: the
directive.According to Article 288 TFEU, a ‘directive’ is defined as follows:
A directive shall be binding, as to the result to be achieved, upon each Member State
to which it is addressed, but shall leave to the national authorities the choice of form
and methods.90
This formulation suggested two things. First, directives appeared to be externally
binding on States – not within States. On the basis of such a ‘dualist’
reading, directives would have no validity in the national legal orders. They
seemed not to be directly applicable, and would thus need to be ‘incorporated’
or ‘implemented’ through national legislation. This dualist view was underlined
by the fact that Member States were only bound as to the result to be
achieved – for the obligation of result is common in classic international law.91
Second, binding solely on the State(s) to which it was addressed, directives
appeared to lack general application. Their general application could indeed
only be achieved indirectly via national legislation transforming the European
content into national form. Directives have consequently been described as
‘indirect legislation’.92
But could this indirect Union law have direct effects? In a courageous line
of jurisprudence, the Court confirmed that directives could – under certain
circumstances – have direct effect and thus entitle individuals to have their
European rights applied in national courts. But, if this was possible, would directives
not become instruments of direct Union law,like regulations?The negative
answer to this question will become clearer in this third section. Suffice to say
here that the test for the direct effect of directives is subject to two additional
limitations – one temporal, one normative. Direct effect would only arise after a
Member State had failed properly to ‘implement’ the directive into national law,
and then only in relation to the State authorities themselves.We shall analyse
the conditions and limits for the direct effect of directives first, before exploring
their potential indirect effects in national law.
90
Art. 288(3) TFEU.
91
For this view, see L.-J. Constantinesco, Das Recht der Europäischen Gemeinschaften (Nomos,
1977),614.For a recent look at the various choices with regard to the methods of transposition,
see R. Král,‘On the Choice of Methods of Transposition of EU Directives’ (2016)
41 EL Rev. 220.
92
Pescatore,‘Doctrine of “Direct Effect”’ (n. 45 above) at 177.
Constitutional Foundations96
a. Direct Effect and Directives: Conditions and Limits
That directives could directly give rise to rights that individuals could claim in
national courts was accepted in Van Duyn v. Home Office.93
The case concerned a Dutch secretary,whose entry into the United Kingdom
had been denied on the grounds that she was a member of the Church of
Scientology. Britain had tried to justify this limitation on the free movement of
workers by reference to an express derogation within the Treaties that allowed
such restrictions on grounds of public policy and public security.94
However, in
an effort to harmonise national derogations from free movement,the Union had
adopted a directive according to which ‘[m]easures taken on grounds of public
policy or of public security shall be based exclusively on the personal conduct
of the individual concerned’.95
This outlawed national measures that limited free
movement for generic reasons, such as membership of a disliked organisation.
Unfortunately, the United Kingdom had not ‘implemented’ the directive into
national law.
CouldVan Duyn nonetheless directly invoke the directive against the British
authorities?The Court of Justice found that this was indeed possible by emphasising
the distinction between direct applicability and direct effect:
[B]y virtue of the provisions of Article [288] regulations are directly applicable and,
consequently, may by their very nature have direct effects, it does not follow from this
that other categories of acts mentioned in that Article can never have similar effects.
It would be incompatible with the binding effect attributed to a directive by Article
[288] to exclude, in principle, the possibility that the obligation which it imposes may
be invoked by those concerned. In particular, where the [Union] authorities have, by
directive, imposed on Member States the obligation to pursue a particular course
of conduct, the useful effect of such an act would be weakened if the individuals
were prevented from relying on it before their national courts and if the latter were
prevented from taking it into consideration as an element of [European] law. Article
[267], which empowers national courts to refer to the Court questions concerning
the validity and interpretation of all acts of the [Union] institutions, without distinction,
implies furthermore that these acts may be invoked by individuals in the national
courts.96
93
Case 41/74, Van Duyn v. Home Office [1974] ECR 1337.
94
Art. 45(1) and (3) TFEU.
95
Directive 64/221 on the coordination of special measures concerning the movement and
residence of foreign nationals which are justified on grounds of public policy, public security
or public health, OJ (English Special Edition): Chapter 1963–1964/117, Art. 3(1)
(emphasis added).
96
Case 41/74, Van Duyn, para. 12.
The Court here – rightly – emphasised the distinction between direct applicability
and direct effect, yet – wrongly – defined the relationship between
these two concepts in order to justify its conclusion.To brush aside the textual
European Law I 97
argument that regulations are directly applicable while directives are not, it
wrongly alluded to the idea that direct effect without direct application was
possible.97
And the direct effect of directives was then justified by three distinct
arguments. First, to exclude direct effect would be incompatible with the
‘binding effect’ of directives. Second, their ‘useful effect’ would be weakened if
individuals could not invoke them in national courts.Third, since the preliminary
reference procedure did not exclude directives, the latter must be capable
of being invoked in national courts.
What was the constitutional value of these arguments? Argument one is a
sleight of hand: the fact that a directive is not binding in national law is not
‘incompatible’ with its binding effect under international law.The second argument
is strong, but not of a legal nature: to enhance the useful effect of a rule
by making it more binding is a political argument. Finally, the third argument
only begs the question: while it is true that the preliminary reference procedure
generically refers to all‘acts of the institutions’,it could be argued that only those
acts that are directly effective can be referred. The decision in Van Duyn was
right, but sadly without reason.
The lack of a convincing legal argument to justify the direct effect of directives
soon prompted the Court to propose a fourth argument:
A Member State which has not adopted the implementing measures required by the
Directive in the prescribed periods may not rely, as against individuals, on its own
failure to perform the obligations which the directive entails.98
This fourth reason has become known as the ‘estoppel argument’ – acknowledging
its intellectual debt to English ‘equity’ law.A Member State that fails to
implement its European obligations is ‘stopped’ from invoking that failure as a
defence, and individuals are consequently – and collaterally – entitled to rely on
the directive as against the State.Unlike the three original arguments,this fourth
argument is State-centric.It locates the rationale for the direct effect of directives
not in the nature of the instrument itself, but in the behaviour of the State.
This (behavioural) rationale would result in two important limitations on the
direct effect of directives. For even if provisions within a directive were ‘unconditional
and sufficiently precise’ ‘those provisions may [only] be relied upon by
97
In the words of J. Steiner:‘How can a law be enforceable by individuals within a MemberState
if it is not regarded as incorporated in that State?’ (‘Direct Applicability in EEC:
A Chameleon Concept’ (1982) 98 Law Quarterly Review 229–48 at 234). The direct
effect of a directive presupposes its direct application. And, indeed, ever since Van Gend
en Loos, all directives must be regarded as directly applicable (see S. Prechal, Directives in
EC Law (Oxford University Press, 2005), 92 and 229). For the same conclusion, see also
C.Timmermans,‘Community Directives Revisited’ (1997) 17YEL 1–28 at 11–12.
98
Case 148/78, Ratti [1979] ECR 1629, para. 22.
Constitutional Foundations98
an individual against the State where that State fails to implement the Directive
in national law by the end of the period prescribed or where it fails to implement the
directive correctly’.99
This direct effect test for directives therefore differed from
that for ordinary Union law, as it added a temporal and a normative limitation.
Temporally, the direct effect of directives could only arise after the failure of
the State to implement the directive had occurred.Thus, before the end of the
implementation period granted to Member States, no direct effect could take
place.And even once this temporal condition had been satisfied,the direct effect
would operate only as against the State.This normative limitation on the direct
effect of directives has become famous as the ‘no-horizontal-direct-effect rule’.
aa. The No-horizontal-direct-effect Rule
The Court’s jurisprudence of the 1970s had extended the direct effect of Union
law to directives.An individual could claim his European rights against a State
that had failed to implement a directive into national law.This situation was one
of ‘vertical’ direct effect. Could an individual equally invoke a directive against
another private party?This‘horizontal’direct effect existed for direct Union law;
yet should it be extended to directives?
The Court’s famous answer is a resolute ‘no’: directives could not have horizontal
direct effects.The ‘no-horizontal-direct-effect rule’ was first expressed in
Marshall.100
The Court here based its negative conclusion on a textual argument:
[A]ccording to Article [288 TFEU] the binding nature of a directive, which constitutes
the basis for the possibility of relying on the directive before a national court, exists
only in relation to ‘each member state to which it is addressed’. It follows that a
directive may not of itself impose obligations on an individual and that a provision of
a directive may not be relied upon as such against such a person.101
The absence of horizontal direct effect was confirmed in Dori.102
A private
company had approached Ms Dori for an English language correspondence
course.The contract had been concluded in Milan’s busy central railway station.
A few days later, she changed her mind and tried to cancel the contract.A right
of cancellation had been provided by the European directive on consumer contracts
concluded outside business premises,103
but Italy had not implemented the
directive into national law. Could a private party nonetheless directly rely on
the unimplemented directive against another private party?The Court was firm:
99
Case 80/86, Kolpinghuis Nijmegen BV [1987] ECR 3969, para. 7 (emphasis added).
100
Case 152/84, Marshall v. Southampton and South-West Hampshire Area Health Authority
[1986] ECR 723.
101
Ibid., para. 48.
102
Case C-91/92, Faccini Dori v. Recreb [1994] ECR I-3325.
103
Directive 85/577 concerning protection of the consumer in respect of contracts negotiated
away from business premises ([1985] OJ L 372/31).
European Law I 99
[A]s is clear from the judgment in Marshall … the case-law on the possibility of relying
on directives against State entities is based on the fact that under Article [288] a
directive is binding only in relation to ‘each Member State to which it is addressed’.
That case-law seeks to prevent ‘the State from taking advantage of its own failure to
comply with [European] law’ … The effect of extending that case-law to the sphere
of relations between individuals would be to recognise a power in the [Union] to
enact obligations for individuals with immediate effect, whereas it has competence to
do so only where it is empowered to adopt regulations. It follows that, in the absence
of measures transposing the directive within the prescribed time-limit, consumers
cannot derive from the directive itself a right of cancellation as against traders with
whom they have concluded a contract or enforce such a right in a national court.104
This denial of any direct effect of directives in horizontal situations was
grounded in three arguments.105
First, a textual argument: a directive is binding
in relation to each Member State to which it is addressed. (But had the Court
not used this very same argument to establish the direct effect of directives in
the first place?) Second, the estoppel argument: the direct effect for directives
exists to prevent a State from taking advantage of its own failure to comply
with European law. And since individuals were not responsible for the nonimplementation
of a directive, direct effect should not be extended to them.
Third, a systematic argument: if horizontal direct effect were given to directives,
the distinction between directives and regulations would disappear.This was a
weak argument,for a directive’s distinct character could be preserved in different
ways.106
In order to bolster its reasoning, the Court added a fourth argument in
subsequent jurisprudence: legal certainty.107
Since directives were not originally
published, they must not impose obligations on those to whom they are not
addressed.This argument has lost some of its force,108
but continues to be very
influential today.
All these arguments may be criticised.109
But the Court of Justice has stuck to
its conclusion: directives cannot directly impose obligations on individuals.They
lack horizontal direct effect.This constitutional rule of European law has nonetheless
been qualified by one limitation and one exception.
104
Case C-91/92, Dori, paras. 22–5.
105
The Court silently dropped the ‘useful effect argument’ as it would have worked towards
the opposite conclusion.
106
On this point, see R. Schütze,‘The Morphology of Legislative Power in the European
Community: Legal Instruments and the Federal Division of Powers’ (2006) 25YEL 91.
107
See Case C-201/02, The Queen v. Secretary of State for Transport, Local Government and the
Regions, ex p.Wells [2004] ECR I-723, para. 56:‘the principle of legal certainty prevents
directives from creating obligations for individuals’.
108
The publication of directives is now, in principle, required by Art. 297 TFEU.
109
For an excellent overview of the principal arguments, see P. Craig,‘The Legal Effect of
Directives: Policy, Rules and Exceptions’ (2009) 34 EL Rev. 349. But why does Professor
Craig concentrate on arguments one and four, instead of paying close attention to the
strongest of the Court’s reasons in the form of argument two?
Constitutional Foundations100
bb. The Limitation to the Rule: The Wide Definition of State (Actions)
One way to minimise the no-horizontal-direct-effect rule is to maximise the
vertical direct effect of directives.The Court has done this by giving extremely
extensive definitions to what constitutes the ‘State’, and what constitute ‘public
actions’.
What public authorities count as the ‘State’? A minimal definition restricts
the concept to a State’s central organs. Because they failed to implement the
directive, the estoppel argument suggested them to be vertically bound by the
directive.Yet the Court has never accepted this consequence, and has endorsed a
maximal definition of the State.It thus held that directly effective obligations‘are
binding upon all authorities of the Member States’; and this included ‘all organs of
the administration, including decentralised authorities, such as municipalities’,110
even ‘constitutionally independent’ authorities.111
The best formulation of this maximalist approach was given in Foster.112
Was
the‘British Gas Corporation’– a statutory corporation for developing and maintaining
gas supply – part of the British‘State’?The Court held this to be the case.
Vertical direct effect would apply to any body‘whatever its legal form,which has
been made responsible, pursuant to a measure adopted by the State, for providing
a public service under the control of the State and has for that purpose special powers
beyond those which result from the normal rules applicable in relations between
individuals’.113
This wide definition of the State consequently covers private bodies
endowed with public functions.
This functional definition of the State, however, suggested that only ‘public
acts’, that is: acts adopted in pursuit of a public function, would be covered.Yet
there are situations where the State acts horizontally like a private person: it
might conclude private contracts and employ private personnel. Would these
‘private actions’ be covered by the doctrine of vertical direct effect?
In Marshall, the plaintiff argued that the United Kingdom had not properly
implemented the EqualTreatment Directive.But could an employee of the SouthWest
Hampshire Area Health Authority invoke the direct effect of a directive
against this State authority in this horizontal situation? The British government
argued that direct effect would only apply ‘against a Member State qua public
authority and not against a Member State qua employer’.‘As an employer a State
is no different from a private employer’; and ‘[i]t would not therefore be proper
to put persons employed by the State in a better position than those who are
employed by a private employer’.114
This was an excellent argument, but the
110
Case 103/88, Costanzo SpA v. Comune di Milano [1989] ECR 1839, para. 31 (emphasis
added).
111
Case 222/84, Johnston v. Chief Constable of the Royal Ulster Constabulary [1986] ECR 1651,
para. 49.
112
Case C-188/89, Foster and others v. British Gas [1990] ECR I-3313.
113
Ibid., para. 20 (emphasis added). For recent confirmations of that test, see Case C-46/15,
Ambisig Ambiente e Sistemas de Informação Geográfica, EU:C:2016:530, para. 22; Case
C-413/15, Farrell, EU:C:2017:745.
114
Case 152/84, Marshall, para. 43.
European Law I 101
Court would have none of it.According to the Court, an individual could rely
on a directive as against the State ‘regardless of the capacity in which the latter is
acting, whether employer or public authority’.115
Vertical direct effect would thus not only apply to private parties exercising
public functions, but also to public authorities engaged in private activities.116
This double extension of the doctrine of vertical direct effect can be criticised
for treating similar situations dissimilarly,for it creates a discriminatory limitation
to the no-horizontal-direct-effect rule. However, the Court has recently confirmed
that both extensions are an integral result of the Foster doctrine.117
cc. The Exception to the Rule: Incidental Horizontal Direct Effect
In the two previous scenarios, the Court respected the rule that directives could
not have direct horizontal effects, but limited the rule’s scope of application.Yet
in some‘incidents’,the Court has found a directive directly to affect the horizontal
relations between private parties.This ‘incidental’ horizontal effect of directives
must, despite some scholastic effort to the contrary,118
be seen as an exception
to the rule.The incidental horizontal direct effect cases indeed violate the rule
that directives cannot negatively affect private parties.The two ‘incidents’ chiefly
responsible for the doctrine of incidental horizontal direct effects here are CIA
Security and Unilever Italia.
In CIA Security v. Signalson and Securitel,119
the Court dealt with a dispute
between three Belgian competitors whose business was the manufacture and sale
of security systems. CIA Security had applied to a commercial court for orders
requiring Signalson and Securitel to cease libel.The defendants had alleged that
the plaintiff’s alarm system did not satisfy Belgian security standards.This was
indeed the case,but the Belgian legislation itself violated a European notification
requirement established by Directive 83/189. But because the European norm
was in a directive,this violation could – theoretically – not be invoked in a horizontal
dispute between private parties. Or could it? The Court held as follows:
115
Ibid., para. 49.
116
Ibid., para. 51:‘The argument submitted by the United Kingdom that the possibility of
relying on provisions of the Directive against the respondent qua organ of the State would
give rise to an arbitrary and unfair distinction between the rights of State employees and
those of private employees does not justify any other conclusion. Such a distinction may
easily be avoided if the Member State concerned has correctly implemented the Directive
in national law.’
117
Case C-413/15, Farrell, where the Court was asked whether the traditional Foster definition
consisted of two cumulative or two alternative criteria; and the Court expressly
clarified that the latter was the case (ibid., esp. para. 33).
118
This phenomenon has been referred to as the:‘incidental’ horizontal effect of directives
(P. Craig and G. de Búrca, EU Law (Oxford University Press, 2011), 207ff.);‘horizontal
side effects of direct effect’ (Prechal, Directives in EC Law (n. 97 above), 261–70); and the
‘disguised’ vertical effect of directives (M. Dougan,‘The “Disguised”Vertical Direct Effect
of Directives’ (2000) 59 Cambridge Law Journal 586–612).
119
Case C-194/94, CIA Security v. Signalson and Securitel [1996] ECR I-2201.
Constitutional Foundations102
Articles 8 and 9 of Directive 83/189 lay down a precise obligation on Member States
to notify draft technical regulations to the Commission before they are adopted.
Being, accordingly, unconditional and sufficiently precise in terms of their content,
those articles may be relied on by individuals before national courts. It remains to
examine the legal consequences to be drawn from a breach by Member States of
their obligation to notify and, more precisely, whether Directive 83/189 is to be interpreted
as meaning that a breach of the obligation to notify, constituting a procedural
defect in the adoption of the technical regulations concerned, renders such technical
regulations inapplicable so that they may not be enforced against individuals …
[I]t is undisputed that the aim of the directive is to protect freedom of movement for
goods by means of preventive control and that the obligation to notify is essential
for achieving such [Union] control. The effectiveness of [Union] control will be that
much greater if the directive is interpreted as meaning that breach of the obligation
to notify constitutes a substantial procedural defect such as to render the technical
regulations in question inapplicable to individuals.120
CIA Security could thus rely on the directive as against its private competitors;
and the national court had to ‘decline to apply a national technical regulation
which has not been notified in accordance with the directive’.121
What else
was this but horizontal direct effect?
This – puzzling – result was confirmed in Unilever Italia v. Central Food.122
Unilever had supplied Central Food with olive oil that did not conform to
Italian labelling legislation, and Central Food therefore refused to honour the
sales contract between the two companies. Unilever, in turn, brought proceedings
claiming that the Italian legislation violated Directive 83/189.The case was
referred to the European Court of Justice, where the Italian and Danish governments
intervened. Both governments protested that it was ‘clear from settled
case-law of the Court that a directive cannot of itself impose obligations on
individuals and cannot therefore be relied on as such against them’.123
But the
Court’s – strange – answer was again this:
120
Ibid., paras. 44–8 (emphasis added). 121
Ibid., para. 55.
122
Case C-443/98, Unilever Italia v. Central Food [2000] ECR I-7535.
123
Ibid., para. 35. 124
Ibid., paras. 50–1 (emphasis added).
Whilst it is true, as observed by the Italian and Danish Governments, that a directive
cannot of itself impose obligations on an individual and cannot therefore be relied
on as such against an individual, that case-law does not apply where non-compliance
with Article 8 or Article 9 of Directive 83/189, which constitutes a substantial procedural
defect, renders a technical regulation adopted in breach of either of those
articles inapplicable. In such circumstances, and unlike the case of non-transposition
of directives with which the case-law cited by those two Governments is concerned,
Directive 83/189 does not in any way define the substantive scope of the legal rule on
the basis of which the national court must decide the case before it. It creates neither
rights nor obligations for individuals.124
European Law I 103
What did this mean? Could a ‘substantial procedural effect’ lead to the horizontal
direct effect of the directive? Let us stick to hard facts. In both cases,
the national court was required to disapply national legislation in civil proceedings
between private parties. Did CIA Security and Unilever not ‘win’ a right
from the directive to have national legislation disapplied; and did Signalson and
Central Food not ‘lose’ the right to have national law applied? It seems impossible
to deny that the directive did directly affect the rights and obligations of
individuals. Even if it was addressed to the States by imposing a procedural obligation
on them, it incidentally obliged private parties to accept forfeiting their
national rights.
However, the exception to the no-horizontal-direct-effect rule has remained
an exceptional exception.125
But, even so, there are – strong – arguments for the
Court to abandon its constitutional rule altogether.126
And as we shall see in the
Conclusion below, the entire debate surrounding directives might simply be the
result of some linguistic confusion.
b. Indirect Effects through National and (Primary) European Law
aa. The Doctrine of Consistent Interpretation of National Law
Norms may have direct and indirect effects.A provision within a directive lacking
direct effect may still have certain indirect effects in the national legal orders.
The lack of direct effect means exactly that: a directive cannot itself – that is:
directly – be invoked. However, a directive may still have indirect effects on the
interpretation of national law. For the European Court has created a general
duty on national courts (and administrations)127
to interpret national law as far as
possible in light of all European law.
125
It may, at first sight, seem that the Court has broadened this exception to a second context
in Case C-377/14, Radlinger and Radlingerová v. Finway, EU:C:2016:283. In this case,
the plaintiff(s) had concluded an (unfair) credit agreement that the defendant sought to
enforce. This credit agreement seemed to violate various EU consumer law directives;
yet the national court had not investigated these, as there existed national legislation that
did not permit a court to examine of its own motion the unfairness of contractual terms
in this context.The Court of Justice found that this national rule itself violated the EU
directives at issue (ibid., paras. 54 and 66); but did this mean that the EU directives would
need to be horizontally applied between the parties? The Court eschewed the answer.
While invoking the CIA/Unilever idea that this was a situation in which ‘a procedural
rule [was] placed not on an individual but on the courts’ (ibid., para. 77), it nevertheless
left open whether the obligation to apply the EU directives ex officio would have direct or
only indirect effects on individuals (ibid., paras. 79–80).
126
See Opinion of Advocate General Jacobs in Case C-316/93, Vaneetveld v. Le Foyer [1994]
ECR I-763,para.31:‘[I]t might well be conducive to greater legal certainty,and to a more
coherent system, if the provisions of a directive were held in appropriate circumstances
to be directly enforceable against individuals’; Craig,‘Legal Effect of Directives’ (n. 109
above), 390:‘The rationales for the core rule that Directives do not have horizontal direct
effect based on the Treaty text, legal certainty and the Regulations/Directives divide are
unconvincing.’
127
Case C-218/01, Henkel v. Deutsches Patent- und Markenamt [2004] ECR I-1725.
Constitutional Foundations104
The doctrine of consistent interpretation was given an elaborate definition
in Von Colson:
[T]he Member States’ obligation arising from a Directive to achieve the result envisaged
by the Directive and their duty under Article [4(3) TEU] to take all appropriate
measures, whether general or particular, to ensure the fulfilment of that obligation,
is binding on all the authorities of Member States including, for matters within their
jurisdiction, the courts. It follows that, in applying the national law in particular the
provisions of a national law specifically introduced in order to implement [a Directive],
national courts are required to interpret their national law in the light of the wording
and the purpose of the Directive in order to achieve the result referred to in the third
paragraph of Article [288].128
The duty of consistent interpretation is a duty to implement a directive by
indirect means. Where a national legislator has failed to directly implement a
directive, the task is (partly) transferred to the national judiciary. National courts
are here under an obligation to ‘implement’ the directive judicially through a
‘European’ interpretation of national law. Temporally, the duty of consistent
interpretation however only starts applying after the implementation period of
the directive has passed.129
This duty of consistent interpretation applies regardless of ‘whether the
[national] provisions in question were adopted before or after the directive’.130
The
duty indeed extends to all national law – irrespective of whether the latter was
intended to implement the directive. However, where domestic law had been
specifically enacted to implement the directive, the national courts must operate
under the particularly strong presumption ‘that the Member State, following its
exercise of the discretion afforded to it under that provision,had the intention of
fulfilling entirely the obligations arising from the directive’.131
128
Case 14/83, Von Colson and Elisabeth Kamann v. Land Nordrhein-Westfalen [1984] ECR
1891, para. 26. Because this paragraph was so important in defining the duty of consistent
interpretation, it is sometimes referred to as the ‘Von Colson principle’.
129
National courts are not required to interpret their national law in light of Union law before
(!) the expiry of the implementation deadline. After Case C-212/04, Adeneler and others
v. Ellinikos Organismos Galaktos (ELOG) [2006] ECR I-6057, there is no room for speculation
on this issue: ‘[W]here a directive is transposed belatedly, the general obligation
owed by national courts to interpret domestic law in conformity with the directive exists
only once the period for its transposition has expired’ (ibid., para. 115). However, once a
directive has been adopted, a Member State will be under the immediate constitutional
obligation to ‘refrain from taking any measures liable seriously to compromise the result
prescribed’ in the directive, see C-129/96, Inter-Environnement Wallonie ASBL v. Region
Wallonne [1997] ECR 7411, para. 45.This obligation is independent of the doctrine of
indirect effect.
130
Case C-106/89, Marleasing v. La Comercial Internacional de Alimentacion [1990] ECR
I-4135, para. 8 (emphasis added).
131
Joined Cases C-397/01 to C-403/01, Pfeiffer, para. 112. For a more recent confirmation
of this rule, see Case C-306/12, Spedition Welter, EU:C:2013:650, esp. para. 32: ‘[I]n
European Law I 105
The duty of consistent interpretation leads to the indirect implementation of
a directive. It can indirectly impose new obligations – both vertically and horizontally.An
illustration of the horizontal indirect effect of directives can be seen
in Webb.132
The case concerned a claim by Mrs Webb against her employer.The
latter had hired the plaintiff to replace a pregnant co-worker during her maternity
leave.Two weeks after she had started work, Mrs Webb discovered that she
was pregnant herself, and was dismissed for that reason. She brought proceedings
before the Industrial Tribunal, pleading sex discrimination.The Industrial
Tribunal rejected this on the grounds that the reason for her dismissal had not
been her sex but her inability to fulfil the primary task for which she had been
recruited.The case went on appeal to the (then) House of Lords, which confirmed
the interpretation of national law but nonetheless harboured doubts
about Britain’s European obligations under the Equal Treatment Directive. On
a preliminary reference, the European Court indeed found that there was sex
discrimination under the directive and that the fact that Mrs Webb had been
employed to replace another employee was irrelevant.133
On receipt of the preliminary
ruling, the House of Lords was thus required to change its previous
interpretation of national law. MrsWebb won a right, while her employer lost the
right to dismiss her.
The doctrine of indirect effect here changed the horizontal relations between
two private parties; and the duty of consistent interpretation has consequently
been said to amount to ‘de facto (horizontal) direct effect of the directive’.134
Normatively, this horizontal effect is however an indirect effect, as it operates
through the medium of national law.
Are there limits to the duty of consistent interpretation? The duty is very
demanding: national courts are required to interpret their national law ‘as far as
possible, in the light of the wording and the purpose of the [Union act]’.135
But
what will ‘as far as possible’ mean? Should national courts be required to behave
as if they were the national legislature? This might seriously undermine the
(relatively) passive place reserved for judiciaries in most national constitutional
orders.And the European legal order has therefore only asked national courts to
adjust the interpretation of national law ‘in so far as it is given discretion to do
so under national law’.136
The European Court thus accepts that there exist established judicial methodologies
within the Member States and has permitted national courts to limit
themselves to ‘the application of interpretative methods recognised by national
circumstances such as those of the case in the main proceedings,where national legislation
reproduced word for word the provisions of Article 21(5) of the directive, the referring
court is required, taking the whole body of domestic law into consideration and applying
the interpretative methods recognised by domestic law, to interpret national law in a way
that is compatible with the interpretation given to the directive by the Court.’
132
Case C-32/93, Webb v. EMO Air Cargo [1994] ECR I-3567.
133
Ibid., paras. 26–8. 134
Prechal, Directives in EC Law (n. 97 above), 211.
135
Case C-106/89, Marleasing, para. 8 (emphasis added).
136
Case C-14/83, Von Colson, para. 28 (emphasis added).
Constitutional Foundations106
law’.137
National courts are thus not obliged to ‘invent’ or ‘import’ novel interpretative
methods.138
However,within the discretion given to the judiciary under
national constitutional law, the European doctrine of consistent interpretation
requires the referring court ‘to do whatever lies within its jurisdiction, having
regard to the whole body of rules of national law’.139
Are there also European constitutional limits to the duty of the Unionconform
interpretation of national law? The Court has clarified that the duty
of consistent interpretation ‘is limited by the general principles of law which
form part of [European] law and in particular the principles of legal certainty
and non-retroactivity’.140
But, more importantly, the Court recognises that the
clear and unambiguous wording of a national provision constitutes an absolute
limit to its interpretation.141
National courts are thus not required to interpret
national law contra legem.142
(This will however not protect ‘established case-law’
if the wording allows for an alternative interpretation.)143
The duty of consistent
interpretation would thus find a boundary in the clear wording of a provision.
National courts are only required to interpret the text – and not to amend it!
Textual amendments continue to be the task of the national legislatures – and
not the national judiciaries.
bb. Indirect Effects through the Medium of European Law
The European Court has built an alternative – second – avenue to promote the
indirect effect of directives. Instead of mediating their effect through national
137
Joined Cases C-397–403/01, Pfeiffer, para. 116 (emphasis added).
138
See M.Klammert,‘Judicial Implementation of Directives and Anticipatory Indirect Effect:
Connecting the Dots’ (2006) 43 CML Rev. 1251 at 1259. For the opposite view, see
Prechal, Directives in EC Law (n. 97 above), 213.
139
Joined Cases C-397–403/01, Pfeffer, para. 118.
140
Case 80/86, Kolpinghuis [1987] ECR 3969, para. 13.This has been taken to imply that a
Union-conform interpretation must not aggravate the criminal liability of a private party,
as criminal law is subject to particularly strict rules of interpretation. For a general discussion
here, see S. Drake,‘TwentyYears after Von Colson:The Impact of “Indirect Effect” on
the Protection of the Individual’s Community Rights’ (2005) 30 EL Rev. 329.
141
Case C-555/07, Kücükdeveci v. Swedex [2010] ECR I-365, para. 49. See now also Case
C-176/12, Association de Médiation sociale, EU: C: 2014: 2, 39.
142
Case C-212/04, Adeneler [2006] ECR I-5057, para. 110:‘It is true that the obligation on
a national court to refer to the content of a directive when interpreting and applying
the relevant rules of domestic law is limited by general principles of law, particularly
those of legal certainty and non-retroactivity, and that obligation cannot serve as the basis
for an interpretation of national law contra legem.’ For a more recent case here, see: Case
C-282/10, Dominguez, EU:C:2012:33.
143
Case C-441/14,DI v.Estate of Rasmussen,EU:C:2016:278,paras.33–4:‘[T]he requirement
to interpret national law in conformity with EU law entails the obligation for national
courts to change its established case-law,where necessary,if it is based on an interpretation
of national law that is incompatible with the objectives of a directive. Accordingly, the
national court cannot validly claim in the main proceedings that it is impossible for it to
interpret the national provision at issue in a manner that is consistent with EU law by
mere reason of the fact that it has consistently interpreted that provision in a manner that
is incompatible with EU law.’
European Law I 107
law, it indirectly translates their content into European law. How so? The way
the Court has achieved this has been to capitalise on the general principles of
European law. For the latter may – as primary Union law – have horizontal
direct effect.144
This new avenue was opened in Mangold.145
The case concerned the German
law on Part-Time Working and Fixed-Term Contracts.The national employment
law, transposing a European directive on the subject, permitted fixed-term
employment contracts if the worker had reached the age of 52. However, the
German law seemed to violate a second directive: Directive 2000/78 establishing
a general framework for equal treatment in employment and occupation
adopted to combat discrimination in the workplace.According to Article 6(1) of
the directive, Member States could provide for differences in the workplace on
grounds of age only if ‘they are objectively and reasonably justified by a legitimate
aim,including legitimate employment policy,labour market and vocational
training objectives, and if the means of achieving that aim are appropriate and
necessary’. In the present case, a German law firm had hired Mr Mangold, then
aged 56, on a fixed-term employment contract. A few weeks after commencing
employment, Mangold brought proceedings against his employer before the
Munich Industrial Tribunal, where he claimed that the German law violated
Directive 2000/78, as a disproportionate discrimination on grounds of age.
The argument was not only problematic because it was raised in civil proceedings
between two private parties, which seemed to exclude the horizontal direct
effect of Article 6(1). More importantly, since the implementation period of
Directive 2000/78 had not yet expired, even the horizontal indirect effect of the
directive could not be achieved through a ‘Europe-consistent’ interpretation of
national law.Yet having found that the national law indeed violated the substance
of the directive,146
the Court was out to create a new way to review the legality
of the German law.Instead of using the directive as such – directly or indirectly –
it found a general principle of European constitutional law that stood behind the
directive.That principle was the principle of non-discrimination on grounds of
age.And it was that general principle that would bind the Member States when
implementing European law.147
From there, the Court reasoned as follows:
144
On the normative quality of primary Union law, see section 1 above.
145
Case C-144/04, Mangold v. Helm [2005] ECR I-9981.
146
Ibid., para. 65.
147
On the so-called ‘implementation situation’, see Chapter 12, section 4(a).
Consequently, observance of the general principle of equal treatment, in particular
in respect of age, cannot as such be conditional upon the expiry of the period
allowed the Member States for the transposition of a directive intended to lay down
a general framework for combating discrimination on the grounds of age … In those
circumstances it is the responsibility of the national court, hearing a dispute involving
the principle of non-discrimination in respect of age, to provide, in a case within its
Constitutional Foundations108
jurisdiction, the legal protection which individuals derive from the rules of [European]
law and to ensure that those rules are fully effective, setting aside any provision of
national law which may conflict with that law. Having regard to all the foregoing,
the reply to be given to the [national court] must be that [European] law and, more
particularly, Article 6(1) of Directive 2000/78, must be interpreted as precluding a
provision of domestic law such as that at issue in the main proceedings which authorises,
without restriction, unless there is a close connection with an earlier contract of
employment of indefinite duration concluded with the same employer, the conclusion
of fixed-term contracts of employment once the worker has reached the age of 52.148
This judgment has been – very – controversial. But it is less the individual
components than their combination and context that was contentious. Past
precedents had indeed established that the Union’s (unwritten) general principles
might dynamically derive from the constitutional traditions of the Member
States.149
And the Court had previously found that provisions in a directive could
be backed up by such a general principle.150
It was also undisputed that general
principles could apply to the Member States implementing European law and
thereby have direct effect.151
However, to use all elements in this context was
potentially explosive. If this technique were generalised, the limitations inherent
in the directive as an instrument of secondary law could be outflanked. The
generalised use of primary law as the medium for secondary law was dangerous
‘since the subsidiary applicability of the principles not only gives rise to a lack
of legal certainty but also distorts the nature of the system of sources, converting
typical [Union] acts into merely decorative rules which may be easily replaced
by the general principles’.152
Put succinctly: if a special directive is adopted to
make a general principle sufficiently precise, how can the latter have direct effect
while the former has not?
Yet to the chagrin of some,153
the Mangold ruling was confirmed and consolidated
in Kücükdeveci.154
This time, Germany was said to have violated Directive
148
Case C-144/04, Mangold, paras. 76–8 (emphasis added).
149
On this point, see Chapter 12, section 1(a). In the present case the ‘genesis’ of a general
principle prohibiting age discrimination was indeed controversial. Apparently, only two
national constitutions recognised such a principle (see Advocate General Mazák in Case
C-411/05, Palacios de laVilla [2007] ECR I-8531).
150
See Case 222/84, Johnston v. Chief Constable, para. 18:‘The requirement of judicial control
stipulated by that article [of the directive] reflects a general principle of law which underlies
the constitutional traditions common to the Member States.’
151
In the present case, the actual conclusion was nonetheless controversial (see M. Dougan,
‘In Defence of Mangold?’, in A.Arnull et al. (eds.), A Constitutional Order of States? Essays
in EU Law in Honour of Alan Dashwood (Hart, 2011), 219).
152
Joined Cases C-55-07 and C-56/07, Michaeler et al. v. Amt für sozialen Arbeitsschutz Bozen
[2008] ECR I-3135, para. 21.
153
For a piece of German angst, consider the decision of the German Constitutional Court
in Honeywell discussed in Chapter 4, section 2(b).
154
Case C-555/07, Kücükdeveci v. Swedex [2010] ECR I-365.
European Law I 109
2000/78 by having discriminated against younger employees.The bone of contention
wasArticle 622 of the German Civil Code,which established various notice
periods depending on the duration of the employment relationship. However,
the provision only started counting the duration after an employee had turned
25.155
After ten years of service to a private company, Ms Kücükdeveci had
been sacked. Having started work at the age of 18, her notice period was thus
calculated on the basis of a three-year period. Believing that this shorter notice
period for young employees was discriminatory, she brought an action before
the Industrial Tribunal. On reference to the Court of Justice, that Court found
the German law to violate the directive.156
And since the implementation period
for Directive 2000/78 had now expired, there was no temporal limit to establishing
the indirect effect of the directive through national law.
But the indirect effect of the directive via the medium of national law now
encountered an – insurmountable – normative limit. Because of its clarity and
precision, the German legal provision was ‘not open to an interpretation in conformity
with Directive 2000/78’.157
The indirect effect of the directive could
thus not be established via the medium of national law, and the Court chose
once more a general principle of European law as the medium for the content of
the directive.The Court thus held that it was ‘the general principle of European
Union law prohibiting all discrimination on grounds of age, as given expression
in Directive 2000/78, which must be the basis of the examination of whether
European Union law precludes national legislation such as that at issue in the
main proceedings’.158
And where this general principle had been violated, it was
the obligation of the national court to disapply any provision of national legislation
contrary to that principle – regardless of whether private or public parties
are involved.159
Yet, crucially, the Court remained ambivalent about whether
the general principle was violated because the directive had been violated.160
The better view would here be that this is not the case. From a constitutional
155
The last sentence of Art. 622(2) of the German Civil Code states: ‘In calculating the
length of employment,periods prior to the completion of the employee’s 25th year of age
are not taken into account.’
156
Case C-555/07, Kücükdeveci, para. 43.
157
Ibid., para. 49.
158
Ibid., para. 27 (emphasis added), see also para. 50.The Court has subsequently clarified
that for any general principle to have direct effect in a particular situation,‘that situation
must also fall within the scope of the prohibition of discrimination laid down by Directive
2000/78’ (see Case C-441/14, DI v. Estate of Rasmussen, EU:C:2016:278), para. 24).The
general principle thus must always be ‘mediated’.
159
Case C-555/07, Kücükdeveci, para. 51; Case C-441/14, DI, para. 36.
160
In ibid., para. 43, the Court found that ‘European Union law, more particularly the principle
of non-discrimination on grounds of age as given expression by Directive 2000/78,
must be interpreted as precluding national legislation, such as that at issue in the main
proceedings’. But did this mean that the directive and the general principle were violated?
In a later paragraph, the Court seems to leave the question to the national courts
‘to ensure the full effectiveness of that law, disapplying if need be any provision of national
legislation contrary to that principle’ (para. 51, emphasis added).
Constitutional Foundations110
perspective, the threshold for the violation of a general principle ought to be
higher than that for a specific directive.161
4. External Union Law: International Agreements
In the ‘globalised’ world of the twenty-first century, international agreements
have become important regulatory instruments. Instead of acting unilaterally,
many States realise that the regulation of international trade or the environment
requires a multilateral approach.And to facilitate international regulation, many
legal orders have ‘opened up’ to international law and adopted a monist position.The
European legal order has traditionally followed this monist approach.
With regard to international agreements concluded by the Union,Article 216(2)
TFEU states:
Figure 3.4 Indirect Effect in Proceedings Between Private Parties (PP)
DORI VON COLSON MANGOLD
DIRECTIVE
Directives cannot
have direct
horizontal
effect
Directives can
have indirect
horizontal effect
through national law
Directives can
have indirect
horizontal effect
through EU primary law
DIRECTIVE DIRECTIVE
PP PP
National
Law
EU General
Principle
Agreements concluded by the Union are binding upon the institutions of the Union
and on its Member States.162
161
The Court seems indeed to be moving in this direction, see Case C-147/08, Römer v.
Freie und Hansestadt Hamburg [2011] ECR I-3591;Case C-176/12,Association de médiation
sociale v. Union locale des syndicats CGT and others, EU: C: 2014: 2.
162
Emphasis added.
This definition suggested two things. First, international agreements were
binding in the European legal order.And, indeed, the Court has expressly confirmed
that international agreements ‘form an integral part of the [European]
legal system’ from the date of their entry into force without the need for
European Law I 111
legislative acts of ‘incorporation’.163
Union agreements were external Union
law. Second, these international agreements would also bind the Member
States. And the Court here again favoured a monist philosophy. In treating
international agreements as acts of the European institutions,164
they would be
regarded as European law; and as European law, they would be directly applicable
‘in’ the Member States. And, as directly applicable sources of European
law, international agreements have the capacity to contain directly effective
provisions that national courts must apply. When would such direct effects
arise?
a. The Conditions of Direct Effect
Even in a monist legal order, not all international treaties will be directly effec-
tive.165
The direct applicability of international agreements only makes them
capable of having direct effects. Particular treaties may lack direct effect for
‘when the terms of the stipulation import a contract, when either of the parties
engages to perform a particular act,the treaty addresses itself to the political,not
to the judicial department; and the legislature must execute the contract before
it can become a rule for the Court’.166
Where an international agreement asks
for the adoption of implementing legislation it is indeed addressed to the legislative
branch, and its norms will not be operational for the executive or the
judiciary.
The question whether a Union agreement has direct effect has – again – been
centralised by the European Court of Justice.The Court has justified this ‘centralisation’
by reference to the need to ensure legal uniformity in the European
legal order.The effects of Union agreements may not be allowed to vary‘according
to the effects in the internal legal order of each Member State which the law
of that State assigns to international agreements’.167
Once an agreement has thus
been considered by the Court to unfold direct effects,it will be directly effective
in the European as well as the national legal orders.
When will an international treaty have direct effects? The Court has devised
a two-stage test.168
In a first stage, it examines whether the agreement as a whole
is capable of containing directly effective provisions.The signatory parties to the
agreement may have positively settled this issue themselves.169
If this is not the
case, the Court will employ a ‘policy test’ that analyses the nature, purpose, spirit
163
Case 181/73, Haegemann v. Belgium [1974] ECR 449.
164
Case C-192/89, Sevince v. Staatssecretaris van Justitie [1990] ECR I-3461, para. 10.
165
C. M.Vazquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial
Enforcement of Treaties’ (2008) 122 Harvard Law Review 599.
166
Foster v. Neilson, 27 US (2 Pet.) 253 at 314 (1829).
167
Case 104/81, Hauptzollamt Mainz v. Kupferberg & Cie [1982] ECR 3641, para. 14.
168
For an excellent analysis, see A. Peters, ‘The Position of International Law within the
European Community Legal Order’ (1997) 40 GermanYearbook of International Law 9–77
at 53–4 and 58–66.
169
Case 104/81, Kupferberg, para. 17.
Constitutional Foundations112
or general scheme of the agreement.170
This evaluation is inherently ‘political’,
and the first part of the analysis is essentially a‘political question’.The conditions
for the direct effect of external Union law here differ from the analysis of direct
effect in the internal sphere,as internal law is automatically presumed to be capable
of direct effect.
Where the ‘political question’ hurdle has been crossed, the Court will turn
to examining the direct effect of a specific provision of the agreement.171
The
second stage of the test constitutes a classic direct effect analysis. Individual provisions
must represent a ‘clear and precise obligation which is not subject, in its
implementation or effects,to the adoption of any subsequent measures’.172
While
the second stage of the test is thus identical to that for internal legislation, the
actual results can vary. Identically worded provisions in internal and external
legislation may not necessarily be given the same effect.173
In the past, the European Courts have generally been ‘favourably disposed’
towards the direct effect of Union agreements, and thus created an atmosphere
of ‘general receptiveness’ to international law.174
The classic exception to this
constitutional rule is the WTO agreement.175
The Union is a member of the
WorldTrade Organization, and as such formally bound by its constituent agreements.Yet
the Union Courts have persistently denied that agreement a safe passage
through the first part of the direct effect test. The most famous judicial
ruling in this respect is Germany v.Council (Bananas);176
yet,it was a later decision
that clarified the constitutional rationale for the refusal to grant direct effect. In
Portugal v. Council, the Court found it crucial to note that:
170
See Joined Cases 21–24/72, International Fruit Company NV and others v. Produktschap voor
Groenten en Fruit [1972] ECR 1219, para. 20; Case C-280/93, Germany v. Council [1993]
ECR I-4973, para. 105.
171
The two prongs of the test can be clearly seen in Case 104/81,Kupferberg.In paras.18–22,
the Court undertook the global policy test, while in paras. 23–7 it looked at the conditions
for direct effectiveness of a specific provision.
172
Case 12/86, Demirel v. Stadt Schwäbisch Gmünd [1987] ECR 3719, para. 14.
173
J. H. J.Bourgeois,‘Effects of International Agreements in European Community Law:Are
the Dice Cast?’(1983–4) 82 Michigan Law Review 1250–73 at 1261.See also the discussion
on the pre-emptive effect of international treaties in Chapter 4, section 4(a/cc).
174
P. Eeckhout, External Relations of the European Union (Oxford University Press, 2004), 301.
This however appears to be in a process of change. On this development especially with
regard to free trade agreements, see the excellent analysis by A. Semertzi,‘The Preclusion
of Direct Effect in the Recently Concluded EU FreeTrade Agreements’ (2014) 51 CML
Rev. 1125.
175
P. Eeckhout,‘The Domestic Legal Status of the WTO Agreement: Interconnecting Legal
System’ (1997) 34 CML Rev. 11.
176
Case C-280/93, Germany v. Council [1994] ECR I-4973.
Some of the contracting parties, which are among the most important commercial
partners of the [Union], have concluded from the subject-matter and purpose of the
WTO agreements that they are not among the rules applicable by their judicial organs
European Law I 113
when reviewing the legality of their rules of domestic law. Admittedly, the fact that
the courts of one of the parties consider that some of the provisions of the agreement
concluded by the [Union] are of direct application whereas the courts of the other
party do not recognise such direct application is not in itself such as to constitute a
lack of reciprocity in the implementation of the agreement …
However, the lack of reciprocity in that regard on the part of the [Union’s] trading
partners, in relation to the WTO agreements which are based on reciprocal and
mutually advantageous arrangements and which must ipso facto be distinguished
from agreements concluded by the [Union] … may lead to disuniform application of
the WTO rules. To accept that the role of ensuring that [European] law complies with
those rules devolves directly on the [Union] judicature would deprive the legislative or
executive organs of the [Union] of the scope for manoeuvre enjoyed by their counterparts
in the [Union’s] trading partners.177
In light of the economic consequences of a finding of direct effect, the granting
of such an effect to theWTO agreement was too political a question for the
Court to decide. Not only was the agreement too ‘political’ in that it contained
few hard-and-fast legal rules,178
a unilateral decision to grant direct effect within
the European legal order would have disadvantaged the Union vis-à-vis trading
partners that had refused to allow for the agreement’s enforceability in their
domestic courts.The judicial self-restraint thus acknowledged that the constitutional
prerogative for external relations lay primarily with the executive branch.
Surprisingly, the Court’s cautious approach to the WTO agreements, and their
progeny,179
has recently been extended into a second field.180
And it seems likely
that this less receptive approach will also apply to agreements concluded within
the Union’s Common Foreign and Security Policy. In light of the latter’s spec-
ificity,181
the Court might well find that the ‘nature and broad logic’ of CFSP
agreements prevent their having direct effects within the Union legal order.
177
Case C-149/96, Portuguese Republic v. Council of the European Union [1999] ECR I-8395,
paras. 43–6 (emphasis added).
178
For the GATT Agreement, see Joined Cases 21–24/72, International Fruit Company, para.
21:‘This agreement which, according to its preamble, is based on the principle of negotiations
undertaken on the basis of “reciprocal and mutually advantageous arrangements”
is characterised by the great flexibility of its provisions[.]’
179
For the lack of direct effect ofWTO rulings in the Union legal order,see Case C-377/02,
Van Parys [2005] ECR I-1465. On the relationship between the European Courts and
decisions by international tribunals, see M. Bronckers, ‘The Relationship of the EC
Courts with Other International Tribunals: Non-committal, Respectful or Submissive?’
(2007) 44 CML Rev. 601.
180
The Court dealt with the United Nations Convention on the Law of the Sea (UNCLOS),
in Case C-308/06, Intertanko et al. v. Secretary of State forTransport [2008] ECR I-4057 and
found (paras.64–5):‘[I]t must be found that UNCLOS does not establish rules intended to
apply directly and immediately to individuals and to confer upon them rights or freedoms
capable of being relied upon against States, irrespective of the attitude of the ship’s flag
State. It follows that the nature and the broad logic of UNCLOS prevent the Court from
being able to assess the validity of a [Union] measure in the light of that Convention.’
181
On this point, see Chapter 8, sections 2(a) and 3(a).
Constitutional Foundations114
b. The Dimensions of Direct Effect
What are the dimensions of direct effect for the Union’s international agreements?
Will a directly effective Union agreement be vertically and horizontally
directly effective?182
Two constitutional options exist. First, international treaties can have horizontal
direct effects.Then international agreements would come close to being
‘external regulations’. Alternatively, the Union legal order could treat international
agreements as ‘external directives’ and limit their direct effect to the
vertical dimension. European citizens could then only invoke a directly effective
provision of a Union agreement against the European institutions and the
Member States, but they could not rely on a Union agreement in a private
situation.
The Court has not expressly decided which option to follow.Yet, in Polydor v.
Harlequin it seemed tacitly to assume the possibility of a horizontal direct effect
of international agreements.183
Doubts remained.184
Yet the Court did not dispel
them in Sevince.185
However, the acceptance of the horizontal direct effect thesis
has gained ground.In Deutscher Handballbund eV v.Kolpak,186
the Court was asked
whether rules drawn up by the German Handball Federation – a private club –
would be discriminatory on grounds of nationality.The sports club had refused
to grant Kolpak – a Slovakian national – the same rights as German players.This
seemed to violate Article 38 of the Association Agreement between the Union
and Slovakia stipulating that ‘workers of Slovak Republic nationality legally
employed in the territory of a Member State shall be free from any discrimination
based on nationality, as regards working conditions, remuneration or dismissal,
as compared to its own nationals’.The question, therefore, arose whether
182
For a good new look at this question, see S. Gáspár-Szilágyi, ‘The “Horizontal Direct
Effect” of EU International Agreements: Is the Court Avoiding a Clear Answer?’ (2015)
42 Legal Issues of Economic Integration 93.The following section will not explore the special
constitutional principles governing the indirect effect of international agreements within
the Union legal order. For a brief overview here, see R. Schütze, ‘Direct and Indirect
Effects of Union Law’, in R. Schütze and T.Tridimas (eds.), Oxford Principles of European
Union Law –Volume I (Oxford University Press, 2018), 265 at 296ff.
183
Case 270/80, Polydor and others v. Harlequin and others [1982] ECR 329.
184
These doubts inevitably gave rise to a good degree of academic speculation. In 1985,
the following questions were put to H. J. Glaesner, the then Director General of the
Legal Service of the Council, by the House of Lords Select Committee on the European
Communities:‘You are well acquainted with the direct effect doctrine of internal provisions
of theTreaty of Rome.As regards external provisions,[European] case law only supports
direct effects which can be invoked against Member States.Is there any likelihood of
it being extended to relations between private individuals …?’‘Would the distinction be
likely to be that the Court would be more ready to grant an individual’s right arising out
of an external treaty … but would they hesitate to impose obligations on individuals arising
out of those external treaties?’The Director-General could only answer:‘That is my
feeling;it is not a philosophical consideration but a feeling of mine’(see Select Committee
on the European Communities,External Competence of the European Communities [1984–5]
Sixteenth Report (HMSO, 1985), 154 (emphasis added)).
185
Case C-192/89, Sevince.
186
Case C-438/00, Deutscher Handballbund eV v. Maros Kolpak [2003] ECR I-4135.
European Law I 115
this article had ‘effects vis-à-vis third parties inasmuch as it does not apply solely to
measures taken by the authorities but also extends to rules applying to employees that are
collective in nature’.187
The Court thought that this could indeed be the case.188
And in allowing the rules to apply directly to private parties,the Court presumed
that the international agreement would be horizontally directly effective.
This implicit recognition of the horizontal direct effect of Union agreements
has been confirmed outside the context of association agreements.189
And in
the absence of any mandatory constitutional reason to the contrary, this choice
seems preferable. Like US constitutionalism, the European legal order should
not exclude the horizontal direct effect of international treaties.The problems
encountered in the context of European directives would be reproduced – if not
multiplied – if the European Court were to split the direct effect of international
treaties into two halves. Self-executing treaties should thus be able ‘to establish
rights and duties of individuals directly enforceable in domestic courts’.190
Conclusion
For a norm to be a legal norm it must be enforceable.191
The very questioning of
the direct effect of European law was indeed an ‘infant disease’ of a young legal
order.192
‘But now that [European] law has reached maturity, direct effect should
be taken for granted,as a normal incident of an advanced constitutional order.’193
The evolution of the doctrine of direct effect,discussed in this chapter,indeed
mirrors this maturation.Today’s test for the direct effect of European law is an
extremely lenient test. A provision has direct effect, where it is ‘unconditional’
and thus ‘sufficiently clear and precise’ – two conditions that probe whether a
norm can (or should) be applied in court or whether it first needs legislative
concretisation.All sources of European law have been considered to be capable
of producing law with direct effects.And this direct effect normally applies vertically
as well as horizontally.
The partial exception to this rule is the ‘directive’. For directives, the Union
legal order prefers their indirect effects.194
‘[W]herever a directive is correctly
187
Ibid., para. 19 (emphasis added).
188
Ibid., paras. 32 and 37.
189
See Case C-265/03, Simutenkov v. Ministerio de Educacion y Cultura and Real Federacion
Espanola de Futbol [2005] ECR I-2579,where the Court confirmed Deutscher Handballbund
in the context of the Partnership and Cooperation Agreement between the EC and the
Russian Federation.
190
S. A. Riesenfeld, ‘International Agreements’ (1989) 14 Yale Journal of International Law
455–67 at 463 (emphasis added).
191
On the difference between (merely) ‘moral’ and (enforceable) ‘legal’ norms, see H. L. A.
Hart, The Concept of Law (Clarendon Press, 1997).
192
Pescatore,‘Doctrine of “Direct Effect”’ (n. 45 above).
193
A. Dashwood, ‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to
Absurdity’ (2006–7) 9 CYELS 81.
194
Case 80/86,Kolpinghuis,para.15:‘The question whether the provisions of a directive may
be relied upon as such before a national court arises only if the Member State concerned
Constitutional Foundations116
implemented,its effects extend to individuals through the medium of the implementing
measures adopted.’195
The Court even seems to insist on the mediated effect of
directives for those parts of a directive that are directly effective.196
The directive
thus represents a form of ‘background’ or ‘indirect’ European law,197
which is in
permanent symbiosis with national (implementing) legislation.198
But even when directives have direct effect, they generally do not have horizontal
direct effects. Why has the Court shown such ‘childish’ loyalty to the
no-horizontal-direct-effect rule? Has that rule not created more constitutional
problems than it solves? And is the Court perhaps discussing a ‘false problem’?
For if the Court simply wishes to say that an (unimplemented) directive may
never directly prohibit private party actions, this does not mean that it cannot
have horizontal direct effects in civil disputes challenging the legality of State
actions.199
A final point still needs to be raised. Will the – direct or indirect – effects
of European law be confined to the judicial application of European law? This
argument has been made.200
But this narrow view bangs its head against hard
empirical facts.201
It equally raises serious theoretical objections. For why should
the recognition of an ‘administrative direct effect’ represent a ‘constitutional
has not implemented the directive in national law within the prescribed period or has
implemented the directive incorrectly.’
195
Case 8/81, Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53, para. 19 (emphasis
added).
196
Case 102/79, Commission v. Belgium [1980] ECR 1473, para. 12.
197
Case C-298/89, Gibraltar v. Council [1993] ECR I-3605, para. 16 (emphasis added):‘normally
a form of indirect regulatory or legislative measure’.
198
The indirect effect of directives thereby never stops. Directives will always remain in the
background as a form of ‘fallback’ legislation even where the national authorities have
correctly implemented the directive; see Case 62/00, Marks & Spencer plc v. Commissioners
of Customs & Excise [2002] ECR I-6325, paras. 27–8.
199
This – much – simpler reading of the substance of the case law would bring directives
close to the normative character of Art. 107 TFEU – prohibiting State aid. For while the
provision can be invoked as against the State as well as against a private party, it cannot
prohibit private aids by private companies.
200
In this sense,see B.deWitte,‘Direct Effect,Supremacy and the Nature of the Legal Order’,
in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford University Press,
1999), 177 at 193; and B. de Witte,‘Direct Effect, Primacy and the Nature of the Legal
Order’, in P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford University
Press, 2011), 323 at 333.
201
Among the myriad judgments,see Case 103/88,Costanzo SpA v.Comune di Milano [1989]
ECR 1839, para. 31, where the Court found it ‘contradictory to rule that an individual
may rely upon the provisions of a directive which fulfil the conditions defined above in
proceedings before the national courts seeking an order against the administrative authorities,and
yet to hold that those authorities are under no obligation to apply the provisions
of the directive and refrain from applying provisions of national law which conflict with
them. It follows that when the conditions under which the Court has held that individuals
may rely on the provisions of a directive before the national courts are met, all organs
of the administration … are obliged to apply those provisions.’ See also Case C-118/00,
Larsy and Inasti [2001] ECR 5063.
European Law I 117
enormity’?202
In most national legal orders the courts are as subordinate to
national legislation as the executive branch.They may‘interpret’national legislation,
but must not amend it.And, once we accept that European law entitles all
national courts – even the lowest court in the remotest part of the country – to
challenge an act of parliament or the national constitution, is it really such an
enormous step to demand the same of the executive?Would it not be absurd not
to require national administrations to apply European law, but to allow for judicial
challenges of the resulting administrative act?The conclusions of this chapter
indeed extend to the administrative direct effects of European law.
FURTHER READING
Books
J.Bast,Grundbegriffe der Handlungsformen der EU:entwickelt am Beschluss als praxisgenerierter
Handlungsform des Unions- und Gemeinschaftsrechts (Springer, 2006)
J.-V. Louis, Les Règlement de la Communauté économique européenne (Presses universitaires
des Bruxelles, 1969)
M. Mendez, The Legal Effects of EU Agreements (Oxford University Press, 2013)
S. Prechal, Directives in EC Law (Oxford University Press, 2006)
A. Schrauwen and J. Prinssen, Direct Effect: Rethinking a Classic of EC Legal Doctrine
(Europa Law Publishing, 2004)
Articles (and Chapters)
A.von Bogdandy,F.Arndt and J.Bast,‘Legal Instruments in European Union law and
Their Reform:A Systematic Approach on an Empirical Basis’ (2004) 23YEL 91
J. H. J. Bourgeois, ‘Effects of International Agreements in European Community
Law:Are the Dice Cast?’ (1983–4) 82 Michigan Law Review 1250
P. Craig, ‘Once Upon a Time in the West: Direct Effect and the Federalisation of
EEC Law’ (1992) 12 Oxford Journal of Legal Studies 453
A. Dashwood,‘From Van Duyn to Mangold via Marshall: Reducing Direct Effect to
Absurdity’ (2006–7) 9 CYELS 81
M. Dougan, ‘The “Disguised” Vertical Direct Effect of Directives’ (2000) 59
Cambridge Law Journal 586
S. Drake, ‘Twenty Years after Von Colson: The Impact of “Indirect Effect” on the
Protection of the Individual’s Community Rights’ (2005) 30 EL Rev. 329
S. Gáspár-Szilágyi,‘The “Horizontal Direct Effect” of EU International Agreements:
Is the CourtAvoiding a ClearAnswer?’(2015) 42 Legal Issues of Economic Integration
93
M. Klammert, ‘Judicial Implementation of Directives and Anticipatory Indirect
Effect: Connecting the Dots’ (2006) 43 CML Rev. 1251
P. Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community
Law’ (1983) 8 EL Rev. 155
S. Prechal,‘Does Direct Effect Still Matter?’ (2000) 37 CML Rev. 1047
202
De Witte,‘Direct Effect, Supremacy’ (n. 200 above), 193.
Constitutional Foundations118
J. Steiner,‘Direct Applicability in EEC Law:A Chameleon Concept’ (1982) 98 Law
Quarterly Review 229
S.Weatherill,‘Breach of Directives and Breach of Contract’ (2001) 26 EL Rev. 177
G. Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different
Concepts in Community Law’ (1972) CML Rev. 425
B. de Witte,‘Direct Effect, Primacy and the Nature of the Legal Order’, in P. Craig
and G. de Búrca (eds.), The Evolution of EU Law (Oxford University Press, 1999),
323
Cases on the Website
Case 26/62, Van Gend en Loos; Case 6/68, Zuckerfabrik; Case 9/70, Grad; Case
2/74 Reyners; Case 41/74, Van Duyn; Case 43/75, Defrenne; Case 270/80, Polydor v.
Harlequin;Case 14/83,Von Colson;Case 152/84,Marshall;Case C-188/89,Foster;Case
C-192/89,Sevince;Case C-91/92,Faccini Dori;Case C-32/93,Webb;Case C-280/93,
Germany v. Council (Bananas); Case C-194/94, CIA Security; Case C-368/95,
Familiapress v. Bauer; Case C-149/96, Portugal v. Council; Case C-403/98, Azienda
Agricola; Case C-443/98, Unilever Italia; Case C-438/00, Deutscher Handallbund eV v.
Kolpak; Case C-144/04, Mangold; Case C-555/07, Kucukdeveci
4
European Law II
Nature – Supremacy/Pre-emption
Introduction
Since European law is directly applicable in the Member States, it must be recognised
alongside national law by national authorities.And since European law
can have direct effect, it might come into conflict with national law in a specific
situation.1
And where two legislative wills come into conflict, each legal order
must determine when conflicts arise and how these conflicts are to be resolved.
Contents
Introduction 119
1. The European Perspective:Absolute Supremacy 121
a. The Absolute Scope of the Supremacy Principle 122
aa. Supremacy over Internal Laws of the Member States 122
bb. Supremacy over International Treaties of the Member States 124
b. The ‘Executive’ Nature of Supremacy: Disapplication, Not Invalidation 126
2. The National Perspective: Relative Supremacy 130
a. Fundamental Rights Limits: The ‘So-long’ Jurisprudence 131
b. Competence Limits I: From ‘Maastricht’ to ‘Mangold’ 133
c. Competence Limits II: National Constitutional Identities 137
3. Legislative Pre-emption: Nature and Effect 138
a. Field Pre-emption 139
b. Obstacle Pre-emption 140
c. Rule Pre-emption 141
4. Constitutional Limits to Union Pre-emption 141
a. Union Instruments and Their Pre-emptive Capacity 142
aa. The Pre-emptive Capacity of Regulations 142
bb. The Pre-emptive Capacity of Directives 143
cc. The Pre-emptive Capacity of International Agreements 144
b. Excursus: Competence Limits to Pre-emption 146
Conclusion 147
Further Reading 148
1
For the main theories on the relationship between direct effect and supremacy, see
M. Dougan, ‘When Worlds Collide! Competing Visions of the Relationship between
Constitutional Foundations120
For the Union legal order,these two dimensions have indeed been developed.
In Europe’s constitutionalism they have been described as, respectively, the principle
of pre-emption and the principle of supremacy:‘The problem of preemption
consists in determining whether there exists a conflict between a national
measure and a rule of [European] law.The problem of [supremacy] concerns the
manner in which such a conflict, if it is found to exist, will be resolved.’2
Preemption
and supremacy thus represent ‘two sides of the same coin’.3
They are
like Siamese twins: different though inseparable.There is no supremacy without
pre-emption.
This chapter begins with an analysis of the supremacy doctrine.How supreme
is European law? Will European law prevail over all national law? And what is
the effect of the supremacy principle on national law? We shall see that there
are two perspectives on the supremacy question.According to the European perspective,
all Union law prevails over all national law.This ‘absolute’ view is not
shared by the Member States. Indeed, according to their national perspective(s),
the supremacy of European law is relative: some national law is considered to be
beyond the supremacy of European law.
A third section then moves to the doctrine of pre-emption.This concept tells
us to what extent European law ‘displaces’ national law; or, to put it the other
way around:how much legislative space European law still leaves to the Member
States.The Union legislator is generally free to choose to what extent it wishes
to pre-empt national law within a certain area. However, there are two possible
constitutional limits to this freedom. First, the type of instrument used – regulation,directive
or international agreement – might limit the pre-emptive effect of
Union law.And, second: the type of competence on which the Union act is based
might determine the capacity of the Union legislator to pre-empt the Member
States.
Direct Effect and Supremacy’ (2007) 44 CML Rev. 931. This chapter, as will become
clearer below,favours the view that supremacy requires direct effect.For where a European
norm lacks direct effect, it cannot be applied in a specific case and for that reason cannot
clash with a national norm. This is, in my view, also the traditional position of the
European Court. The latter – for example – regularly holds that ‘the question whether
a national provision must be disapplied in as much as it conflicts with European Union
law arises only if no compatible interpretation of that provision proves possible’ (Case
C-282/10 Dominguez, EU:C:2012:33, para. 23); and that seems to clearly suggest that,
with regard to the indirect effect of, say, a European directive, it is not the doctrine of
supremacy but another doctrine that applies.And it is that (!) other doctrine, for example,
the duty of consistent interpretation derived from Art. 4(3) TEU that is here given direct
effect in a specific case.
2
M. Waelbroeck, ‘The Emergent Doctrine of Community Preemption: Consent and
Redelegation’, in T. Sandalow and E. Stein (eds.), Courts and Free Markets: Perspectives from
the United States and Europe, 2 vols. (Oxford University Press, 1982), II, 548–80, at 551.
3
S. Krislov, C.-D. Ehlermann and J.Weiler,‘The Political Organs and the Decision-Making
Process in the United States and the European Community’,in M.Cappelletti,M.Seccombe
and J.Weiler (eds.), Integration through Law: Europe and the American Federal Experience, 5 vols.
(de Gruyter, 1986), I, 3 at 90.
European Law II 121
1. The European Perspective: Absolute Supremacy
The resolution of legal conflicts requires a hierarchy of norms. Modern federal
States typically resolve conflicts between federal and State legislation in
favour of the former: federal law is supreme over State law.4
This ‘centralised
solution’ has become so engrained in our constitutional mentalities that we
tend to forget that the ‘decentralised solution’ is also possible: local law may
reign supreme over central law.5
(Supremacy and direct effect are thus not
different sides of the same coin. While the supremacy of a norm implies its
direct effect, the direct effect of a norm will not imply its supremacy.)6
Each
compound legal order must thus determine which law prevails in the case of a
normative conflict.The simplest supremacy format here is one that is absolute:
all law from one legal order is superior to all law from the other. Absolute
supremacy may here be given to the legal system of the smaller or the bigger
political community. But between these two extremes lies a range of possible
nuances.7
When the Union was born, the European Treaties did not expressly state
the supremacy of European law.8
Did this mean that supremacy was a matter
to be determined by the national legal orders (decentralised solution)?
Or was there a Union doctrine of supremacy (centralised solution)? And if
the latter, how supreme would European law be over national law? Would it
adopt an absolute doctrine, or would it permit areas in which national law
could prevail over conflicting European law? And would the supremacy of
European law lead to the ‘invalidation’ of State law; or would it only demand
its ‘disapplication’?
4
Art.VI, Clause 2 of the US Constitution, for example, states: ‘This Constitution, and the
Laws of the United States which shall be made in pursuance thereof; and all treaties made,
or which shall be made,under the Authority of the United States,shall be the supreme Law
of the Land.’
5
For a long time, the ‘decentralised solution’ structured federal relationships during the
Middle Ages. Its constitutional spirit is best preserved in the old legal proverb:‘Town law
breaks county law, county law breaks common law’. In the event of a legislative conflict,
supremacy was thus given to the rule of the smaller political community.
6
We can see direct effect without supremacy in the status given to customary international
law in the British legal order.
7
The status of international law in the German legal order depends on its legal source.While
general principles of international law assume a hierarchical position between the German
Constitution and federal legislation, international treaties have traditionally been placed at
the hierarchical rank of normal legislation.
8
The 2004 Constitutional Treaty would have added an express provision (Art. I-6 CT):‘The
Constitution and law adopted by the institutions of the Union in exercising competences
conferred on it shall have primacy over the law of the Member States.’ However, the provision
was not taken over by the LisbonTreaty.Yet the latter has added Declaration 17 which
states:‘The Conference recalls that, in accordance with well settled case law of the Court of
Justice of the European Union, theTreaties and the law adopted by the Union on the basis
of theTreaties have primacy over the law of Member States,under the conditions laid down
by the said case law.’
Constitutional Foundations122
Let us tackle these questions in two steps. We shall first look at the scope
of the supremacy doctrine and see that the Union prefers an absolute principle:
all European law prevails over all national law. However, the supremacy
of European law will not affect the validity of national norms.This ‘executive’
nature of supremacy will be discussed in a second step.
a. The Absolute Scope of the Supremacy Principle
The dualist traditions within some Member States in 1958 posed a serious legal
threat to the unity of the Union legal order.9
Within dualist States, the status of
European law is seen as depending on the national act‘transposing’the European
Treaties.Where this was a parliamentary act, any subsequent parliamentary acts
could – expressly or implicitly – repeal the transposition law.Within the British
tradition, this follows from the classic doctrine of parliamentary sovereignty: an
‘old’ Parliament cannot bind a ‘new’ one.Any ‘newer’ parliamentary act will thus
theoretically prevail over the ‘older’ 1972 European Communities Act. But the
supremacy of European law may even be threatened in constitutionally monist
States,because the supremacy of European law can here find a limit in the State’s
constitutional identity.
Would the European legal order insist that its law was to prevail over all
national law, including national constitutions? The Court of Justice did just that
in a series of foundational cases. But, while the establishment of Union supremacy
over internal national law was swift, its extension over the international
treaties of the Member States was much slower.
aa. Supremacy over Internal Laws of the Member States
Frightened by the decentralised solution to the supremacy issue, the Court
centralised the question of supremacy quickly by turning it into a principle
of Union law. In Costa v. ENEL,10
the European judiciary was asked
whether national legislation adopted after 1958 could prevail over the Treaties.
The litigation involved an unsettled energy bill owed by Costa to the Italian
National Electricity Board.The latter had been created by the 1962 Electricity
Nationalisation Act, which was challenged by the plaintiff as a violation of the
European Treaties. The Italian dualist tradition responded that the European
Treaties – like ordinary international law – had been transposed by national
legislation in 1957 that could – following international law logic – be derogated
by subsequent national legislation.
Could the Member States thus unilaterally determine the status of European
law in their national legal orders?The Court rejected this reading and distanced
itself from the international law thesis:
9
C. Sasse,‘The Common Market: Between International and Municipal Law’ (1965–6) 75
Yale LJ 696–753.
10
Case 6/64, Costa v. ENEL [1964] ECR 585.
European Law II 123
By contrast with ordinary international treaties, the E[U] 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 … The
integration into the laws of each Member State of provisions which derive from the
[Union], and more generally the terms and the spirit of the Treaty, make it impossible for
the States, as a corollary, to accord precedence to a unilateral and subsequent measure
over a legal system accepted by them on a basis of reciprocity. Such a measure cannot
therefore be inconsistent with that legal system. The executive force of [European]
law cannot vary from one State to another in deference to subsequent domestic laws,
without jeopardising the attainment of the objectives of the Treaty … It follows from
all these observations that 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 [European]
law and without the legal basis of the [Union] itself being called into question.11
European law would need to reign supreme over national law, since its ‘executive
force’ must not vary from one State to another.The supremacy of Union
law could not be derived from classic international law;12
and for that reason
that Court had to declare the Union legal order autonomous from ordinary
international law.
How supreme was European law?The fact that the EuropeanTreaties prevailed
over national legislation did not automatically imply that all European law would
prevail over all national law. Would the Court accept a ‘nuanced’ solution for
certain national norms, such as national constitutional law?The European Court
never accepted the relative scope of the supremacy doctrine.This was clarified
in Internationale Handelsgesellschaft.13
A German administrative court doubted that
European legislation could violate fundamental rights granted by the German
Constitution and raised this very question with the European Court of Justice.
Were the fundamental structural principles of national constitutions, including
human rights, beyond the scope of EU supremacy?The Court disagreed:
11
Ibid., 593–4 (emphasis added).
12
Some legal scholars refer to the ‘supremacy’ of international law vis-à-vis national law (see
F.Morgenstern,‘Judicial Practice and the Supremacy of International Law’(1950) 27 BYIL
42). However, the concept of supremacy is here used in an imprecise way. Legal supremacy
stands for the priority of one norm over another. For this, two norms must conflict
and, therefore, form part of an integrated legal order.Yet classic international law is based
on the sovereignty of States and that implied a dualist relation with national law.Reference
to the international law doctrine pacta sunt servanda will hardly help.The fact that a State
cannot invoke its internal law to justify a breach of international obligations is not supremacy.
Behind the doctrine of pacta sunt servanda stands the concept of legal responsibility:
a State cannot – without legal responsibility – escape its international obligations. The
duality of internal and international law is thereby maintained: the former cannot affect
the latter (as the latter cannot affect the former).
13
Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- undVorratsstelle für Getreide und
Futtermittel [1970] ECR 1125.
Constitutional Foundations124
Recourse to the legal rules or concepts of national law in order to judge the validity of
measures adopted by the institutions of the [Union] would have an adverse effect on
the uniformity and efficiency of [Union] law. The validity of such measures can only
be judged in the light of [Union] law.14
14
Ibid., para. 3.
15
R. Kovar, ‘The Relationship between Community Law and National Law’, in EC
Commission (ed.), ThirtyYears of Community Law (EC Commission, 1981), 109 at 112–13.
16
On the establishment of the social acceptance of the doctrine, see K.Alter, Establishing the
Supremacy of European Law:The Making of an International Rule of Law in Europe (Oxford
University Press, 2001).
17
Para.1.The provision continues (para.2):‘To the extent that such agreements are not compatible
with the Treaties, the Member State or States concerned shall take all appropriate
steps to eliminate the incompatibilities established. Member States shall, where necessary,
assist each other to this end and shall, where appropriate, adopt a common attitude.’ On
the scope of this obligation, see J. Klabbers,‘Moribund on the Fourth of July? The Court
of Justice on Prior Agreements of the Member States’ (2001) 26 EL Rev. 187; and R.
Schütze,‘The “Succession Doctrine” and the European Union’, in Foreign Affairs and the
EU Constitution (Cambridge University Press, 2014), 91.
The validity of Union law could thus not be affected – even by the most fundamental
norms within the Member States.The Court’s vision of the supremacy
of European law over national law was an absolute one: ‘The whole of
[European] law prevails over the whole of national law.’15
bb. Supremacy over International Treaties of the Member States
While the Union doctrine of supremacy had quickly emerged with regard to
national legislation,16
its extension to international agreements of the Member
States was much slower. From the very beginning, the Treaties here recognised
an express exception to the supremacy of European law. According to Article
351 TFEU:
The rights and obligations arising from agreements concluded before 1 January 1958
or, for acceding States, before the date of their accession, between one or more
Member States on the one hand, and one or more third countries on the other, shall
not be affected by the provisions of the Treaties.17
Article 351 here codified the ‘supremacy’ of prior international agreements
of the Member States over conflicting European law. In the event of a conflict
between the two, it was European law that could be disapplied within the
national legal orders. Indeed, Article 351 ‘would not achieve its purpose if it did
not imply a duty on the part of the institutions of the [Union] not to impede
the performance of the obligations of Member States which stem from a prior
European Law II 125
agreement’.18
This was a severe incursion into the integrity of the European legal
order, and as such had to be interpreted restrictively.19
But would there be internal or external limits to the ‘supremacy’ of prior
international treaties of the Member States? The Court clarified that there
existed internal limits to the provision.Article 351(1) would only allow Member
States to implement their obligations towards third States.20
Member States could
thus not rely on Article 351 to enforce their rights; nor could they rely on the
provision to fulfil their international obligations between themselves.
These internal limitations are complemented by external limitations. The
Court clarified their existence in Kadi.21
While admitting that Article 351
would justify even derogations from primary Union law, the Court insisted
that the provision ‘cannot, however, be understood to authorise any derogation
from the principles of liberty, democracy and respect for human rights
and fundamental freedoms enshrined in Article [2] [T]EU as a foundation of
the Union’.22
In the opinion of the Court, ‘Article [351 TFEU] may in no
circumstances permit any challenge to the principles that form part of the very
foundations of the [Union] legal order.’23
The Union’s constitutional identity
constituted a limit to the supremacy of prior international treaties concluded
by the Member States.
But can the – limited – application of Article 351 TFEU be extended, by
analogy, to all international agreements concluded by the Member States? The
main constitutional thrust behind the argument is that it protects the effective
exercise of the treaty-making powers of the Member States. For:‘otherwise the
Member States could not conclude any international treaty without running
18
Case 812/79,Attorney General v.Juan C.Burgoa [1980] ECR 2787,para.9 (emphasis added).
This was confirmed in Case C-158/91,Criminal Proceedings against Jean-Claude Levy [1993]
ECR I-4287, para. 22:‘In view of the foregoing considerations, the answer to the question
submitted for a preliminary ruling must be that the national court is under an obligation to
ensure [that the relevant European legislation] … is fully complied with by refraining from
applying any conflicting provision of national legislation, unless the application of such a
provision is necessary in order to ensure the performance by the Member State concerned
of obligations arising under an agreement concluded with non-member countries prior to
the entry into force of the EEC Treaty.’
19
Case C-324/93, The Queen v. Secretary of State for Home Department, ex p. Evans Medical Ltd
and Macfarlan Smith Ltd [1995] ECR I-563, para. 32.
20
Case 10/61,Commission v.Italy [1962] ECR 1,10–11:‘[T]he terms“rights and obligations”
in Article [351] refer, as regards the “rights”, to the rights of third countries and, as regards
the “obligations”, to the obligations of Member States and that, by virtue of the principles
of international law, by assuming a new obligation which is incompatible with rights held
under a prior treaty, a State ipso facto gives up the exercise of these rights to the extent
necessary for the performance of its new obligation … In fact, in matters governed by
the [European] Treat[ies], th[ese] Treat[ies] take precedence over agreements concluded
between Member States before [their] entry into force[.]’
21
Case C-402/05P, Kadi and Al Barakaat International Foundation v. Council and Commission
[2008] ECR I-6351.
22
Ibid., para. 303.
23
Case C-402/05P, Kadi, para. 304.
Constitutional Foundations126
the risk of a subsequent conflict with [European] law’.24
This idea has been
criticised: there would be no reason why the normal constitutional principles
characterising the relationship between European law and unilateral national
acts should not also apply to subsequently concluded international agreements.25
A middle position has proposed limiting the analogous application of Article 351
to situations where the conflict between post-accession international treaties of
Member States and subsequently adopted European legislation was ‘objectively
unforeseeable’ and could therefore not be expected.26
None of the proposals to extend Article 351 by analogy has however been
mirrored in the jurisprudence of the European Court of Justice.27
The Court
has unconditionally upheld the supremacy of European law over international
agreements concluded by the Member States after 1958 (or their date of
accession).
In light of the potential international responsibility of the Member States, is
this a fair constitutional solution? Should it indeed make a difference whether
a rule is adopted by means of a unilateral national measure or by means of an
international agreement with a third State? Constitutional solutions still need
to be found to solve the Member States’ dilemma of choosing between the
Scylla of liability under the EuropeanTreaties and the Charybdis of international
responsibility for breach of contract. Should the Union legal order, therefore,
be given an ex ante authorisation mechanism for Member States’ international
agreements? Or should the Union share financial responsibility for breach of
contract with the Member State concerned? These are difficult constitutional
questions.They await future constitutional answers.28
b. The ‘Executive’ Nature of Supremacy: Disapplication, Not Invalidation
What are the legal consequences of the supremacy of European law over conflicting
national law? Must a national court ‘hold such provisions inapplicable
to the extent to which they are incompatible with [European] law’, or must it
24
E. Pache and J. Bielitz, ‘Das Verhältnis der EG zu den völkerrechtlichen Verträgen ihrer
Mitgliedstaaten’ (2006) 41 Europarecht 316 at 327 (my translation).
25
E. Bülow, ‘Die Anwendung des Gemeinschaftsrechts im Verhältnis zu Drittländern’, in
A. Clauder (ed.), Einführung in die Rechtsfragen der europäischen Integration (Europa Union
Verlag, 1972), 52, 54.
26
E.-U. Petersmann,‘Artikel 234’, in H.Von der Groeben, J.Thiesing and C.-D. Ehlermann
(eds.), Kommentar zum EWG-Vertrag (Nomos, 1991) 5725 at 5731 (para. 6).
27
See Joined Cases C-176–7/97, Commission v. Belgium and Luxembourg [1998] ECR I-3557.
28
For the time being, one legislative answer can be seen in the inclusion of ‘savings’
clauses in the relevant Union legislation.A good illustration of this technique is Art. 28
of Regulation 864/2007 on the law applicable to non-contractual obligations (Rome
II) [2007] OJ L 199/40.This clause constitutes a legislative extension of Art. 351TFEU:
the Union legislation will not affect international agreements of the Member States
with third States concluded after 1958 but before the time when the Regulation was
adopted.
European Law II 127
‘declare them void’?29
This question concerns the constitutional effect of the
supremacy doctrine in the Member States.
The classic answer to these questions is found in Simmenthal II.30
The issue
raised in the national proceedings was this: ‘what consequences flow from the
direct applicability of a provision of [Union] law in the event of incompatibility
with a subsequent legislative provision of a Member State’?31
Within the Italian
constitutional order,national legislation could be repealed solely by Parliament or
the Supreme Court (see Figure 4.1).Would lower national courts thus have to
wait until this happened and, in the meantime, apply national laws that violate
Union laws?
Unsurprisingly, the European Court rejected such a reading. Appealing to
the ‘very foundations of the [Union]’, the European Court stated that national
courts were under a direct obligation to give immediate effect to European
law.The supremacy of European law meant that ‘rules of [European] law must
be fully and uniformly applied in all the Member States from the date of their
entry into force and for so long as they continue in force’.32
But did this mean
that the national court had to repeal the national law? According to one view,
supremacy did indeed mean that national courts must declare conflicting
national laws void. European law would ‘break’ national law.33
Yet the Court
preferred a milder – second – view:
29
This very question was raised in Case 34/67, Firma Gebrüder Luck v. Hauptzollamt
KölnRheinau [1968] ECR 245.
30
Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA [1978] ECR 629.
But see also Case 48/71, Commission v. Italy [1978] ECR 629.
31
Case 106/77, Simmenthal, para. 13.
32
Ibid., para. 14.
33
This is the very title of a German monograph by E. Grabitz, Gemeinschaftsrecht bricht nationales
Recht (L. Appel, 1966). This position was shared by Hallstein: ‘[T]he supremacy of
[European] law means essentially two things: its rules take precedence irrespective of the
level of the two orders at which the conflict occurs, and further, [European] law not only
invalidates previous national law but also limits subsequent national legislation’ (W. Hallstein,
quoted in Sasse,‘Common Market’ (n. 9 above) at 717 (emphasis added)).
Cassation
Higher Courts
First Instance Courts
NationalParliamentor
ConstitutionalCourt
Figure 4.1 Simmenthal II: Centralised Constitutional Review
Constitutional Foundations128
[I]n accordance with the principle of precedence of [European] law, the relationship
between provisions of the Treaty and directly applicable measures of the institutions
on the one hand and the national law of the Member States on the other is such
that those provisions and measures not only by their entry into force render automatically
inapplicable any conflicting provision of current national law but – in so
far as they are an integral part of, and take precedence in, the legal order applicable
in the territory of each of the Member States – also preclude the valid adoption of
new legislative measures to the extent to which they would be incompatible with
[European] provisions.34
34
Case 106/77, Simmenthal, para. 17 (emphasis added).
35
The Court’s reference to ‘directly applicable measures’ was not designed to limit the
supremacy of European law to regulations.The Union acts at issue in Simmenthal were,
after all, directives.This point was clarified in subsequent jurisprudence: see Case 148/78,
Ratti [1979] ECR 1629; Case 152/84, Marshall v. Southampton and South-West Hampshire
Area Health Authority [1986] ECR 723.
36
Case 106/77, Simmenthal, para. 17 (emphasis added).
37
A. Barav, ‘Les effets du droit communautaire directement applicable’ (1978) 14 CDE
265–86 at 275–6; Grabitz, Gemeinschaftsrecht (n. 33 above) and Hallstein, quoted in Sasse,
‘Common Market’ (n. 9 above).
38
Joined Cases C-10–22/97, Ministero delle Finanze v. IN.CO.GE. ’90 Srl and others [1998]
ECR I-6307.
39
Ibid., para. 18 (emphasis added).
40
The Simmenthal II Court had indeed not envisaged two different consequences for the
supremacy principle.While para. 17 appears to make a distinction depending on whether
national legislation existed or not,the operative part of the judgment referred to both variants.It
stated that a national court should refuse of its own motion to‘apply any conflicting
provision of national legislation’ (Case 106/77, Simmenthal, dictum).
Wherenational measures conflictwithEuropeanlaw,thesupremacyofEuropean
law would thus not render them void, but only ‘inapplicable’.35
Not ‘invalidation’
but ‘disapplication’ was required of national courts, where European laws came
into conflict with pre-existing national laws.Yet,in the above passage,the effect of
the supremacy doctrine appeared stronger in relation to subsequent national legislation.
Here, the Court said that the supremacy of European law would ‘preclude
the valid adoption of new legislative measures to the extent to which they would
be incompatible with [European] provisions’.36
Was this to imply that national
legislators were not even competent to adopt national laws that would run counter
to existing European law?Were these national laws void ab initio?37
In Ministero delle Finanze v. IN. CO. GE. ’90,38
the Commission picked up
this second prong of the Simmenthal II ruling and argued that ‘a Member State
has no power whatever to [subsequently] adopt a fiscal provision that is incompatible
with [European] law, with the result that such a provision … must be treated as
nonexistent’.39
But the European Court of Justice disagreed with this interpretation.
Pointing out that Simmenthal II ‘did not draw any distinction between
preexisting and subsequently adopted national law’,40
the incompatibility of
European Law II 129
subsequently adopted rules of national law with European law did not have the
effect of rendering these rules non-existent.41
National courts were thus only
under an obligation to disapply a conflicting provision of national law – be it
prior or subsequent to the Union law.42
What will this tell us about the nature of the supremacy principle? It tells us
that the supremacy doctrine is about the ‘executive force’ of European law.The
Union legal order, while integrated with the national legal orders, is not a ‘unitary’
legal order. European law leaves the ‘validity’ of national norms untouched;
and will not negate the underlying legislative competence of the Member States.
The supremacy principle is thus not addressed to the State legislatures,but to the
national executive and judicial branches. (And, while the national legislator will
be required to amend or repeal national provisions that give rise to legal uncer-
tainty,43
this secondary obligation is not a direct result of the supremacy doctrine
but derives from Article 4(3) TEU.)44
The executive force of European law thus
generally leaves the normative validity of national law intact. National courts are
not obliged to ‘break’ national law.They must only not apply it when in conflict
with European law in a specific case.
This federal supremacy doctrine has a number of advantages. First, some
national legal orders may not grant their (lower) courts the power to invalidate
parliamentary laws.The question of who may invalidate national laws is
thus left to the national legal order.45
Second, comprehensive national laws
41
Joined Cases C-10–22/97, IN.CO.GE., paras. 20–1.
42
The non-application of national laws in these cases is but a mandatory ‘minimum requirement’
set by the Union legal order.A national legal order can, if it so wishes, offer stricter
consequences to protect the full effectiveness of European law:Case 34/67,Firma Gebruder
Luck v. Hauptzollamt Koln-Rheinau [1968] ECR 245, at 251:‘[Although European law] has
the effect of excluding the application of any national measure incompatible with it, the
article does not restrict the powers of the competent national courts to apply, from among
the various procedures available under national law, those which are appropriate for the
purpose of protecting the individual rights conferred by [European] law.’
43
See Case C-185/96, Commission v. Hellenic Republic [1998] ECR 6601, para. 32:‘On that
point,suffice it to recall that,according to established case-law,the maintenance of national
legislation which is in itself incompatible with [European] law, even if the Member State
concerned acts in accordance with [European] law, gives rise to an ambiguous state of
affairs by maintaining, as regards those subject to the law who are concerned, a state of
uncertainty as to the possibilities for them of relying on [European] law.’ See also Case
367/98, Commission v. Portugal [2002] ECR I-4731, esp. para. 41:‘The Court has consistently
held that the incompatibility of provisions of national law with provisions of the
Treaty,even those directly applicable,can be definitively eliminated only by means of binding
domestic provisions having the same legal force as those which require to be amended.’
44
See e.g. Case 74/86, Commission v. Germany [1988] ECR 2139, para. 12.
45
Case C-314/08,Filipiak v.Dyrektor Izby Skarbowej w Poznaniu [2009] ECR I–11049,para.82:
‘Pursuant to the principle of the primacy of [European] law, a conflict between a provision
of national law and a directly applicable provision of theTreaty is to be resolved by a national
court applying [European] law, if necessary by refusing to apply the conflicting national provision,and
not by a declaration that the national provision is invalid,the powers of authorities,
courts and tribunals in that regard being a matter to be determined by each Member State.’
Constitutional Foundations130
must only be disapplied to the extent to which they conflict with European
law.46
They will remain operable in purely internal situations. Third, once
the Union act is repealed, national legislation may become fully operational
again.47
2. The National Perspective: Relative Supremacy
The European Union is not a Federal State in which the sovereignty problem
is solved.The European Union is a federal union of States.48
Each federal union
is characterised by a political dualism in which each citizen is a member of
two political bodies.These two political bodies will compete for loyalty – and
sometimes, the ‘national’ view on a political question may not correspond with
the ‘European’ view on the matter.What happens when the political views of
a Member State clash with those of the federal Union? Controversies over the
supremacy of federal law are as old as the (modern) idea of federalism.49
And,
while the previous section exposed the European answer to the supremacy
doctrine, this absolute vision is – unsurprisingly – not shared by the Member
States.
There indeed exists a competing national view – or better:national views – on
the supremacy issue.The extreme version of such a national view can be found
in the (British) 2011 European Union Act.The latter unambiguously states as
follows:
46
B. de Witte,‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P. Craig and
G. de Búrca (eds.), The Evolution of EU Law (Oxford University Press, 1999), 177 at 190.
47
Ibid. 48
For an extensive discussion of this classification, see Chapter 2.
49
R.Schütze,‘Federalism as Constitutional Pluralism:Letter fromAmerica’,in J.Kommarek and
M.Avbelj (eds.), Constitutional Pluralism in the European Union and Beyond (Hart,2012),ch.8.
50
European Union Act 2011, s. 18.The text of s. 2(1) of the European Communities Act
1972 states: ‘All such rights, powers, liabilities, obligations and restrictions from time to
time created or arising by or under theTreaties,and all such remedies and procedures from
time to time provided for by or under the Treaties, as in accordance with the Treaties are
without further enactment to be given legal effect or used in the United Kingdom shall
be recognised and available in law, and be enforced, allowed and followed accordingly; and
the expression “enforceable EU right” and similar expressions shall be read as referring to
one to which this subsection applies.’For a discussion of the complex relationship between
European Union law and the doctrine of parliamentary sovereignty, see e.g. C. Turpin
and A. Tomkins, British Government and the Constitution: Text and Materials (Cambridge
University Press, 2011), 335ff.; A. Le Sueur et al., Public Law: Text, Cases, and Materials
(Oxford University Press, 2013), 814ff.
Directly applicable or directly effective EU law (that is, the rights, powers, liabilities,
obligations, restrictions, remedies and procedures referred to in section 2(1) of the
European Communities Act 1972) falls to be recognised and available in law in the
United Kingdom only by virtue of that Act or where it is required to be recognised
and available in law by virtue of any other Act.50
European Law II 131
A milder national perspective, on the other hand, accepts the supremacy of
European law over national legislation; yet the supremacy of European law is still
relative, since it is granted and limited by national constitutional law.
The national view(s) on the supremacy of European law have traditionally
been expressed in three contexts.51
First, some Member States – in particular
their Supreme Courts – have fought a battle over human rights within the
Union legal order. It was claimed that European law could not violate national
fundamental rights.The same power has been claimed in a second context: ultra
vires control.While the Member States here generally accept the supremacy of
European law within limited fields, they contest that the European Union can
exclusively delimit these fields. Finally, a third national claim goes even further
than this and argues that there are absolute limits to European integration set
by the ‘constitutional identity’ of each Member State.The following section will
briefly introduce each of these three battles over the supremacy of European
law by focusing predominantly on the conflict between the European Court of
Justice and the German Constitutional Court.
a. Fundamental Rights Limits: The ‘So-long’ Jurisprudence
A strong national view on supremacy crystallised around Internationale
Handelsgesellschaft.52
For after the European Court of Justice had espoused its
view on the absolute supremacy of European law, the case moved back to
the German Constitutional Court.53
The German Court now defined its perspective
on the question. Could national constitutional law, especially national
fundamental rights, affect the application of European law in the domestic legal
order?
Famously, the German Constitutional Court rejected the European Court’s
absolute vision and replaced it with the counter-theory of the relative supremacy
of European law.The reasoning of the German Court was as follows: while the
German Constitution expressly allowed for the transfer of sovereign powers to
the European Union in its Article 24,54
such a transfer was itself limited by the
51
The following section concentrates on the jurisprudence of the German Constitutional
Court.This court has long been the most pressing and – perhaps – prestigious national court
in the Union legal order. For the reaction of the French Supreme Courts, see R. Mehdi,
‘French Supreme Courts and European Union Law: Between Historical Compromise
and Accepted Loyalty’ (2011) 48 CML Rev. 439. For the views of the Central European
Constitutional Courts, see W. Sadurski, ‘“Solange, Chapter 3”: Constitutional Courts in
Central Europe – Democracy – European Union’ (2008) 14 ELJ 1.
52
Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- undVorratsstelle für Getreide und
Futtermittel [1970] ECR 1125.
53
BVerfGE 37,271 (Solange I (Re Internationale Handelsgesellschaft)).For an English translation,
see [1974] 2 CMLR 540.
54
Art. 24(1) of the German Constitution states:‘The Federation may by a law transfer sovereign
powers to international organisations.’ In the wake of the Maastricht Treaty, a new
article was inserted into the German Constitution expressly dealing with the European
Union (see Art. 23 German Constitution).
Constitutional Foundations132
‘constitutional identity’ of the German State. Fundamental constitutional structures
were thus beyond the supremacy of European law:
The part of the Constitution dealing with fundamental rights is an inalienable essential
feature of the valid Constitution of the Federal Republic of Germany and one
which forms part of the constitutional structure of the Constitution. Article 24 of the
Constitution does not without reservation allow it to be subjected to qualifications.
In this, the present state of integration of the [Union] is of crucial importance. The
[Union] still lacks … in particular a codified catalogue of fundamental rights, the
substance of which is reliably and unambiguously fixed for the future in the same
way as the substance of the Constitution … So long as this legal certainty, which is
not guaranteed merely by the decisions of the European Court of Justice, favourable
though these have been to fundamental rights, is not achieved in the course of the
further integration of the [Union], the reservation derived from Article 24 of the
Constitution applies … Provisionally, therefore, in the hypothetical case of a conflict
between [European] law and a part of national constitutional law or, more precisely,
of the guarantees of fundamental rights in the Constitution, there arises the question
of which system of law takes precedence, that is, ousts the other. In this conflict
of norms, the guarantee of fundamental rights in the Constitution prevails so long
as the competent organs of the [Union] have not removed the conflict of norms in
accordance with the Treaty mechanism.55
Thus, ‘so long’ as the European legal order had not developed an adequate
standard of fundamental rights, the German Constitutional Court would ‘disapply’
European law that conflicted with the fundamental rights guaranteed
in the German legal order.56
There were consequently national limits to the
supremacy of European law. However, these national limits were also relative,
as they depended on the evolution and nature of European law. This was the
very essence of the ‘so long’ formula: once the Union legal order had developed
equivalent human rights guarantees, the German Constitutional Court would
no longer challenge the supremacy of European law.
The Union legal order did indeed subsequently develop extensive human
rights bill(s),57
and the dispute over the supremacy doctrine was significantly softened
in the aftermath of a second famous European case with a national coda.
In Wünsche Handelsgesellschaft,58
the German Constitutional Court not only
55
Solange I [1974] CMLR 540 at 550–1, paras. 23–4 (emphasis added).
56
The German Constitutional Court here adopted the doctrine that the supremacy of the
German Constitution could only lead to a ‘disapplication’ and not an ‘invalidation’ of
European law.The German Court thus ‘never rules on the validity or invalidity of a rule
of [European] law’; but ‘[a]t most, it can come to the conclusion that such a rule cannot
be applied by the authorities or courts of the Federal Republic of Germany as far as it
conflicts with a rule of the Constitution relating to fundamental rights’ (ibid., 552).
57
On this point, see Chapter 12.
58
BVerfGE 73,339 (Solange II (ReWünsche Handelsgesellschaft)).For an English translation,see
[1987] 3 CMLR 225.
European Law II 133
recognised the creation of ‘substantially similar’ fundamental right guarantees, it
drew a remarkably self-effacing conclusion from this:
In view of those developments it must be held that, so long as the European [Union],
and in particular the case law of the European Court, generally ensure an effective
protection of fundamental rights as against the sovereign powers of the [Union]
which is to be regarded as substantially similar to the protection of fundamental rights
required unconditionally by the [German] Constitution, and in so far as they generally
safeguard the essential content of fundamental rights, the Federal Constitutional
Court will no longer exercise its jurisdiction to decide on the applicability of secondary
[Union] legislation cited as the legal basis for any acts of German courts or authorities
within the sovereign jurisdiction of the Federal Republic of Germany, and it will no
longer review such legislation by the standard of the fundamental rights contained
in the Constitution …59
This judgment became known as‘So-Long II’,for the German Constitutional
Court again had recourse to this famous formulation in determining its relationship
with European law. But importantly, this time the ‘so-long’ condition
was inverted.The German Court promised not to question the supremacy of
European law ‘so long’ as the latter guaranteed substantially similar fundamental
rights to those recognised by the German Constitution.This was not an absolute
promise to respect the absolute supremacy of European law, but a result of the
Court’s own relative supremacy doctrine having been fulfilled.‘So-Long II’ thus
only refined the national perspective on the limited supremacy of European law
in ‘So-Long I’.
b. Competence Limits I: From ‘Maastricht’ to ‘Mangold’
With the constitutional conflict over fundamental rights settled, a second concern
emerged: the ever-growing competences of the European Union. Who
was to control and limit the scope of European law? Was it enough to have the
European legislator centrally controlled by the European Court of Justice? Or
should the national constitutional courts be entitled to a decentralised ultra vires
review?
The European view on this is crystal clear:national courts cannot disapply – let
alone invalidate – European law.60
Yet, unsurprisingly, this absolute view has not
been shared by all Member States.And it was again the German Constitutional
Court that set the tone and the vocabulary of the constitutional debate. The
ultra vires question was at the heart of its famous Maastricht decision that would
subsequently be refined in Honeywell – the German reaction to the European
Court’s (in)famous decision in Mangold.
59
Ibid., 265 (para. 48).
60
On the Foto-Frost doctrine, see Chapter 11, Introduction.
Constitutional Foundations134
The German Court set out its ultra vires review doctrine in Maastricht.61
Starting from the premise that the Union only had limited powers, the Court
found that the Union ought not to be able to extend its own competences.
While the Treaties allowed for teleological interpretation, there existed a clear
dividing line ‘between a legal development within the terms of the Treaties and
a making of legal rules which breaks through its boundaries and is not covered
by valid Treaty law’.62
This led to the following conclusion:
Thus, if European institutions or agencies were to treat or develop the Union Treaty
in a way that was no longer covered by the Treaty in the form that is the basis for the
Act of Accession, the resultant legislative instruments would not be legally binding
within the sphere of German sovereignty. The German state organs would be prevented
for constitutional reasons from applying them in Germany. Accordingly the
Federal Constitutional Court will review legal instruments of European institutions
and agencies to see whether they remain within the limits of the sovereign rights
conferred on them or transgress them …
Whereas a dynamic extension of the existing Treaties has so far been supported
on the basis of an open-handed treatment of Article [352] of the [FEU] Treaty as a
‘competence to round-off the Treaty’ as a whole, and on the basis of considerations
relating to the ‘implied powers’ of the [Union], and of Treaty interpretation as allowing
maximum exploitation of [Union] powers (‘effet utile’), in future it will have to
be noted as regards interpretation of enabling provisions by [Union] institutions and
agencies that the Union Treaty as a matter of principle distinguishes between the
exercise of a sovereign power conferred for limited purposes and the amending of
the Treaty, so that its interpretation may not have effects that are equivalent to an
extension of the Treaty. Such an interpretation of enabling rules would not produce
any binding effects for Germany.63
The German Constitutional Court thus threatened to disapply European law
that it considered to have been adopted ultra vires.
This national review power was subsequently confirmed.64
Yet, the doctrine
was limited and refined in Honeywell.65
The case resulted from a constitutional
complaint that targeted the European Court’s ruling in Mangold.66
The plaintiff
61
BVerfGE 89, 155 (Maastricht Decision). For an English translation, see [1994] 1 CMLR 57.
62
Ibid., 105 (para. 98). 63
Ibid., 105 (para. 99).
64
BVerfGE 123, 267 (Lisbon Decision). For an English translation, see [2010] 3 CMLR 276.
The Court here added a third sequel to its ‘So-Long’ jurisprudence (ibid., 343):‘As long as,
and insofar as, the principle of conferral is adhered to in an association of sovereign states
with clear elements of executive and governmental cooperation,the legitimation provided
by national parliaments and governments complemented and sustained by the directly
elected European Parliament is sufficient in principle.’
65
2 BvR 2661/06 (Re Honeywell). For an English translation, see [2011] 1 CMLR 1067.
For a discussion of the case, see M. Paydandeh,‘Constitutional Review of EU Law after
Honeywell: Contextualising the Relationship between the German Constitutional Court
and the EU Court of Justice’ (2011) 48 CML Rev. 9.
66
For an extensive discussion of the case, see Chapter 3, section 3(b/bb).
European Law II 135
argued that the European Court’s ‘discovery’ of a European principle that prohibited
discrimination on grounds of age was ultra vires as it read something
into the Treaties that was not there. In its decision, the German Constitutional
Court confirmed its relative supremacy doctrine. It claimed the power to disapply
European law that it considered not to be covered by the text of theTreaties.
The principle of supremacy was thus not unlimited.67
However, reminiscent of
its judicial deference in So-Long II, the Court accepted a presumption that the
Union would generally act within the scope of its competences:
If each member State claimed to be able to decide through their own courts on the
validity of legal acts by the Union, the primacy of application could be circumvented
in practice, and the uniform application of Union law would be placed at risk. If
however, on the other hand the Member States were completely to forgo ultra vires
review, disposal of the treaty basis would be transferred to the Union bodies alone,
even if their understanding of the law led in the practical outcome to an amendment
of a Treaty or an expansion of competences. That in the borderline cases of
possible transgression of competences on the part of the Union bodies – which is
infrequent, as should be expected according to the institutional and procedural precautions
of Union law – the [national] constitutional and the Union law perspective
do not completely harmonise, is due to the circumstance that the Member States of
the European Union also remain the masters of the Treaties …
Ultra vires review by the Federal Constitutional Court can moreover only be considered
if it is manifest that acts of the European bodies and institutions have taken
place outside the transferred competences. A breach of the principle of conferral is
only manifest if the European bodies and institutions have transgressed the boundaries
of their competences in a manner specifically violating the principle of conferral,
the breach of competences is in other words sufficiently qualified. This means that
the act of the authority of the European Union must be manifestly in violation of
competences and that the impugned act is highly significant in the structure of competences
between the Member States and the Union with regard to the principle of
conferral and to the binding nature of the statute under the rule of law.68
67
Honeywell [2011] 1 CMLR 1067 at 1084 (para. 39):‘Unlike the primacy of application of
federal law, as provided for by Article 31 of the Basic Law for the German legal system, the
primacy of application of Union law cannot be comprehensive.’(It is ironic that this is said
by a German federal court.)
68
Ibid., 1085–6 (paras. 42 and 46 (emphasis added)).
69
C. U.Schmid,‘All Bark and No Bite:Notes on the Federal Constitutional Court’s“Banana
Decision”’ (2001) 7 ELJ 95.
This limits the national review of European law to ‘specific’ and ‘manifest’
violations of the principle of conferral. There was thus a presumption that the
Union institutions would generally act intra vires; and only for clear and exceptional
violations would the German Constitutional Court challenge the supremacy of
European law.This has – so far – never happened.
But if the German court’s behaviour was ‘all bark and no bite’,69
another
Supreme Court appears to have recently taken a bite and openly refused to
Constitutional Foundations136
apply European Union law. Rebelling against the European Court’s Mangold
jurisprudence, the Danish Supreme Court has stated that the idea of a directly
effective unwritten general principle of European law was not acceptable. In
Dansk Industri (Ajos),70
it thus held:
Following the EU Court of Justice’s judgments in Mangold, C-144/04, EU:C:2005:709,
Kücükdeveci, C-555/07, EU:C:2010:21, and the present case, we find that the principle
prohibiting discrimination on grounds of age is a general principle of EU law
which, according to the EU Court of Justice, is to be found in various international
instruments and in the constitutional traditions common to the Member States. The
EU Court of Justice does not refer to provisions in those treaties covered by the Law
on Accession as a basis for the principle.
Even though the principle is inferred from legal sources outside the EU Treaties, it
is obvious that the three aforementioned judgments must be construed as involving
an unwritten principle which applies at treaty level. There is nothing in those judgments,
however, to indicate that there is a specific treaty provision providing the basis
for the principle. A situation such as this, in which a principle at treaty level under
EU law is to have direct effect (thereby creating obligations) and be allowed to take
precedence over conflicting Danish law in a dispute between individuals, without the
principle having any basis in a specific treaty provision, is not foreseen in the Law on
Accession … It follows from the foregoing that, under the Law on Accession, principles
developed or established on the basis of Article 6(3) TEU have not been made
directly applicable in Denmark.71
The Danish Supreme Court thus found that unwritten general principles
of EU law could not have direct effect within Denmark, because the Danish
Accession Law simply did not cover the European Court’s Mangold jurispru-
dence.72
The judgment is a novelty and has been criticised as a ‘mutual disempowerment’
and a ‘breakdown of mutual trust’ between the European Court of
Justice and the Danish Supreme Court.73
70
Case 15/2014, Dansk Industri, acting on behalf of Ajos v. Estate of A. For an unofficial English
translation, see the textbook’s companion website.The case is a reaction to the ECJ case
of the same name in which the Supreme Court had referred a number of preliminary
questions to the ECJ, see: Case C-441/14, Dansk Industri (DI), acting on behalf of Ajos A/S v.
Estate of Karsten Eigil Rasmussen, EU:C:2016:278.
71
Ibid., pp. 45 and 47 (emphasis added).
72
This conclusion faces, in my view, a major obstacle that was identified by the Danish
Supreme Court itself. The Danish Accession Law had been amended in 2008 to allow
for the Lisbon Treaty and since Mangold had been decided in 2005, the 2008 Amendment
had arguably absorbed and implicitly ratified that judicial development.The fact that the
Mangold judgment was not expressly referred in the travaux préparatoires of the 2008 amendment
cannot, in my view, change that conclusion.The Danish Supreme Court however
held otherwise (ibid., p. 47).
73
For an extensive discussion of the Ajos ruling, see M. Madsen, H. Olsen and U. Šadl,
‘Competing Supremacies and Clashing Institutional Rationalities: The Danish Supreme
Court’s Decision in the Ajos Case and the National Limits of Judicial Cooperation’ (2017)
European Law II 137
c. Competence Limits II: National Constitutional Identities
The Solange jurisprudence as well as the ultra vires jurisprudence had both set
relative limits to European integration: so long as the Union acknowledged fundamental
rights and respected the competence limits as set by the EU Treaties,
European law could be given supremacy over conflicting national law.
This integration-friendly position however received an absolute ‘national’
limit in a third famous judgment of the German Constitutional Court: the
Lisbon Decision.74
In this decision, the Court asserted that even in a situation
where the German Parliament had agreed to a further transfer of competences
to the Union, that (democratic) choice was limited by the ‘constitutional identity’
of the German State.What was this ‘constitutional identity’, and why could
it not be limited? This was the answer given by the Constitutional Court:
From the perspective of the principle of democracy, the violation of the constitutional
identity codified in art. 79.3 of the Basic Law is at the same time an encroachment
upon the constituent power of the people. In this respect, the constituent power has
not granted the representatives and bodies of the people a mandate to dispose of
the identity of the constitution … The safeguarding of sovereignty, demanded by the
principle of democracy in the valid constitutional system prescribed by the Basic Law
in a manner that is open to integration and to international law, does not mean that
a pre-determined number or certain types of sovereign rights should remain in the
hands of the state … European unification on the basis of a treaty union of sovereign
states may, however, not be achieved in such a way that not sufficient space is left to
the Member States for the political formation of the economic, cultural and social living
conditions … Particularly sensitive for the ability of a constitutional state to democratically
shape itself are decisions on substantive and formal criminal law (1), on the
disposition of the monopoly on the use of force by the police within the state and by
the military towards the exterior (2), fundamental fiscal decisions on public revenue
and public expenditure, the latter being particularly motivated, inter alia, by social
policy considerations (3), decisions on the shaping of living conditions in a social state
(4) and decisions of particular cultural importance, for example on family law, the
school and education system and on dealing with religious communities (5).75
Invoking the idea of (national) democracy,the German Constitutional Court here
set absolute limits to European integration – at least European integration within
the scope of the German Constitution.In order to remain a‘sovereign State’– what
23 ELJ 140; and U. Neergaard and K. Engsig Sørensen,‘Activist Infighting among Courts
and Breakdown of Mutual Trust’ (2017) 36YEL 275.
74
Lisbon Decision (n. 64 above). For an excellent analysis of the decision, see D.Thym, ‘In
the Name of Sovereign Statehood:A Critical Introduction to the Lisbon Judgment of the
German Constitutional Court’ (2009) 46 CML Rev. 1795.
75
Lisbon Decision (n. 64 above), 332–41 (emphasis added). Article 79(3) of the German
Constitution is the so-called ‘Eternity Clause’ and states:‘Amendments to this Basic Law
affecting the division of the Federation into Länder, their participation in the legislative
process, or the principles laid down in Articles 1 and 20 shall be inadmissible.’
Constitutional Foundations138
an anachronistic idea in our global times! – national competences must guarantee
that ‘sufficient space’ is left for the national legislature.And, in order to guarantee
that guarantee, the German Court would engage in an ‘identify review’ that could,
in the future,result in‘Union law being declared inapplicable in Germany’.76
3. Legislative Pre-emption: Nature and Effect
The contrast between the academic presence of the supremacy doctrine and
the shadowy existence of the doctrine of pre-emption in the European law literature
is arresting.77
Everyone talks about supremacy but no one knows about
pre-emption! One reason for the under-theorised nature of the pre-emption
phenomenon has perhaps been a lack of clarity in distinguishing between the
two doctrines. But though related, the two doctrines ought to be kept apart.
Supremacy denotes the superior hierarchical status of the Union legal order
over the national legal orders and thus gives Union law the capacity to pre-empt
national law.The doctrine of pre-emption, on the other hand, denotes the actual
degree to which national law will be set aside by European law.
The supremacy clause does not determine ‘what constitutes a conflict between
state and federal law;it merely serves as a traffic cop,mandating a federal law’s survival
instead of a state law’s’.78
Pre-emption,on the other hand,specifies when such
conflicts have arisen, that is: to what extent Union law ‘displaces’ national law.The
important question behind the doctrine of pre-emption is this:to what degree will
European law displace national law on the same matter?The pre-emption doctrine
is thus a ‘relative’ doctrine: not all European law pre-empts all national law.
The doctrine of pre-emption is essentially a doctrine of normative conflict.
Conflicts arise where there is friction between two legal norms.The spectrum
of conflict is open-ended and ranges from purely hypothetical frictions to literal
contradictions between norms.There is no easy way to measure normative conflicts;and,in
an attempt to classify degrees of normative conflict,pre-emption categories
have been developed.Most pre-emption typologies will,to a great extent,
be arbitrary classifications.They will only try to reflect the various judicial reasons
and arguments created to explain why national law conflicts with European law.
Sadly,unlike the US Supreme Court,79
the European Court has yet to define and
76
Ibid., 338. On the relationship between the identity review and the Court’s Solange jurisprudence,
see G. Anagnostaras, ‘Solange III? Fundamental Rights Protection under the
National Identity Review’ (2017) 42 EL Rev. 234.
77
For an illustration of this point, see P. Craig and G. de Búrca, EU Law:Text, Cases and
Materials (Oxford University Press, 2015), which dedicates one (!) out of over 1,100 pages
to the doctrine of pre-emption; yet spends 50 pages on the supremacy doctrine.The previous
edition did not treat pre-emption at all.
78
S.  C. Hoke, ‘Preemption Pathologies and Civic Republican Values’ (1991) 71 Boston
University Law Review 685 at 755.
79
The US Supreme Court has summarised the different types of pre-emption in Pacific
Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461
US 190 (1983), 203–4 (quotations and references omitted) in the following manner:
‘Congress’ intent to supersede state law altogether may be found from a scheme of the
European Law II 139
name a pre-emption typology for its legal order.80
In linguistic alliance with US
constitutionalism,we shall,therefore,analyse the European Court’s jurisprudence
through the lens of the three pre-emption categories developed in that Union,
that is: field pre-emption, obstacle pre-emption, and rule pre-emption.A way to
visualise these pre-emption categories is shown in Figure 4.2.
a. Field Pre-emption
Field pre-emption refers to those situations where the Court does not investigate
any material normative conflict, but simply excludes the Member States
on the grounds that the Union has exhaustively legislated for the field. This
is the most powerful format of federal pre-emption: any national legislation
within the occupied field is prohibited.The reason for the total exclusion lies
in the perceived fear that any supplementary national action may endanger or
interfere with the strict uniformity of Union law. Underlying the idea of field
pre-emption is a purely abstract conflict criterion: national legislation conflicts
with the jurisdictional objective of the Union legislator to establish an absolutely
uniform legal standard.81
Figure 4.2 Pre-emption Types: Field, Obstacle, Rule Pre-emption
Field
Pre-emption
Obstacle
Pre-emption
Rule
Pre-emption
federal regulation so pervasive as to make reasonable the inference that Congress left no
room to supplement it,because the Act of Congress may touch a field in which the federal
interest is so dominant that the federal system will be assumed to preclude enforcement
of state laws on the same subject, or because the object sought to be obtained by federal
law and the character of obligations imposed by it may reveal the same purpose … Even
where Congress has not entirely displaced state regulation in a specific area, each state is
preempted to the extent that it actually conflicts with federal law. Such a conflict arises
when compliance with both federal and state regulations is a physical impossibility … or
where state law stands as an obstacle to the accomplishment and execution of the full purpose
and objectives of Congress.’The three identified pre-emption types are, respectively,
field pre-emption, rule pre-emption and obstacle pre-emption.
80
Unfortunately, the European Court has not (yet) committed itself to a principled preemption
statement like Pacific Gas & Electric Co. v. State Energy Resources Conservation &
Development Commission. It came close in Case 218/85, Association comité économique agricole
régional fruits et légumes de Bretagne v. A. Le Campion (CERAFEL) [1986] ECR 3513.
However, the Court has never extrapolated this pre-emption statement from its specific
agricultural policy context. Moreover, not even in the agricultural context has CERAFEL
become a standard point of reference in subsequent cases.
81
The total prohibition for national legislators will thus to a certain extent reproduce the
effects of a ‘real’ exclusive competence within the occupied field. On this point, see
Chapter 7, section 2(a).
Constitutional Foundations140
In order to illustrate the argumentative structure of field pre-emption, let
us take a closer look at the jurisprudence of the European Court. In Ratti,82
the ECJ found that a Union directive pre-empted any national measures falling
within its scope. Member States were therefore ‘not entitled to maintain,
parallel with the rules laid down by the Directive for imports, different rules
for the domestic market’. It was a consequence of the Union system that
‘a Member State may not introduce into its national legislation conditions
which are more restrictive than those laid down in the directive in question,
or which are even more detailed or in any event different’.83
The Union act
represented an exhaustive set of rules, and, thus, totally pre-empted national
legislators.
b. Obstacle Pre-emption
In contrast to field pre-emption,obstacle pre-emption – our second pre-emption
category – requires some material conflict between European and national law.
Unlike rule pre-emption,however,it refers to a form of argumentative reasoning
that does not base the exclusionary effect of European law on the normative
friction between a national law and a particular European rule.The Court will not
go into the details of the legislative scheme, but will be content in finding that
the national law somehow interferes with the proper functioning or impedes the
objectives of the Union legislation.The burden of proof for finding a legislative
conflict is, therefore, still relatively light.
Obstacle pre-emption reasoning can be found in Bussone.84
In the ‘absence of
express provisions on the compatibility with the organisation of the market established
by [the] Regulation … it is necessary to seek the solution to the question
asked in the light of the aims and objectives of the regulations [as such]’.The
Court noted that the Regulation did not seek to establish uniform prices, but
that the organisation was ‘based on freedom of commercial transactions under
fair competitive conditions’. ‘[S]uch a scheme precludes the adoption of any
national rules which may hinder, directly or indirectly, actually or potentially,
trade within the [Union].’85
The Court here employed a functional conflict criterion to oust supplementary
national legislation:those national measures that limit the scope,impede the
functioning or jeopardise the aims of the European scheme will conflict with the
latter.While not as abstract and potent as field pre-emption, the virility of this
functional conflict criterion is nonetheless remarkable.Where the Court selects
the ‘affect’ or ‘obstacle’ criterion, European law will widely pre-empt national
legislation.Any national law that reduces the effectiveness of the Union system
may be seen to be in conflict with European law.
82
Case 148/78, Ratti [1979] ECR 1629.
83
Ibid., paras. 26–7 (emphasis added).
84
Case 31/78, Bussone v. Italian Ministry of Agriculture [1978] ECR 2429.
85
Ibid., paras. 43, 46–7.
European Law II 141
c. Rule Pre-emption
The most concrete form of conflict will occur where national legislation literally
contradicts a specific European rule. Compliance with both sets of rules is (physically)
impossible.This scenario can be described as rule pre-emption.The violation
of Union legislation by the national measure follows from its contradicting
a Union rule ‘fairly interpreted’. Put negatively, where the national law does not
contradict a specific Union provision, it will not be pre-empted.
We can find an illustration of this third type of pre-emption in Gallaher.86
Article
3(3) of the Union Directive on the labelling of tobacco products had required that
health warnings should cover‘at least 4% of the corresponding surface’.Reading the
‘at least’qualification as a provision allowing for stricter national standards,the British
government had tightened the obligation on manufacturers by stipulating that the
specific warning ought to cover 6 per cent of the surfaces on which they are printed.
Was this higher national standard supplementing the European rule preempted
and, thus, to be disapplied? The European Court did not think so in
an answer that contrasts strikingly with its previous ruling in Ratti. Interpreting
Articles 3 and 8 of the directive, the European Court found that ‘[t]he expression
“at least” contained in both articles must be interpreted as meaning that,
if they consider it necessary, Member States are at liberty to decide that the
indications and warnings are to cover a greater surface area in view of the level
of public awareness of the health risks associated with tobacco consumption’.87
The Court – applying a rule pre-emption criterion – thus allowed the stricter
national measure.The national law did not contradict the Union rule and the
national rules were therefore not pre-empted by the European standard.
4. Constitutional Limits to Union Pre-emption
When exercising a competence, the Union legislator is generally free to determine
to what extent it wishes to pre-empt national law.However,that legislative
freedom could – theoretically – be restricted in two ways. First, it could make
a difference if the Union legislator used a regulation instead of a directive as a
Union act. For a long time, it was indeed thought that a regulation would automatically
lead to field pre-emption, while a directive could never do so.We shall
examine the pre-emptive capacity of the Union’s various legal instruments and
see that this view is – presently – mistaken.88
However, a second constitutional
limit to the pre-emptive effect of Union legislation might be found in the type
of competence given to the Union.
Let us look at both (potential) limitations in turn.
86
Case C-11/92, The Queen v. Secretary of State for Health, ex p. Gallaher Ltd, Imperial Tobacco
Ltd and Rothmans InternationalTobacco (UK) Ltd [1993] ECR I-3545.
87
Ibid., para. 20.
88
For an argument in favour of a reconceptualisation of the directive, see R. Schütze,‘The
Morphology of Legislative Power in the European Community:Legal Instruments and the
Federal Division of Powers’ (2006) 25 YEL 91, conclusion.
Constitutional Foundations142
a. Union Instruments and Their Pre-emptive Capacity
When the Union was born, its various legal instruments were seen to structure
the vertical division of power between the European and the national level.
Some early commentators thus argued that for each policy area the Treaty had
fixed a specific format of legislative or regulatory intervention.89
This reading of
the various legal instruments has occasionally been expressed by the European
Court of Justice.90
Will this mean that the use of a particular instrument limits
the Union legislator from pre-empting the Member States?This section investigates
the pre-emptive quality of the Union’s three ‘regulatory’ instruments: regulations,
directives and international agreements.
aa. The Pre-emptive Capacity of Regulations
Regulations are binding in their entirety, and have been characterised as the
‘most integrated form’ of European legislation.91
Typically considered to be
the instrument of uniformity, will regulations automatically field pre-empt all
national law within their scope of application?
The early jurisprudence of the ECJ indeed emphasised their field pre-emptive
nature. In order to protect their ‘direct applicability’ within the national legal
orders, the Court thus employed a strong pre-emption criterion. This initial
approach is best illustrated in Bollmann.92
Discussing the effect of a regulation
on the legislative powers of the Member States, the ECJ found that since a
regulation ‘is directly applicable in all Member States, the latter, unless otherwise
expressly provided, are precluded from taking steps, for the purposes of
applying the regulation, which are intended to alter its scope or supplement its provi-
sions’.93
Early jurisprudence thus suggested that all national rules that fell within
the scope of a regulation were automatically pre-empted.94
Any supplementary
national action would be prohibited.
It was this early jurisprudence that created the myth that regulations would automatically
field pre-empt national law.Their direct applicability was wrongly associated
with field pre-emption.95
But subsequent jurisprudence quickly disapproved
89
See P. Pescatore, The Law of Integration: Emergence of a New Phenomenon in International
Relations, Based on the Experience of the European Communities (Sijthoff, 1974), 62–3; V.
Constantinesco,Compétences et pouvoirs dans les communautés européennes:contribution à l’étude
de la nature juridique des communautés (Pichon & Durand-Auzias, 1974), 85.
90
Case C-91/92, Faccini Dori v. Recreb [1994] ECR I-3325.
91
G. Gaja, P. Hay and R. D. Rotunda, ‘Instruments for Legal Integration in the European
Community: A Review’, in M. Cappelletti, M. Seccombe and J. Weiler (eds.), Integration
through Law:Europe and theAmerican Federal Experience,5 vols.(de Gruyter,1986),I,113 at 124.
92
Case 40/69, Hauptzollamt Hamburg Oberelbe v. Bollmann [1970] ECR 69.
93
Ibid., para. 4 (emphasis added).
94
Case 18/72, Granaria v. Produktschap voorVeevoeder [1972] ECR 1163, para. 16.
95
‘This capacity to pre-empt or preclude national measures can be regarded as a characteristic
peculiar to a Regulation (as opposed to any other form of [Union] legislation) and may
shed some light on the nature of direct applicability under Article [288] of the Treaty’ (M.
Blumental,‘Implementing the Common Agricultural Policy:Aspects of the Limitations on
the Powers of the Member States’ (1984) 35 Northern Ireland Legal Quarterly 28–51 at 39).
European Law II 143
of the simplistic correlation. In Bussone, the Court did not find the relevant regulation
to field pre-empt national law, but analysed whether national laws were
‘incompatible with the provisions of that regulation’.96
And in Maris v. Rijksdienst voor
Werknemerspensioenen,97
the Court clarified that this incompatibility could sometimes
require a material conflict as a regulation would only preclude ‘the application
of any provisions of national law to a different or contrary effect’.98
Regulations
thus do not automatically field pre-empt.They will not always achieve‘exhaustive’
legislation. On the contrary, a regulation may confine itself to laying down minimum
standards.99
It is thus misleading to classify regulations as instruments of strict
uniformity.100
While Member States are precluded from unilateral‘amendment’or
‘selective application’,101
these constitutional obligations apply to all Union acts
and do not specifically characterise the format of regulations.
bb. The Pre-emptive Capacity of Directives
Directives shall be binding ‘as to the result to be achieved’ and ‘leave to the
national authorities the choice of form and methods’.102
Binding as to the result
to be achieved, the instrument promised to respect the Member States’ freedom
to select a national path to a European end.The very term ‘directive’ suggested
an act that would confine itself to ‘directions’, and the instrument’s principal use
for the harmonisation of national law reinforced that vision.
Do directives thus represent broad-brush ‘directions’ that guarantee a degree
of national autonomy? An early academic school indeed argued this view.103
96
Case 31/78, Bussone v. Italian Ministry of Agriculture [1978] ECR 2429, paras. 28–31.
97
Case 55/77, M. Maris, wife of R. Reboulet v. Rijksdienst voor Werknemerspensioenen [1977]
ECR 2327.
98
Ibid., paras. 17–18 (emphasis added).
99
Council Regulation No. 259/93 on the supervision and control of shipments of waste
within, into and out of the European Community ([1993] OJ L 30, p. 1) provides such
an example of a ‘minimum harmonisation’ regulation.The regulation has been described
as ‘far from providing for a complete harmonisation of the rules governing the transfer
of waste, and might in part even be regarded (in the words of one commentator) as an
“organised renationalisation” of the subject’ (Advocate General F. Jacobs, Case C-187/93,
Parliament v. Council [1994] ECR I-2857, para. 22).
100
Contra, J.  A. Usher, EC Institutions and Legislation (Longman, 1998), 130: ‘In effect
Regulations could be said simply,if inelegantly,to amount to a“keep out”sign to national
legislation.’
101
Case 39/72, Commission v. Italy [1973] ECR 101, para. 20.
102
Art. 288(3) TFEU.
103
See R. W. Lauwaars, Lawfulness and Legal Force of Community Decisions (Sijthoff, 1973)
30–1 (emphasis added):‘But can this be carried so far that no freedom at all is left to the
member States? In my opinion it follows from Art.[288] that the directive as a whole must
allow member States the possibility of carrying out the rules embodied in the directive
in their own way.A directive that constitutes a uniform law is not compatible with this
requirement because, by definition, it places a duty on the member States to take over
the uniform text and does not allow any freedom as to choice of form and method’; and
Gaja, Hay and Rotunda,‘Instruments for Legal Integration’ (n. 91 above), 133 (emphasis
added):‘The detailed character of many provisions may be inconsistent with the concept of
directive as defined in the [FEU] Treaty.’
Constitutional Foundations144
These voices championed a constitutional frame limiting the directive’s preemptive
effect.To be a ‘true’ directive, it would need to leave a degree of legislative
freedom, and as such could never field pre-empt national legislation
within its scope of application. This position thus interpreted the directive in
competence terms: the Union legislator would act ultra vires, if it went beyond
the constitutional frame set by a directive. But when precisely the pre-emptive
Rubicon was crossed remained shrouded in linguistic mist.
In any event, past constitutional practice within the Union legal order has
never endorsed a constitutional limit to the pre-emptive effect of directives.
On the contrary, in Enka the Court of Justice expressly recognised a directive’s
ability to be ‘exhaustive’ or ‘complete’ harmonisation, wherever strict legislative
uniformity was necessary.104
Directives can – and often do – occupy a regulatory
field.105
Their pre-emptive capacity therefore equals that of regulations.
The national choice, referred to in Article 288[3]TFEU indeed only guarantees
the power of Member States to implement the European content into national
form:‘[T]he choice is limited to the kind of measures to be taken; their content is
entirely determined by the directive at issue.Thus the discretion as far as form
and methods are concerned does not mean that Member States necessarily have
a margin in terms of policy making.’106
cc. The Pre-emptive Capacity of International Agreements
The pre-emptive effect of Union agreements may be felt in two ways. First,
directly effective Union agreements will pre-empt inconsistent national law.107
But, second, self-executing international obligations of the Union will also preempt
inconsistent European secondary law.The pre-emptive potential of international
agreements over internal European law follows from the ‘primacy’ of the
former over the latter.108
For the Court considers international agreements of
the Union hierarchically above ordinary Union secondary law.
104
Case 38/77, Enka BV v. Inspecteur der invoerrechten en accijnzen [1977] ECR 2203, paras.
11– 12:‘It emerges from the third paragraph of Article [288] of theTreaty that the choice
left to the Member States as regards the form of the measures and the methods used in
their adoption by the national authorities depends upon the result which the Council or
the Commission wishes to see achieved. As regards the harmonisation of the provisions
relating to customs matters laid down in the Member States by law, regulation or administrative
action, in order to bring about the uniform application of the common customs
tariff it may prove necessary to ensure the absolute identity of those provisions’ (ibid., paras.
11–12).
105
E.g. Case 148/78, Ratti [1979] ECR 1629.
106
S. Prechal, Directives in EC Law (Oxford University Press, 2005), 73.
107
E.g. Case C-61/94, Commission v. Germany (IDA) [1996] ECR I-3989, where the
European Court did find a national measure pre-empted by an international agreement.
The agreement at stake was the international dairy agreement and the Court found ‘that
Article 6 of the annexes precluded the Federal Republic of Germany from authorising
imports of dairy products, including those effected under inward processing relief
arrangements, at prices lower than the minimum’ (ibid., para. 39).
108
Ibid., para. 52.
European Law II 145
Let us solely concentrate on the first aspect: the pre-emptive ability of Union
agreements in relation to national law.Will the pre-emptive effect of an international
norm be the same as that of an identically worded provision within a
regulation or a directive? The Court has responded to this question in an indirect
manner. In Polydor,109
it was asked to rule on the compatibility of the 1956
British Copyright Act with the agreement between the European Union and
Portugal.The bilateral free trade agreement envisaged that quantitative restrictions
on imports and all measures having an equivalent effect to quantitative
restriction should be abolished, but exempted all those restrictions justified on
the grounds of the protection of intellectual property. Two importers of pop
music had been charged with infringement of Polydor’s copyrights and had
invoked the directly effective provisions of the Union agreement as a sword
against the British law.
Would the Union agreement pre-empt the national measure? If the Court
had projected the ‘internal’ Union standard established by its jurisprudence in
relation to Articles 34–6 TFEU, the national measure would have been preempted.
But the Court did not. It chose to interpret the identically worded provision
in the Union agreement more restrictively.110
Identical text will,therefore,
not guarantee identical interpretation:
[T]he fact that the provisions of an agreement and the corresponding [Union] provisions
are identically worded does not mean that they must necessarily be interpreted
identically. An international treaty is to be interpreted not only on the basis of its
wording, but also in the light of its objectives.111
Context will thus prevail over text.The context or function of the international
treaty will be decisive.Only where an international norm fulfils the‘same
function’ as the internal European norm, will the Court project the ‘internal’
pre-emptive effect to the international treaty.112
But, while the Court may
109
Case 270/80, Polydor and others v. Harlequin and others [1982] ECR 329.
110
Ibid., paras. 15, 18–19.
111
Opinion 1/91 (EEA Draft Agreement) [1991] ECR I-6079, para. 14. In relation to the
EEA,the Court found that it was‘established on the basis of an international treaty which,
essentially, merely creates rights and obligations as between the Contracting Parties and provides
for no transfer of sovereign rights to the inter-governmental institutions which it sets up’
(ibid., para. 20, emphasis added).The EU Treaty, by way of contrast, constituted ‘the constitutional
charter of a [Union] based on the rule of law’, one of whose particular characteristics
would be ‘the direct effect of a whole series of provisions which are applicable to
their nationals’ (ibid., para. 21).
112
An illustration can be found in Case 17/81,Pabst & Richarz KG v.Hauptzollamt Oldenburg
[1982] ECR 1331, where the ECJ was asked to compare Art. 53(1) of the association
agreement between the Union and Greece with the relevant provision in the TFEU:
‘That provision, the wording of which is similar to that of Article [110] of the Treaty,
fulfils, within the framework of the association between the [Union] and Greece, the
Constitutional Foundations146
apply a milder form of pre-emption to international agreements, it has not
announced any constitutional limits to the pre-emptive capacity of international
agreements.
In sum,Union agreements have the capacity to pre-empt inconsistent national
law.The pre-emptive potential of international agreements however appears to
be milder than equivalently worded internal legislation. Only where the agreement
has the same function as an internal European norm will the Court accept
the same pre-emptive effect that would be triggered by identically worded
European law.
b. Excursus: Competence Limits to Pre-emption
When legislating, the Union legislator is typically free to decide what preemption
category it wishes to choose. Union discretion thus determines the
degree to which national legislators are pre-empted by European legislation.
However, there are legislative competences – to be discussed in Chapter 7 –
that seem to restrict this liberty. For certain policy areas the Union legislator is
indeed limited to setting minimum standards only.The constitutional relationship
between the European and the national legislator is here essentially this:
the EU Treaty guarantees the ability of the national legislator to adopt higher
standards; and this seems to constitutionally rule out field pre-emption for these
competences. A second variant of constitutionally limited pre-emption flows
from the Union’s ‘complementary competences’.They will also be discussed in
Chapter 7 and typically confine the Union legislator to adopt ‘incentive measures’
that exclude all harmonisation within the field.113
The central question for both types of competence is this: how much legislative
space will the European Union need to leave to the national level? Do
minimum harmonisation competences prevent the Union from ever laying
down exhaustive standards with regard to a specific legislative measure? And can
‘incentive measures’ pre-empt national laws – even though a complementary
competence excludes all harmonisation within the field? We shall explore these
questions in Chapter 7 when looking specifically at the competence categories
of the Union.
same function as that of Article [110] … It accordingly follows from the wording of
Article 53(1),cited above,and from the objective and nature of the association agreement
of which it forms part that that provision precludes a national system of relief from providing
more favourable tax treatment for domestic spirits than for those imported from
Greece’ (ibid., paras. 26–7).While the ECJ had found that the European Treaties and the
EEA Treaty had different purposes and functions, the General Court seemed to favour a
parallel interpretation of the EEA Agreement with identically worded provisions of the
European Treaties and secondary law in Case T-115/94, Opel Austria GmbH v. Council
[1997] ECR II-39.
113
On this point, see Chapter 7, section 2(d).
European Law II 147
Conclusion
The doctrine of direct effect demands that a national court applies European
law; and the doctrine of supremacy demands that a national court disapplies
national law that conflicts with European law. Direct effect and supremacy are
nonetheless not twin doctrines. (There can be direct effect without supremacy.)
The previous chapter explored the doctrine of direct effect, this chapter
concentrated on the doctrine of supremacy and its twin doctrine: the
doctrine of pre-emption. The doctrine of pre-emption determines to what
extent national law must be disapplied or displaced. It is a theory of legislative
conflict.The doctrine of supremacy is a theory of conflict resolution.The two
doctrines are vital for any Union of States with overlapping legislative spheres.
For the European legal order, the supremacy of European law means that all
Union law prevails over all national law. The absolute nature of the supremacy
doctrine is, however, contested by the Member States.While they generally
acknowledge the supremacy of European law, they have insisted on national
constitutional limits. Is this relative nature of supremacy a ‘novelty’ or ‘aber-
ration’?114
This view is introverted and unhistorical when compared with the
constitutional experiences of the United States.115
Indeed,the normative ambivalence
surrounding the supremacy principle in the European Union is part and
parcel of Europe’s federal nature.116
What is the principle of pre-emption? As we saw above, the doctrine of
pre-emption complements the supremacy of Union law. It determines when
a conflict between Union law and national law has arisen; and this is a relative
question.The question is not whether European law pre-empts national law
but to what degree. Not all European law will thus displace all national law.
So, when will a conflict between European and national law arise?There is no
absolute answer to this question.The Union legislator and the European Court
of Justice will not always attach the same conflict criterion to all European
legislation. Sometimes a purely ‘jurisdictional’ conflict will be enough to preempt
national law. In other cases, some material conflict with the European
legislative scheme is necessary. Finally, the Court may insist on a direct conflict
with a specific Union rule. In parallel to US constitutionalism we consequently
distinguished three pre-emption categories within the Union legal
order: field pre-emption, obstacle pre-emption and rule pre-emption.
114
See N.Walker, ‘The Idea of Constitutional Pluralism’ (2002) 65 MLR 317 at 338.This
terribly narrow-minded – ‘Eurocentric’ – view strikingly ignores the US experience, in
which the Union and the States were seen to have ‘constitutional’ claims and in which
the ‘Union’ was – traditionally – not (!) conceived in statist terms (see E. Zoeller,‘Aspects
Internationaux du droit constitutionnel.Contribution à la théorie de la féderation d’états’
(2002) 194 Recueil des Cours de l’Académie de la Haye 43).
115
Schütze,‘Federalism as Constitutional Pluralism’ (n. 49 above).
116
On this point, see Chapter 2.
Constitutional Foundations148
Are there any constitutional limits on the freedom of the Union legislator
to pre-empt national law? We saw above that there may indeed exist limits that
some competences impose; yet no such limits are inherent on the type of legislative
instrument that the Union uses.
FURTHER READING
Books
K. Alter,Establishing the Supremacy of European Law:The Making of an International Rule
of Law in Europe (Oxford University Press, 2001)
B. Davies, Resisting the European Court of Justice: West Germany’s Confrontation with
European Law 1949–1979 (Cambridge University Press, 2014)
A. Oppenheimer, The Relationship between European Community Law and National
Law (Cambridge University Press, 2004)
N. Walker (ed.), Sovereignty inTransition (Hart, 2003)
Articles (and Chapters)
P. Craig, ‘Britain in the European Union’, in J. Jowell and D. Oliver (eds.), The
Changing Constitution (Oxford University Press, 2015), 104
M.Dougan,‘WhenWorlds Collide! CompetingVisions of the Relationship between
Direct Effect and Supremacy’ (2007) 44 CML Rev. 931
U.Everling,‘The Maastricht Judgment of the German Federal Constitutional Court
and Its Significance for the Development of the European Union’ (1994) 14
YEL 1
J. Komárek, ‘Czech Constitutional Court Playing with Matches: The Czech
Constitutional Court Declares a Judgment of the Court of Justice of the EU
UltraVires’ (2012) 8 European Constitutional Law Review 323
R. Kovar,‘The Relationship between Community Law and National Law’, in EC
Commission (ed.), ThirtyYears of Community Law (EC Commission, 1981), 109
K. Lenaerts andT.Corthaut,‘Of Birds and Hedges:The Role of Primacy in Invoking
Norms of EU Law’ (2006) 31 EL Rev. 287
M. Madsen, H. Olsen and U. Šadl, ‘Competing Supremacies and Clashing
Institutional Rationalities: The Danish Supreme Court’s Decision in the Ajos
Case and the National Limits of Judicial Cooperation’ (2017) 23 ELJ 140
M.Paydandeh,‘Constitutional Review of EU Law after Honeywell:Contextualising
the Relationship between the German Constitutional Court and the EU Court
of Justice’ (2011) 48 CML Rev. 9
W. Sadurski, ‘“Solange, Chapter 3”: Constitutional Courts in Central Europe –
Democracy – European Union’ (2008) 14 ELJ 1
D. Thym, ‘In the Name of Sovereign Statehood: A Critical Introduction to the
Lisbon Judgment of the German Constitutional Court’ (2009) 46 CML Rev.
1795
M. Waelbroeck, ‘The Emergent Doctrine of Community Preemption: Consent
and Redelegation’, in T. Sandalow and E. Stein (eds.), Courts and Free Markets:
European Law II 149
Perspectives from the United States and Europe, 2 vols. (Oxford University Press,
1982), II, 548
Cases on the Website
Case 6/64, Costa v. ENEL; Case 40/69, Bollmann; Case 11/70, Internationale
Handelsgesellschaft; Case 38/77, Enka; Case 55/77, Maris; Case 106/77, Simmenthal
II; Case 31/78, Bussone; Case 148/78, Ratti; Case 270/80, Polydor; Case C-11/92,
Gallaher; Case C-350/92, Spain v. Council; Cases C-10–22/97, INCOGE’90; Case
C-318/98, Fornasar; Case C-377/98, Netherlands v. Parliament and Council; Case
C-402/05P, Kadi; German Constitutional Court Cases: Wünsche Handellsgesellschaft,
Maastricht, Honeywell, Lisbon; Danish Supreme Court: Dansk Industri
10
Judicial Powers I
(Centralised) European Procedures
Introduction
When compared to the legislative and executive branches, the judiciary
looks like a poor relation. For the classic civil law tradition reduces courts
Contents
Introduction 351
1. Annulment Powers: Judicial Review 355
a. The Existence of a ‘Reviewable’ Act 357
b. Legitimate Grounds for Review 358
aa. ‘Formal’ and ‘Substantive’ Grounds 359
bb. In Particular: The Proportionality Principle 360
c. Legal Standing before the European Court 362
aa. The Rome Formulation and Its Judicial Interpretation 363
bb. The Lisbon Formulation and Its Interpretative Problems 367
d. The Indirect Review of European Law 371
aa. Collateral Review: The Plea of Illegality 371
bb. Indirect Review through Preliminary Rulings 372
2. Remedial Powers: Liability Actions 374
a. Procedural Conditions: From Dependent to Independent Action 375
b. Substantive Conditions: From Schöppenstedt to Bergaderm 377
3. Adjudicatory Powers I: Enforcement Actions 379
a. Enforcement Actions against Member States 379
aa. The Procedural Conditions under Article 258 380
bb. Judicial Enforcement through Financial Sanctions 382
b. Enforcement Actions against the Union: Failure to Act 383
4. Adjudicatory Powers II: Preliminary Rulings 386
a. Paragraph 1: The Jurisdiction of the European Court 388
b. Paragraph 2: The Conditions for a Preliminary Ruling 389
aa. ‘Who’: National Courts and Tribunals 389
bb. ‘What’: Necessary Questions 392
c. Paragraph 3: The Obligation to Refer and ‘Acte clair’ 394
d. The Legal Nature of Preliminary Rulings 398
Conclusion 400
Further Reading 401
Governmental Powers352
to ‘the mouth that pronounces the words of the law’,1
and even the common
law tradition finds that ‘[w]hoever attentively considers the different
departments of power must perceive, that in a government in which they
are separated from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the constitution’.2
In the eyes of both traditions, the judiciary is thus ‘the least dangerous
branch’.3
This traditional view originates in the eighteenth century.It reduces the judiciary
to its adjudicatory function, that is: the power to decide disputes between
private parties.Yet this position was to change dramatically in the nineteenth
and twentieth centuries.4
Courts not only succeeded in imposing their control
over the executive branch; some States even allowed for the constitutional
review of legislation.5
These judicial‘victories’over the executive and legislative
branch were inspired by the idea that all public power should be subject to the
‘rule of law’; and this idea would, in some legal orders, include the sanctioning
power of the judiciary to order a State to make good damage caused by a public
‘wrong’.6
A modern definition of the judicial function therefore needs to treat three
core powers, which – in descending order – are: the power to annul legislative
or executive acts, the power to remedy public wrongs and the power to adjudicate
legal disputes between parties.
The following chapters explores these three judicial prerogatives within the
Union legal order. Importantly: the judicial function is here ‘split’ between the
Court of Justice of the European Union and the national courts. For the Union
legal order decided, early on, to recruit national courts in the exercise of some
judicial functions – and has thereby turned them into decentralised ‘European’
1
C. Montesquieu, The Spirit of the Laws, ed. and translated A. M. Cohler et al. (Cambridge
University Press, 1989), 163.
2
A. Hamilton, Federalist 78 in A. Hamilton et al., The Federalist, ed. T. Ball (Cambridge
University Press,2003),377 at 378.The quote continues:‘The judiciary … has no influence
over either the sword or the purse; no direction either of the strength or of the wealth of
the society, and can take no active resolution whatever. It may truly be said to have neither
Force norWill,but merely judgment;and must ultimately depend upon the aid of the executive
arm even for the efficacy of its judgments.’
3
For a famous analysis of this claim, see A. Bickel, The Least Dangerous Branch:The Supreme
Court at the Bar of Politics (Yale University Press, 1986).
4
For a comparative constitutional perspective on the rise of the judiciary, see M. Cappelletti,
Judicial Review in the ContemporaryWorld (Bobbs-Merrill, 1971).
5
The US Supreme Court for example has, long ago, claimed the power to ‘unmake’ a law
adopted by the legislature, see Marbury v. Madison, 5 US 137 (1803).
6
This challenged the classic common law principle that the ‘sovereign can do no wrong’. In
the words of W. Blackstone, Commentaries on the Laws of England (Forgotten Books, 2010),
Book III, ch. 17, 254:‘That the king can do no wrong, is a necessary and fundamental principle
of the English constitution: meaning only, as has formerly been observed, that, in the
first place, whatever may be amiss in the conduct of public affairs is not chargeable.’
Judicial Powers I 353
courts.This judicial federalism has indeed been a cornerstone of the Union and
will be discussed in Chapter 11.
This chapter, however, will concentrate on the ‘centralised’ powers of the
Court of Justice of the European Union (see Figure 10.1). Section 1 starts with
an analysis of its annulment power.The power of judicial review is the founding
pillar of a Union ‘based on the rule of law’.7
Section 2 moves to the remedial
power of the European Court,8
and the question when the Union legislative
or executive branches will be liable to pay damages for an illegal action. Finally,
sections 3 and 4 investigate the Court’s power to adjudicate disputes between
parties. In addition to a number of direct actions (direct actions start directly in
the European Court), the EU Treaties here envisage an indirect action starting
in the national courts:the preliminary reference procedure.This procedure is the
judicial cornerstone of the Union’s cooperative federalism. For it combines the
central interpretation of Union law by the Court of Justice with the decentralised
application of European law by the national courts.
It goes without saying that this chapter cannot discuss all judicial competences
of the European Court.An overview of the various judicial powers and
procedures in the TFEU can nevertheless be found in Table 10.1.9
Importantly,
the EUTreaties here acknowledge two general jurisdictional limitations:Articles
275 and 276TFEU.The former declares that the European Court will generally
‘not have jurisdiction with respect to the provisions relating to the common
foreign and security policy nor with respect to acts adopted on the basis of
those provisions’.10
By contrast, the latter article decrees that the European
Court ‘shall have no jurisdiction to review the validity or proportionality of
operations carried out by the police or other law-enforcement services of a
Member State or the exercise of the responsibilities incumbent upon Member
States with regard to the maintenance of law and order and the safeguarding of
internal security’.11
These two ‘holes’ in the judicial competences of the Court
are deeply regrettable, for they effectively replace the ‘rule of law’ with the rule
of the executive.
7
Case 294/83, Parti Écologiste ‘Les Verts’ v. European Parliament [1986] ECR 1339, para. 23:
‘The European [Union] is a [union] based on the rule of law, inasmuch as neither its
Member States nor its institutions can avoid a review of the question whether the measures
adopted by them are in conformity with the basic constitutional charter, the [Treaties].’
8
The remedial powers of the national courts for breaches of European law by the Member
States will be discussed in Chapter 11, section 3.
9
Part Six – Title I – Chapter 1 – Section 5 TFEU.The section is – roughly – divided into
an ‘institutional’ part (Arts. 251–7), and a ‘competence and procedure’ part (Arts. 258–81).
10
Ibid., Art. 275(1) (emphasis added).There are two exceptions within that exception.The
first relates to the power of the Court to review the borderline,established by Art.40TEU,
between the CFSP and the Union’s special external policies.Second,a CFSP act is reviewable,
where it is claimed to restrict the rights of a natural or legal person.The latter aspect
will be discussed in (online) Chapter 18B, section 3(d).
11
Art. 276 TFEU (emphasis added). Table10.1JudicialCompetencesandProcedures
JudicialCompetencesandProcedures(Articles258–81TFEU)
Article258EnforcementActionBroughtbytheCommissionArticle268JurisdictioninDamagesActionsunderArticle 340
Article259EnforcementActionBroughtbyAnotherMemberStateArticle269JurisdictionforArticle7TEU
Article260ActionforaFailuretoComplywithaCourtJudgmentArticle270JurisdictioninStaffCases
Article261
Article262
JurisdictionforPenaltiesinRegulations
(Potential)JurisdictionforDisputesRelatingtoEuropean
IntellectualPropertyRights
Article271
Article272
JurisdictionforCasesInvolvingtheEuropeanInvestmentBankandthe
EuropeanCentralBank
JurisdictionGrantedbyArbitrationClauses
Article263ActionforJudicialReviewArticle273JurisdictionGrantedbySpecialAgreementbetweentheMemberStates
Article264ConsequencesofanAnnulmentRulingArticle274JurisdictionofNationalCourtsInvolvingtheUnion
Article265(Enforcement)ActionfortheUnion’sFailureto ActArticle275Non-jurisdictionfortheUnion’sCFSP
Article266ConsequencesofaFailuretoActRulingArticle276JurisdictionalLimitswithintheAreaofFreedom,SecurityandJustice
Article267PreliminaryRulingsArticle277Collateral(Judicial)ReviewforActsofGeneralApplication...
ProtocolNo.3ontheStatuteoftheCourtofJusticeoftheEuropeanUnion
RulesofProcedureoftheCourtofJustice
RulesofProcedureoftheGeneralCourt
Judicial Powers I 355
1. Annulment Powers: Judicial Review
The most powerful prerogative of a court is the power to‘unmake’law,that is:to
annul an act that was adopted by the legislative or executive branches.The competence
and procedure for judicial review in the European Union legal order is
set out in Article 263 TFEU.The provision reads:
Figure 10.1 European Court: Powers (Flowchart)
Judicial Powers
Annulment Liability Adjudication
Direct Action
Article 263
(Article 277)
Article 268
(Article 340)
Indirect Action Direct Action Indirect Action
Article 267Article 267
Article 265
Failure to
Act by Union
Article 258
Article 259
Enforcement
Action against
Member States
[1] The Court of Justice of the European Union shall review the legality of legislative
acts, of acts of the Council, of the Commission and of the European
Central Bank, other than recommendations and opinions, and of acts of the
European Parliament and of the European Council intended to produce legal
effects vis-à-vis third parties. It shall also review the legality of acts of bodies,
offices or agencies of the Union intended to produce legal effects vis-à-vis third
parties.
[2] It shall for this purpose have jurisdiction in actions brought by a Member State,
the European Parliament, the Council or the Commission on grounds of lack of
competence, infringement of an essential procedural requirement, infringement
of the Treaties or of any rule of law relating to their application, or misuse of
powers.
[3] The Court shall have jurisdiction under the same conditions in actions brought
by the Court of Auditors, by the European Central Bank and by the Committee
of the Regions for the purpose of protecting their prerogatives.
Governmental Powers356
Where an action for judicial review is well founded,the Court of Justice‘shall
declare the acts concerned to be void’.13
The Union will henceforth‘be required
to take the necessary measures to comply with the judgment of the Court of
Justice of the European Union’;14
and may even be subject to compensation for
damage caused by the illegal act.15
What are the procedural requirements for a judicial review action? Article
263 follows a complex structure; and the easiest way to understand its logic is
to break it down into four constituent components. Paragraph 1 concerns the
question whether the Court has the power to review particular types of Union
acts.Paragraph 2 tells us why there can be judicial review,that is:on what grounds
one can challenge the legality of a European act. Paragraphs 2–4 concern the
question of who may ask for judicial review and thereby distinguishes between
three classes of applicants. Finally, paragraph 6 tells us when an application for
review must be made, namely, within two months. After that, a Union act
should – theoretically – be immune and permanent. (But, as we shall see below,
while direct review is henceforth expired, an applicant may still be entitled to
challenge the legality of a Union act indirectly.)
This section looks at the first three constitutional components before analysing
the indirect routes to the judicial review of European law.
12
The omitted para. 5 lays down special rules for Union agencies and bodies. It states:‘Acts
setting up bodies, offices and agencies of the Union may lay down specific conditions
and arrangements concerning actions brought by natural or legal persons against acts of
these bodies, offices or agencies intended to produce legal effects in relation to them.’
The following section will not deal with this special aspect of judicial review. Importantly,
however, for some agencies, the review of an administrative decision may start internally
with a‘Board ofAppeal’.For an excellent analysis of this administrative review stage within
agencies, see P. Chirulli and L. de Lucia, ‘Specialised Adjudication in EU Administrative
Law:The Boards of Appeal of EU Agencies’ (2015) 40 Europ EL Rev. 832.
13
Art.264(1)TFEU.However,according toArt.264(2)TFEU,the Court can – exceptionally –
‘if it considers this necessary,state which of the effects of the act which it has declared void
shall be considered as definitive’.
14
Ibid.,Art. 266.
15
Ibid.,Arts. 268 and 340. On this point, see section 2 below.
[4] Any natural or legal person may, under the conditions laid down in the first
and second paragraphs, institute proceedings against an act addressed to
that person or which is of direct and individual concern to them, and against
a regulatory act which is of direct concern to them and does not entail implementing
measures …
[6] The proceedings provided for in this Article shall be instituted within two
months of the publication of the measure, or of its notification to the plaintiff,
or, in the absence thereof, of the day on which it came to the knowledge of the
latter, as the case may be.12
Judicial Powers I 357
a. The Existence of a ‘Reviewable’ Act
Paragraph 1 determines whether there can be judicial review.This question has
two dimensions.The first dimension relates to whose acts may be challenged; the
second dimension clarifies which acts might be reviewed.
Whose acts can be challenged in judicial review proceedings? According to
Article 263(1) TFEU, the Court is entitled to review ‘legislative acts’, that is:
acts whose authors are the European Parliament and the Council both following
the ordinary or a special legislative procedure. It can also review executive
acts of all Union institutions and bodies – except for the Court of Auditors. By
contrast, the Court cannot judicially review acts of the Member States.And this
prohibition includes unilateral national acts, as well as international agreements
of the Member States. (The EuropeanTreaties thus cannot – despite their being
the foundation of European law – ever be reviewed by the Court.) So, even if
national acts or international agreements of the Member States fall within the
scope of European law, as collective acts of the Member States, they cannot be
attributed to the Union institutions, and as such are beyond the review powers
of the European Court.16
Which acts of the Union institutions can be reviewed? Instead of a positive
definition, Article 263(1) only tells us which acts cannot be reviewed.
Accordingly, there can be no judicial review for ‘recommendations’ or ‘opinions’.The
reason for this exclusion is that both instruments ‘have no binding
force’,17
and there is thus no need to challenge their legality.18
The provision
equally excludes judicial review for acts of the European Parliament, the
European Council, and of other Union bodies not ‘intended to produce legal
effects vis-à-vis third parties’.The rationale behind this limitation is to exclude
acts that are ‘internal’ to an institution. And despite being textually limited
to some Union institutions, the requirement of an ‘external’ effect has been
extended to all Union acts.
The Court has equally clarified that purely preparatory acts of the Commission
or the Council cannot be challenged because ‘an act is open to review only if
it is a measure definitely laying down the position of the Commission or the
Council’.19
In a legislative or executive procedure involving several stages, all
16
On the non-reviewability of international agreements concluded by the Member States,
see Case C-146/13, Spain v. Parliament and Council (Unitary Patent), EU:C:2015:298, esp.
para.101:‘[I]t should be borne in mind that,in an action brought under Article 263TFEU,
the Court does not have jurisdiction to rule on the lawfulness of an international agreement
concluded by Member States.’The use of so-called inter se agreements is thus one
way to remove ECJ jurisdiction – unless the Court has specifically been granted jurisdiction
under the international agreement itself.
17
Art. 288(5) TFEU.
18
Strangely, sometimes such ‘soft law’ may however have ‘legal’ effects. On this point, see L.
Senden, Soft Law in European Community Law (Hart, 2004).
19
Case 60/81, International Business Machines (IBM) v. Commission [1981] ECR 2639,
para. 10.
Governmental Powers358
preparatory acts are consequently considered ‘internal’ acts; and as such cannot
be reviewed.20
But apart from these – minor – limitations, the Court has embraced a wide
teleological definition of which acts may be reviewed.The nature of the (final)
act would thereby be irrelevant. In ERTA,21
the Court thus found:
20
However, the Court clarified that preparatory acts can indirectly be reviewed once the
(final)‘external act’is challenged (ibid.,para.12):‘Furthermore,it must be noted that whilst
measures of a purely preparatory character may not themselves be the subject of an application
for a declaration that they are void, any legal defects therein may be relied upon in
an action directed against the definitive act for which they represent a preparatory step.’
21
Case 22/70, Commission v. Council (ERTA) [1971] ECR 263.
22
Ibid., paras. 39–42.
23
A. W. Bradley and K. D. Ewing, Constitutional and Administrative Law (Pearson, 2003), chs.
30 and 31.
Since the only matters excluded from the scope of the action for annulment open to
the Member States and the institutions are ‘recommendations or opinions’ – which
by the final paragraph of Article [288 TFEU] are declared to have no binding force –
Article [263 TFEU] treats as acts open to review by the Court all measures adopted by
the institutions which are intended to have legal force. The objective of this review
is to ensure, as required by Article [19 TEU], observance of the law in the interpretation
and application of the Treaty. It would be inconsistent with this objective to
interpret the conditions under which the action is admissible so restrictively as to limit
the availability of this procedure merely to the categories of measures referred to by
Article [288 TFEU]. An action for annulment must therefore be available in the case
of all measures adopted by the institutions, whatever their nature or form, which are
intended to have legal effects.22
The Court’s wide review jurisdiction is however externally limited by Articles
275 and 276 TFEU – as discussed in the Introduction to this chapter, above.
b. Legitimate Grounds for Review
Not every reason is a sufficient reason to request judicial review.While the existence
of judicial review is an essential element of all political orders subject to
the ‘rule of law’, the extent of judicial review will differ depending on whether
a procedural or a substantive version is chosen.The British legal order has traditionally
followed a formal definition of the rule of law. Accordingly, courts are
(chiefly) entitled to review whether in the adoption of an act the respective legislative
or executive procedures have been followed.23
The ‘merit’ or ‘substance’
of a legislative act is here beyond the review powers of the courts. By contrast,
the US constitutional order has traditionally followed a substantive definition of
the rule of law. Courts are also obliged to review the content of a legislative act,
and, in particular, whether it violates fundamental human rights as guaranteed
in the Constitution.
Judicial Powers I 359
Be that as it may, for the European legal order, Article 263(2) TFEU limits
judicial review to four legitimate grounds:‘lack of competence’,‘infringement
of an essential procedural requirement’,‘infringement of theTreaties or any rule
of law relating to their application’, and ‘misuse of powers’. Do these reasons
indicate whether the Union subscribes to a formal or substantive rule of law?
Let us look at this general question first, before analysing the principle of proportionality
as a specific ground of review.
aa. ‘Formal’ and ‘Substantive’ Grounds
The Union legal order recognises three ‘formal’ grounds of review.
First, a European act can be challenged on the grounds that the Union lacked
the competence to adopt it.The ultra vires review of European law extends to
all secondary and tertiary Union law.The review of the former originates in the
principle of conferral.24
Since the Union may only exercise those powers conferred
on it by theTreaties,any action beyond these powers is ultra vires and thus
voidable.25
With regard to delegated legislation, the Court will not only review
whether the delegate has acted within the scope of the powers delegated, but it
must also ensure that the absolute limits to such a delegation have not been vio-
lated.26
This follows not from the (vertical) principle of conferral, but from the
(horizontal) principle protecting the institutional balance of powers within the
Union.27
Second, a Union act can be challenged if it infringes an essential procedural
requirement. According to this second ground of review, not all procedural
irregularities may invalidate a Union act but only those that are ‘essential’.When
are ‘essential’ procedural requirements breached? The constitutional principles
developed under this jurisdictional head are the result of an extensive ‘legal basis
litigation’.28
An essential procedural step is breached when the Union adopts
an act under a procedure that leaves out an institution that was entitled to be
involved.29
Alternatively, the Union may have adopted an act on the basis of a
wrong voting arrangement within one institution.Thus,where the Council voted
by unanimity instead of a qualified majority, an essential procedural requirement
is breached.30
By contrast,no essential procedural requirement is infringed when
24
On the principle of conferral, see Chapter 7, section 1.
25
The European Court has traditionally been reluctant to declare Union legislation void on
the ground of lack of competence.This judicial passivity stemmed from the Court’s unwillingness
to interfere with a consensual decision of the Member States in the Council. On
the ‘culture of consent’ after the Luxembourg compromise, see Chapter 1, section 2(b).
26
On the delegation doctrine in the Union legal order, see Chapter 9, section 2.
27
On the ‘essential elements’ principle, see Chapter 9, section 2(a/bb).
28
On the phenomenon of ‘legal basis litigation’ in the Union legal order, see H. Cullen and
A. Worth, ‘Diplomacy by Other Means: The Use of Legal Basis Litigation as a Political
Strategy by the European Parliament and Member States’ (1999) 36 CML Rev. 1243.
29
See Case 22/70,Commission v.Council (ERTA) [1971] ECR 263;Case C-70/88,Parliament
v. Council (Chernobyl) [1990] ECR I-2041.
30
See Case 68/86, United Kingdom v. Council [1988] ECR 855; Case C-300/89, Commission
v. Council [1991] ECR I-2867.
Governmental Powers360
the Union acts under a ‘wrong’ competence, which nonetheless envisages an
identical legislative procedure.31
The third formal ground of review is ‘misuse of powers’, which has remained
relatively obscure.32
The subjective rationale behind it is the prohibition on pursuing
a different objective from the one underpinning a legal competence.33
Finally, a Union act can be challenged on the grounds that it represents an
‘infringement of the Treaties or any other rule of law relating to their application’.This
constitutes a‘residual’ground of review.The European Court has used
it as a constitutional pass-partout to import a range of ‘unwritten’ general principles
into the Union legal order.34
These principles include, most importantly,
the principle of proportionality.With the introduction of these principles, the
rule of law has received a substantive dimension in the European Union.35
The
most important expression of this substantive rule of law idea is the ability of the
European Courts to review Union acts against EU fundamental rights.36
They
impose substantive limits on all governmental powers of the Union. In light of
their importance, they will be dealt with extensively in Chapter 12.
bb. In Particular: The Proportionality Principle
The constitutional function of the proportionality principle is to protect liberal
values.37
It constitutes one of the ‘oldest’ general principles of the Union legal
order.38
Beginning its career as an unwritten principle, the proportionality principle
is now codified in Article 5(4) TEU:
31
Case 165/87, Commission v. Council [1988] ECR 5545, para. 19: ‘only a purely formal
defect which cannot make the measure void’.
32
For a more extensive discussion of this ground of review, see H. Schermers and D.
Waelbroeck, Judicial Protection in the European Union (Kluwer, 2001), 402ff.
33
See Joined Cases 18 and 35/65, Gutmann v. Commission [1965] ECR 103.
34
On the general principles in the Union legal order, seeT.Tridimas, The General Principles of
EU Law (Oxford University Press, 2007).
35
For an express confirmation that the Union legal order subscribes to the substantive rule
of law version,see Case C-367/95P, Commission v. Sytraval and Brink’s [1998] ECR I-1719,
para. 67; Case C-378/00, Commission v. Parliament and Council [2003] ECR I-937, para. 34.
36
On the emergence of fundamental rights as general principles of Union law, see Chapter
12, section 1.
37
On the origins of the proportionality principle, see J. Schwarze, European Administrative
Law (Sweet & Maxwell, 2006), 678–9.
38
An implicit acknowledgement of the principle may be found in Case 8/55, Fédération
Charbonnière de Belgique v. High Authority of the ECSC [1955] ECR (English Special
Edition) 245 at 306:‘not exceed the limits of what is strictly necessary’.
39
The provision continues:‘The institutions of the Union shall apply the principle of proportionality
as laid down in the Protocol on the application of the principles of subsidiarity
and proportionality.’
Under the principle of proportionality, the content and form of Union action shall not
exceed what is necessary to achieve the objectives of the Treaties.39
Judicial Powers I 361
The proportionality principle has been characterised as‘the most far-reaching
ground for review’, and ‘the most potent weapon in the arsenal of the public
law judge’.40
But how will the Court assess the proportionality of a Union act? In the past,
the Court has developed a proportionality test. In its most elaborate form, the
test follows a tripartite structure.41
It analyses the suitability, necessity and proportionality
(in the strict sense) of a Union act. However, the Court does not always
distinguish between the second and third prongs.
Within its suitability review, the Court will check whether the European
measure is suitable to achieve a given objective.This might be extremely straight-
forward.42
The necessity test is, on the other hand, more demanding.The Union
will have to show that the act adopted represents the least restrictive means to
achieve a given objective. Finally, even the least restrictive means to achieve a
public policy objective might disproportionately interfere with EU fundamental
rights. Proportionality in a strict sense thus weighs whether the burden imposed
on an individual is excessive or not.
While this tripartite test may – in theory – be hard to satisfy, the Court has
granted the Union a wide margin of appreciation wherever it enjoys a sphere
of discretion.The legality of a discretionary Union act will thus only be affected
‘if the measure is manifestly inappropriate’.43
This relaxed standard of review has
meant that the European Court rarely finds a Union measure to be disproportionately
interfering with, say, fundamental rights.
We do, however, find a good illustration of a disproportionate Union act
in Kadi.44
In its fight against international terrorism, the Union had adopted
a regulation freezing the assets of people suspected to be associated with AlQaida.The
applicant alleged, inter alia, that the Union act disproportionately
restricted his right to property.The Court held that the right to property was
not absolute and ‘the exercise of the right to property may be restricted, provided
that those restrictions in fact correspond to objectives of public interest
pursued by the [Union] and do not constitute, in relation to the aim pursued, a
40
Tridimas, General Principles (n. 34 above), 140.
41
See Case C-331/88, The Queen v. Minister of Agriculture, Fisheries and Food and Secretary of
State for Health, ex p. Fedesa and others [1990] ECR I-4023, para. 13: ‘[T]he principle of
proportionality is one of the general principles of [Union] law. By virtue of that principle,
the lawfulness of the prohibition of an economic activity is subject to the condition that
the prohibitory measures are appropriate and necessary in order to achieve the objectives
legitimately pursued by the legislation in question; when there is a choice between several
appropriate measures recourse must be had to the least onerous, and the disadvantages
caused must not be disproportionate to the aims pursued.’
42
For a rare example, where the test is not satisfied, see Case C-368/89, Crispoltoni v. Fattoria
autonoma tabacchi di Città di Castello [1991] ECR I-3695, esp. para. 20.
43
Case C-331/88, Fedesa (n. 41 above), para. 14 (emphasis added); Case C-122/95, Germany
v. Council (Bananas) [1998] ECR I-973, para. 79.
44
Case C-402/05P, Kadi and Al Barakaat International Foundation v. Council and Commission
[2008] ECR I-6351.
Governmental Powers362
disproportionate and intolerable interference, impairing the very substance of
the right so guaranteed’.45
And this required that ‘a fair balance has been struck
between the demands of the public interest and the interest of the individuals
concerned’.46
This fair balance had not been struck for the applicant; and the
Union act would, so far as it concerned the applicant,47
therefore have to be
annulled.
c. Legal Standing before the European Court
The Treaties distinguish between three types of applicants in three distinct paragraphs
of Article 263.
Paragraph 2 mentions the applicants who can always bring an action for
judicial review. These ‘privileged’ applicants are: the Member States,48
the
European Parliament,49
the Council and the Commission.The reason for their
privileged status is that they are ex officio deemed to be affected by the adoption
of every Union act.50
45
Ibid., para. 355.
46
Ibid., para. 360.
47
Ibid., paras. 371–2. However, the Court found that the Union act as such could, in principle,
be justified (ibid., para. 366).
48
On the position of regions within Member States, see K. Lenaerts and N. Cambien,
‘Regions and the European Courts:Giving Shape to the Regional Dimension of Member
States’ (2010) 35 EL Rev. 609.
49
Under the original Rome Treaty, the European Parliament was not a privileged applicant.
The reason for this lay in its mere ‘consultative’ role in the adoption of Union law.With
the rise of parliamentary involvement after the Single European Act, this position became
constitutionally problematic. How could Parliament cooperate or even co-decide in the
legislative process, yet not be able to challenge an act that infringed its procedural prerogatives?To
close this constitutional gap, the Court judicially ‘amended’ ex-Art. 173 EEC by
giving the Parliament the status of a ‘semi-privileged’ applicant (see Case 70/88, Parliament
v. Council (Chernobyl), paras. 24–7:‘[T]he Court cannot, of course, include the Parliament
among the institutions which may bring an action under [ex-]Article 173 of the EEC
Treaty or Article 146 of the Euratom Treaty without being required to demonstrate an
interest in bringing an action. However, it is the Court’s duty to ensure that the provisions
of theTreaties concerning the institutional balance are fully applied and to see to it that the
Parliament’s prerogatives,like those of the other institutions,cannot be breached without it
having available a legal remedy,among those laid down in theTreaties,which may be exercised
in a certain and effective manner.The absence in theTreaties of any provision giving
the Parliament the right to bring an action for annulment may constitute a procedural gap,
but it cannot prevail over the fundamental interest in the maintenance and observance of
the institutional balance laid down in theTreaties establishing the European Communities.
Consequently, an action for annulment brought by the Parliament against an act of the
Council or the Commission is admissible provided that the action seeks only to safeguard
its prerogatives and that it is founded only on submissions alleging their infringement’).
This status was codified in the Maastricht Treaty; and the Nice Treaty finally recognised
Parliament’s status as a fully privileged applicant under ex-Art. 230(2) EC.
50
One notable absentee from the list of privileged applicants is the European Council.
However, its interests are likely to be represented by the Council.
Judicial Powers I 363
Paragraph 3 lists applicants that are ‘semi-privileged’.These are the Court of
Auditors, the European Central Bank and the Committee of the Regions.51
They are ‘partly privileged’, as they may solely bring review proceedings ‘for the
purpose of protecting their prerogatives’.52
Paragraph 4 – finally – addresses the standing of natural or legal persons.
These applicants are ‘non-privileged’ applicants, as they must demonstrate that
the Union act affects them specifically.This fourth paragraph has been highly
contested in the past 60 years. And, in order to make sense of the Court’s past
jurisprudence,we must start with a historical analysis of the 1957‘Rome formulation’,before
moving to the current 2007‘Lisbon formulation’of that paragraph.
aa. The Rome Formulation and its Judicial Interpretation
The Rome Treaty granted individual applicants the right to apply for judicial
review in ex-Article 230 EC. Paragraph 4 of that provision stated:
Any natural or legal person may … institute proceedings against a decision addressed
to that person or against a decision which, although in the form of a regulation
or decision addressed to another person, is of direct and individual concern to the
former.53
51
On the right to consultation of the Committee of the Regions,see Art.307TFEU.And Art.
8(2) of Protocol No.2 On theApplication of the Principles of Subsidiarity and Proportionality
states: ‘In accordance with the rules laid down in the said Article, the Committee of the
Regions may also bring such actions against legislative acts for the adoption of which the
Treaty on the Functioning of the European Union provides that it be consulted.’
52
For a definition of this phrase in the context of Parliament’s struggle to protect its prerogatives
before the Nice Treaty, see Case C-316/91, Parliament v. Council [1994] ECR I-625;
Case C-187/93, Parliament v. Council [1994] ECR I-2857.
53
Ex-Art. 230(4) EC (emphasis added).
54
On the various instruments in the European legal order, see Chapter 3, Introduction. On
the material distinction between ‘decisions’ and ‘regulations’, see Joined Cases 16–17/62,
Confédération nationale des producteurs de fruits et légumes and others v.Council [1962] ECR 471,
where the Court found that theTreaty ‘makes a clear distinction between the concept of a
‘decision’ and that of a ‘regulation’ (ibid., 478). Regulations were originally considered the
sole ‘generally applicable’ instrument of the European Union, and their general character
distinguished them from individual decisions.The crucial characteristic of a regulation was
the ‘openness’ of the group of persons to whom it applied.Where the group of persons
was‘fixed in time’,the Court regarded the European act as a bundle of individual decisions
This ‘Rome formulation’ must be understood against the background of two
constitutional choices. First, the drafters of the RomeTreaty had wished to confine
the standing of private parties to challenges of individual ‘decisions’, that is:
administrative acts.The RomeTreaty thereby distinguished between three types
of decisions: decisions addressed to the applicant, decisions addressed to another
person, and decisions ‘in the form of a regulation’. This third decision was a
decision ‘in substance’, which had been put into the wrong legal form.54
Judicial
review was here desirable to avert an abuse of powers.
Governmental Powers364
Second,not every challenge of a decision by private parties was permitted.Only
those decisions that were of ‘direct and individual concern’ to a private party
could be challenged.And, while this effect was presumed for decisions addressed
to the applicant, it had to be proven for all other decisions. Private applicants
were thus ‘non-privileged’ applicants in a dual sense. Not only could they not
challenge all legal acts, they were – with the exception of decisions addressed to
them – not presumed to have a legitimate interest in challenging the act.
Both constitutional choices severely restricted the standing of private parties
and were heavily disputed. In the Union legal order prior to Lisbon, they were
subject to an extensive judicial and academic commentary.55
In a first line of jurisprudence,the Court succeeded in significantly‘rewriting’
ex-Article 230(4) EC by deserting the text’s insistence on an (administrative)
‘decision’.While it had originally paid homage to that text by denying private
party review of generally applicable acts,56
the Court famously abandoned its
classic test and clarified that the general or specific nature of the Union act was
irrelevant. In Codorniu,57
the Court thus found:
addressed to each member of the group (see Joined Cases 41–4/70, International Fruit
Company and others v. Commission [1971] ECR 411, esp. para. 17).
55
For the academic controversy (in chronological order), see A. Barav,‘Direct and Individual
Concern:An Almost Insurmountable Barrier to the Admissibility of Individual Appeal to
the EEC Court’ (1974) 11 CML Rev. 191; H. Rasmussen,‘Why Is Article 173 Interpreted
against Private Plaintiffs?’ (1980) 5 EL Rev. 112; N. Neuwahl,‘Article 173 Paragraph 4 EC;
Past, Present and Possible Future’ (1996) 21 EL Rev. 17;A.Arnull,‘Private Applicants and
the Action for Annulment since Codorniu’ (2001) 38 CML Rev. 8;A.Ward, Judicial Review
and the Rights of Private Parties in EU Law (Oxford University Press, 2007).
56
The Court’s classic test concentrated on whether – from a material point of view – the
challenged act was a ‘real’ regulation. The ‘test’ is spelled out in Case 790/79, Calpak v.
Commission [1980] ECR 1949, paras. 8–9: ‘By virtue of the second paragraph of Article
[288] of the Treaty [on the Functioning of the European Union] the criterion for distinguishing
between a regulation and a decision is whether the measure at issue is of general
application or not … A provision which limits the granting of production aid for all producers
in respect of a particular product to a uniform percentage of the quantity produced
by them during a uniform preceding period is by nature a measure of general application
within the meaning of Article [288] of the Treaty. In fact the measure applies to objectively
determined situations and produces legal effects with regard to categories of persons
described in a generalised and abstract manner.The nature of the measure as a regulation
is not called into question by the mere fact that it is possible to determine the number or
even the identity of the producers to be granted the aid which is limited thereby.’
57
Case C-309/89, Codorniu v. Council [1994] ECR I-1853.
58
Ibid.,para.19.See also Case 76/01P,Eurocoton et al. v.Council [2003] ECR I-10091,para.73:
‘Although regulations imposing anti-dumping duties are legislative in nature and scope, in
that they apply to all economic operators,they may nevertheless be of individual concern[.]’
Although it is true that according to the criteria in the [fourth] paragraph of [ex-]
Article [230] of the [EC] Treaty the contested provision is, by nature and by virtue
of its sphere of application, of a legislative nature in that it applies to the traders
concerned in general, that does not prevent it from being of individual concern to
some of them.58
Judicial Powers I 365
This judicial ‘amendment’ cut the Gordian knot between the ‘administrative’
nature of an act and ex-Article 230(4) EC. Private parties could henceforth
challenge any legal act – even generally applicable legislative acts like regulations
or directives – as long as they could demonstrate ‘direct and individual concern’.
This brings us to the second famous battleground under ex-Article 230(4)
EC.What was the meaning of the ‘direct and individual concern’ formula?
The criterion of direct concern was taken to mean that the contested measure
as such would have to directly affect the position of the applicant.This would not
be the case, where the contested measure allowed for any form of discretionary
implementation. Where an additional – and intervening – act was envisaged,
there would thus be no ‘direct’ link between the measure and the applicant.59
(In this case, the Union legal order would require the applicant to challenge the
implementing measure – and not the ‘parent’ act.)
Sadly,the criterion of‘individual concern’was less straightforward.It was given
an authoritative interpretation in the seminal case on the standing of private parties
under ex-Article 230(4) EC: the Plaumann case. Plaumann, an importer of
clementines, had challenged a Commission decision refusing to lower European
customs duties on that fruit.But since the decision was not addressed to him – it
was addressed to his Member State: Germany – he had to demonstrate that the
decision was of ‘individual concern’ to him.The European Court defined the
criterion as follows:
59
See Case 294/83, Les Verts, para. 31: ‘The contested measures are of direct concern to
the  applicant association. They constitute a complete set of rules which are sufficient
in themselves and which require no implementing provisions.’In Case C-417/04P,Regione
Siciliana v.Commission [2006] ECR I-3881,the Court however clarified that‘direct concern’
was not about whether or not there – formally – needed to be additional implementing
measures. It was only interested in whether the act directly determined – in a substantive
sense – the situation of the applicant. Directives could thus be of direct concern – even if
they always formally require implementation by the Member States (see Case T-135/96,
Union Européenne de l’artisanat et des petites et moyennes entreprises (UEAPME) v.Council [1998]
ECR II-02335).
60
Case 25/62, Plaumann v. Commission [1963] ECR 95 at 107.
Persons other than those to whom a decision is addressed may only claim to be individually
concerned if that decision affects them by reason of certain attributes which
are peculiar to them or by reason of circumstances in which they are differentiated
from all other persons and by virtue of these factors distinguishes them individually
just as in the case of the person addressed.60
This formulation became famous as the ‘Plaumann test’. If private applicants
wish to challenge an act not addressed to them, it is not sufficient to rely on the
adverse – absolute – effects that the act has on them. Instead, they must show
that – relative to everybody else – the effects of the act are ‘peculiar to them’.
This relational standard insists that they must be ‘differentiated from all other
persons’.The applicants must be singled out as if they were specifically addressed.
Governmental Powers366
In the present case, the Court denied this individual concern, as Plaumann was
seen to be only generally concerned ‘as an importer of clementines, that is to say,
by reason of a commercial activity which may at any time be practised by any
person’.61
The Plaumann test is therefore very strict: whenever a private party is
a member of an ‘open group’ of persons – anybody could decide to become an
importer of clementines tomorrow – legal standing under ex-Article 230(4) EC
was denied.62
A person would thus have to belong to a ‘closed group’ so as to be
entitled to challenge a Union act (see Figure 10.2).
Unsurprisingly, this restrictive reading of private party standing was heavily
criticised as an illiberal limitation on an individual’s fundamental right to judicial
review.63
And the Court would partly soften its stance in specific are of European
law.64
However, it has refused to introduce a more general liberal approach to
the standing of private applicants. In Unión de Pequeños Agricultores (UPA),65
the
Court indeed expressly rejected the invitation to overrule its own jurisprudence
on the – disingenuous – ground that‘[w]hile it is,admittedly,possible to envisage
61
Ibid.
62
Even assuming that Plaumann was the only clementine importer in Germany at the time of
the decision,the category of‘clementine importers’was open:future German importers could
wish to get involved in the clementine trade.Will there ever be‘closed groups’in light of this
definition? For the Court’s approach in this respect, see Case 100/74, CAM v. Commission
[1975] ECR 1393;Case 11/82,Piraiki-Patraiki and others v.Commission [1985] ECR 207.
63
See Art. 6 of the European Convention on Human Rights:‘In the determination of his
civil rights and obligations or of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law.’
64
This had happened – for example – in the area of European competition law; see Case
26/76, Metro-SB-Großmärkte v. Commission [1977] ECR 1875. For a recent analysis of the
– softer – standing rules in the area of State aid, see S. Poli,‘The Legal Standing of Private
Parties in the Area of State Aids after the Appeal in Commission v.Kronoply/Kronotex’(2012)
39 Legal Issues of Economic Integration 357.
65
Case C-50/00, Unión de Pequeños Agricultores (UPA) v. Council [2002] ECR I-6677.
Figure 10.2 Plaumann Test
Open Group
Plaumann Test
Closed Group
Future
Present
Future
P
P
P
PP
P
P
P
P
P
PP
Present
Judicial Powers I 367
a system of judicial review of the legality of [Union] measures of general application
different from that established by the foundingTreaty and never amended
as to its principles, it is for the Member States, if necessary, in accordance with
Article 48 TEU, to reform the system currently in force’.66
Has this – requested – constitutional amendment taken place? Let us look at
the Lisbon formulation dealing with the standing of private parties.
bb. The Lisbon Formulation and Its Interpretative Problems
The LisbonTreaty has substantially amended the Rome formulation.The standing
of private parties is now enshrined in Article 263(4)TFEU.The provision states:
66
Case C-50/00, UPA v. Council, para. 45.The Plaumann test is a result of the Court’s own
interpretation of what ‘individual concern’ means, and the Court could have therefore –
theoretically – ‘overruled’ itself.This has indeed happened in other areas of European law;
see Joined Cases C-267/91 and C-268/91, Criminal proceedings against Keck and Mithouard
[1993] ECR I-6097.
67
Art. 263(4) TFEU (emphasis added).
68
On the concept of ‘direct concern’ before the Lisbon amendments, see. above n. 59 The
Court has confirmed that this jurisprudence also applies post-Lisbon, see Case T-262/10,
Microban v. Commission [2011] ECR II-7697, para. 32:‘[T]he concept of direct concern, as
recently introduced in that provision cannot, in any event, be subject to a more restrictive
interpretation than the notion of direct concern as it appeared in the fourth paragraph of
[ex-]Article 230 EC.’
69
The pre-Lisbon jurisprudence on ‘direct concern’ may explain why the Lisbon treatymakers
insisted on the further formal criterion that no implementing act be needed.As we
saw in n. 59 above, the Court did not link direct concern with the question of whether or
not an additional act of implementation was required. From this perspective, the new Art.
263(4) TFEU, and its insistence on the absence of any implementing act, signals the wish
of the Lisbon Treaty-makers to return to a more restrictive – formal – position.And the
post-Lisbon Court has indeed moved in this direction (see Case C-274/12P, Telefónica v.
Commission EU:C:2013:852; Case C-553/14P, Kyocera v. Commission, EU:C:2015:805).
Any natural or legal person may … institute proceedings against an act addressed
to that person or which is of direct and individual concern to them, and against a
regulatory act which is of direct concern to them and does not entail implementing
measures.67
The new formulation of paragraph 4 textually recognises the decoupling of
private party standing from the nature of the Union act challenged. In codifying
Codorniu, an individual can thus potentially challenge any Union ‘act’ with legal
effects. However, depending on the nature of the act,Article 263(4) TFEU still
distinguishes three scenarios.
First: decisions addressed to the applicant can automatically be challenged.
Second, with regard to ‘regulatory’ acts, a private party must prove ‘direct
concern’.68
It also needs to prove that the act does not require implementing
measures.This has introduced an additional formal hurdle that may not be easy
to overcome.69
For it seems that any type of act – even a formal communication –
Governmental Powers368
whether by the Union or the Member States can count as an implementing
measure.70
Third, for all other acts, the applicant must continue to show ‘direct and individual
concern’.The Lisbon amendment has thus abandoned the requirement
of ‘individual concern’ only for the second but not the third category of acts.
The dividing line between the second and third category was poised to
become the post-Lisbon interpretative battlefield within Article 263(4) TFEU;
and this dividing line is determined by the concept of ‘regulatory act’.
What are ‘regulatory acts’? The term is not defined in the EU Treaties.Two
constitutional options exist.According to a first view,‘regulatory acts’ are liberally
defined as all‘generally applicable acts’.71
This reading liberalises the standing
of private applicants significantly, as the second category would cover all legislative
as well as executive acts of a general nature. According to a second view,
on the other hand, the concept of ‘regulatory act’ should be defined in contradistinction
to ‘legislative acts’. Regulatory acts are here understood as nonlegislative
general acts.72
This view places acts adopted under the – ordinary or
special – legislative procedure outside the second category.The judicial review
of formal legislation would consequently require‘direct and individual concern’,
and would thus remain relatively immune from private party challenges.
Which of the two options should be chosen? Legally, the drafting history of
Article 263(4) TFEU is inconclusive.73
Nor do textual arguments clearly favour
one view over the other.74
And teleological arguments point in both directions –
depending which telos one prefers.Those favouring individual rights will thus
prefer the – wider – first view, whereas those wishing to protect democratic
values will prefer the second – narrower – view.
70
Ibid., para. 55.This – tough – result should mean that a regulatory act adopted in the form
of a ‘directive’ should never fall within the second class of acts within Art. 263(4), since
they – by definition – always require a formal act of implementation by the Member
States. On the format of the ‘directive’, see Chapter 3, section 3.
71
See M. Dougan,‘TheTreaty of Lisbon 2007:Winning Minds, Not Hearts’ (2008) 45 CML
Rev. 617;and J. Bast,‘Legal Instruments and Judicial Protection’, in A. von Bogdandy and J.
Bast (eds.), Principles of European Constitutional Law (Hart, 2009), 345 at 396.
72
A. Ward, ‘The Draft EU Constitution and Private Party Access to Judicial Review of
EU Measures’, in T.Tridimas and P. Nebbia (eds.), European Union Law for the Twenty-first
Century (Hart, 2005), 201 at 221; A. Dashwood and A. Johnston,‘The Institutions of the
Enlarged EU under the Regime of the Constitutional Treaty’ (2004) 41 CML Rev. 1481
at 1509.
73
Final Report of the Discussion Circle on the Court of Justice (CONV 636/03). See
also M.Varju, ‘The Debate on the Future of Standing under Article 230(4) TEC in the
European Convention’ (2004) 10 European Public Law 43.
74
A comparison of the different language versions of Art. 263(4) TFEU is not conclusive.
Systematic and textual arguments are equally inconclusive. For Art. 277 TFEU (on collateral
review) uses the term ‘act of general application’ – a fact that could be taken to mean
that the phrase ‘regulatory act’ is different. However, Art. 290 TFEU expressly uses the
concept of ‘non-legislative acts of general application’– which could, in turn, be taken to
mean that ‘regulatory act’ in Art. 263(4) TFEU must mean something different here too.
Judicial Powers I 369
How have the European Courts decided? In Inuit I,75
the General Court sided
with the second – narrower – view.The case involved a challenge by seal products
traders to a Union regulation banning the marketing of such products in the
internal market. Having been adopted on the basis of Article 114 TFEU, under
the ordinary legislative procedure, the question arose as to what extent Union
legislation could be challenged by interested private parties.After a comprehensive
analysis of the various arguments for and against the inclusion of legislative
acts into the category of regulatory acts,the General Court found the two classes
of acts to be mutually exclusive. In the word of the Court:
75
Case T-18/10, Inuit v. Parliament & Council, [2011] ECR II-5599.
76
Ibid., para. 56 (emphasis added).
77
Case C-583/11P, Inuit v. Parliament & Council, EU:C:2013:625.
78
Ibid., paras. 60–1.
79
On the ‘end’ of Plaumann, see S. Balthasar,‘Locus standi Rules for Challenges to Regulatory
Acts by Private Applicants: The New Article 263(4) TFEU’ (2010) 35 EL Rev. 542 at
548; M. Kottmann, ‘Plaumanns Ende: ein Vorschlag zu Art. 263 Abs. 4 AEUV’ (2010) 70
Zeitschrift für ausländisches öffentliches Recht undVölkerrecht 547.
[I]t must be held that the meaning of ‘regulatory act’ for the purposes of the fourth
paragraph of Article 263 TFEU must be understood as covering all acts of general
application apart from legislative acts.76
The judgment was confirmed on appeal,77
where the Court of Justice held
as follows:
[T]he purpose of the alteration to the right of natural and legal persons to institute
legal proceedings, laid down in the fourth paragraph of [ex-]Article 230 EC, was to
enable those persons to bring, under less stringent conditions, actions for annulment
of acts of general application other than legislative acts. The General Court was
therefore correct to conclude that the concept of ‘regulatory act’ provided for in the
fourth paragraph of Article 263 TFEU does not encompass legislative acts.78
For private party challenges to legislative acts, the Union legal order therefore
continues to require proof of a ‘direct and individual concern’ (see Figure 10.3).
Reports on the death of Plaumann have also turned out to be greatly exagger-
ated.79
For the Court in Inuit I expressly identified ‘individual concern’ under
Article 263(4) TFEU with the Plaumann test. Rejecting the argument that the
LisbonTreaty makers had wished to replace the‘old’test with a‘new’less restrictive
test, the Court here held:
In that regard, it can be seen that the second limb of the fourth paragraph of Article
263 TFEU corresponds … to the second limb of the fourth paragraph of [ex-]Article
230 EC. The wording of that provision has not been altered. Further, there is nothing
Governmental Powers370
80
Case C-583/11P, Inuit, paras. 70–2.
81
For recent confirmations here,see Joined Cases C-191/14,C-192/14,C-295/14,C-389/14
and C-391/14 to C-393/14, Borealis Polyolefine, EU:C:2016:311; Case C-456/13P T&L
Sugars and others v. Commission.
82
Case C-50/00, UPA.
The Court thus wishes to stick to Plaumann.81
This however does not mean
that there are no good arguments against it. The strongest critique of the
Plaumann test has thereby come from the pen of Advocate General Jacobs. In
Unión de Pequeños Agricultores (UPA),82
his learned opinion pointed to the test’s
Figure 10.3 Types of Acts under Article 263(4)
Article 263(4)
Non-legislative ActsLegislative Acts
Individual ActsGeneral Acts
(‘Regulatory Acts’)
Autonomous Acts
Delegated Acts
Implementing Acts
Ordinary Legislation
Special Legislation
(International Agreements)
Direct and
Individual Concern
Direct and
Individual Concern
Direct and
Individual Concern
Further
Implementation
No Further
Implementation
Addressed to
Applicant
Not Addressed to
Applicant
Direct
Concern
Automatic
Standing
Autonomous Acts
Implementing Acts
to suggest that the authors of the Treaty of Lisbon had any intention of altering the
scope of the conditions of admissibility already laid down in the fourth paragraph of
[ex-]Article 230 EC … In those circumstances, it must be held that the content of the
condition that the act of which annulment is sought should be of individual concern,
as interpreted by the Court in its settled case-law since Plaumann v Commission, was
not altered by the Treaty of Lisbon … According to that case-law, natural or legal
persons satisfy the condition of individual concern only if the contested act affects
them by reason of certain attributes which are peculiar to them or by reason of
circumstances in which they are differentiated from all other persons, and by virtue
of these factors distinguishes them individually just as in the case of the person
addressed …80
Judicial Powers I 371
anomalous logic. It is indeed absurd that ‘the greater the number of persons
affected the less likely it is that effective judicial review is available’.83
But what
alternative test might then be suitable? ‘The only satisfactory solution is therefore
to recognise that an applicant is individually concerned by a [Union] measure
where the measure has, or is liable to have, a substantial adverse effect on his
interests.’84
Yet as we saw above, the Court has rejected this reinterpretation on
the formal ground that abandoning Plaumann would requireTreaty amendment.
However, the Court also provided a additional substantive ground to justify its
restrictive stance towards private parties:
By Article [263] and Article [277], on the one hand, and by Article [267], on the
other, the Treaty has established a complete system of legal remedies and procedures
designed to ensure judicial review of the legality of acts of the institutions, and has
entrusted such review to the [Union] Courts. Under that system, where natural or
legal persons cannot, by reason of the conditions for admissibility laid down in the
fourth paragraph of Article [263] of the Treaty, directly challenge [Union] measures of
general application, they are able, depending on the case, either indirectly to plead
the invalidity of such acts before the [European] Courts under Article [277] of the
Treaty or to do so before the national courts and ask them, since they have no jurisdiction
themselves to declare those measures invalid, to make a reference to the
Court of Justice for a preliminary ruling on validity.85
The Court here justified its restrictive stance on the direct review of European
law by pointing to its expansive stance on the indirect review of European law.86
Let us look at this claim in more detail.
d. The Indirect Review of European Law
aa. Collateral Review: The Plea of Illegality
The first possibility of an indirect review of EU law can be found in the ‘plea of
illegality’.87
Its procedure is set out in Article 277 TFEU:
83
Opinion of Advocate General Jacobs, ibid., para. 59.
84
Ibid., para. 102 (emphasis added).
85
Ibid., para. 40.
86
Ibid., paras. 41–2:‘Thus it is for the Member States to establish a system of legal remedies
and procedures which ensure respect for the right to effective judicial protection. In that
context,in accordance with the principle of sincere cooperation laid down inArticle [4(3)]
of the [EU] Treaty, national courts are required, so far as possible, to interpret and apply
national procedural rules governing the exercise of rights of action in a way that enables
natural and legal persons to challenge before the courts the legality of any decision or other
national measure relative to the application to them of a [Union] act of general application,
by pleading the invalidity of such an act.’This was confirmed in Case C-263/02P,
Commission v. Jégo-Quéré [2004] ECR I-3425, paras. 31–2.
87
For an academic discussion of this plea, see M.Vogt, ‘Indirect Judicial Protection in EC
Law:The Case of the Plea of Illegality’ (2006) 31 EL Rev. 364.
Governmental Powers372
An applicant can thus invoke the illegality of a Union act ‘of general application’in
the course of proceedings for a – different – direct action underArticle 263
TFEU.That is why this form of review is called ‘collateral review’.The review is
indeed not an independent action.The primary object of the review proceedings
must be a different act.
This will typically be an act that implements the collaterally challenged ‘parent’
act. A good illustration of this technique can be found in the second Inuit
case.88
The applicants in Inuit I here challenged the Commission regulation
implementing the Union legislation prohibiting trade in seal products within
the internal market.This second challenge is – procedurally – easier in light of
the fact that the Commission regulation represented a ‘regulatory act’ for which
no individual concern had to be shown; and within the course of that second
challenge, the applicants indeed tried – albeit unsuccessfully – to ‘collaterally’
challenge the legality of the parent – legislative – act.89
The constitutional advantage of the collateral review route may thus be twofold.
It not only bypasses the two-month time limit under Article 263. It equally
grants individuals the possibility of (indirectly) challenging legislative acts or
regulatory acts that require further implementation.90
bb. Indirect Review through Preliminary Rulings
The second form of indirect review of European law may take place under the
preliminary reference procedure – to be discussed in section 4 below.Under this
88
CaseT-526/10,Inuit v.Commission (Inuit II) EU:T:2013:215;C-398/13P,Inuit v.Commission
(Inuit II P), EU:C:2015:535.
89
For an analysis of this dynamic,seeA.Albors-Llorens,‘Remedies against the EU Institutions
after Lisbon:An Era of Opportunity’ (2012) 71 Cambridge Law Journal 507 at 529.
90
In the past,the Court has explained the advantages of the collateral review route as follows
(Case 92/78, Simmenthal v. Commission [1979] ECR 777, paras. 37 and 41):‘Article [277]
of the [FEU] Treaty gives expression to the general principle conferring upon any party
to proceedings the right to challenge, for the purpose of obtaining the annulment of a
decision of direct and individual concern to that party, the validity of previous acts of the
institutions which form the legal basis of the decision which is being attacked, if that party
was not entitled under Article [263] of theTreaty to bring a direct action challenging those
acts by which it was thus affected without having been in a position to ask that they be
declared void …This wide interpretation of Article [277] derives from the need to provide
those persons who are precluded by the [fourth] paragraph ofArticle [263] from instituting
proceedings directly in respect of general acts with the benefit of a judicial review of them
at the time when they are affected by implementing decisions which are of direct and
individual concern to them.’
Notwithstanding the expiry of the period laid down in Article 263, sixth paragraph,
any party may, in proceedings in which an act of general application adopted by an
institution, body, office or agency of the Union is at issue, plead the grounds specified
in Article 263, second paragraph, in order to invoke before the Court of Justice of the
European Union the inapplicability of that act.
Judicial Powers I 373
procedure,the European Court may also give rulings on‘the validity … of acts of
the institutions, bodies, offices or agencies of the Union’.91
The complementary
nature of the indirect review route of Article 267TFEU has been emphasised by
the Court in LesVerts:
91
Art. 267(1)(b) TFEU.
92
Case 294/83, LesVerts, para. 23.
93
Case 322/88, Grimaldi v. Fonds des maladies professionnelles [1989] ECR 4407, paras. 7–9.
94
See Case C-263/02P, Jégo Quéré.
95
See e.g. Case C-239/99, Nachi v. Hauptzollamt Krefeld [2001] ECR I-1197. For an analysis
of the case law, see R. Schwensfeier,‘The TWD Principle Post-Lisbon’ (2012) 37 EL Rev.
156.
[T]he European [Union] is a [Union] based on the rule of law, inasmuch as neither its
Member States nor its institutions can avoid a review of the question whether the
measures adopted by them are in conformity with the basic constitutional charter,
the Treat[ies]. In particular, in Articles [263] and [277], on the one hand, and in Article
[267], on the other, the Treaty established a complete system of legal remedies and
procedures designed to permit the Court of Justice to review the legality of measures
adopted by the institutions …
Where the [Union] institutions are responsible for the administrative implementation
of [European] measures, natural or legal persons may bring a direct action before
the Court against implementing measures which are addressed to them or which are
of direct and individual concern to them and, in support of such action, plead the
illegality of the general measure on which they are based. Where implementation is
a matter for the national authorities, such persons may plead the invalidity of general
measures before the national courts and cause the latter to request the Court of
Justice for a preliminary ruling.92
Individuals can thus challenge the legality of a Union act in national courts;
and the indirect judicial review of Union acts through the preliminary reference
procedure has indeed become the European Court’s favoured option.
Why has the Court favoured the indirect review of European law under
Article 267 over its direct review under Article 263? Under European law, the
arguments in favour of the indirect review route are straightforward. Indirect
challenges may be brought against any Union act – even those of a non-binding
nature.93
They can be brought on any grounds – even those outside Article
263(2).They can be launched by anyone – without regard to ‘direct and individual
concern’.And – finally – they can be brought at any time. (With regard to
the last advantage, there exists however an important ‘estoppel’ exception. For
in TWD, the Court insisted that where the applicant could ‘without any doubt’
have challenged a Union act directly under Article 263, it cannot subsequently
ask for the indirect review of the measure via a preliminary reference.94
The
Court however interprets this ‘TWD principle’ restrictively.)95
Governmental Powers374
Importantly, however, there are also serious disadvantages in the indirect
review route via the preliminary reference procedure.96
First, the latter can only
be used if a national court has jurisdiction, and this may not be the case where
there are no national implementing acts to challenge.97
Second, the applicant
may need to breach European law before challenging the legality of the act on
which the illegal behaviour rests.Third, individual applicants in national courts
have no ‘right’ to demand the indirect review of Union law by the European
Court.Where the relevant national court entertains no doubts as to the validity
of the Union act,no private party appeal to the European Court will be possible.
We shall explore all of these points in greater detail further below in the context
of the preliminary reference procedure.
2. Remedial Powers: Liability Actions
Where the Union legislature or executive has acted illegally, may the Court
grant damages for losses incurred? The European Treaties do acknowledge an
action for damages in Article 268 TFEU;98
yet, for a strange reason the article
refers to another provision:Article 340 TFEU, which reads:
96
For a brilliant and extensive analysis, see Opinion of Advocate General Jacobs in Case
C-50/00, UPA, paras. 38–44.
97
See Case C-263/02P, Jégo Quéré.
98
Art. 268 TFEU:‘The Court of Justice of the European Union shall have jurisdiction in
disputes relating to compensation for damage provided for in the second and third paragraphs
of Article 340.’
99
Art. 340(1) and (2) TFEU.
100
As regards the Union’s civil servants, only their ‘official acts’ will be attributed to the
Union.With regard to their personal liability,Art. 340(4) TFEU states:‘The personal liability
of its servants towards the Union shall be governed by the provisions laid down in
their Staff Regulations or in the Conditions of Employment applicable to them.’
The contractual liability of the Union shall be governed by the law applicable to the
contract in question.
In the case of non-contractual liability, the Union shall, in accordance with the general
principles common to the laws of the Member States, make good any damage
caused by its institutions or by its servants in the performance of their duties.99
The provision distinguishes between contractual liability in paragraph 1,and noncontractual
liability in paragraph 2.While the former is governed by national law,
the latter is governed by European law. Paragraph 2 recognises that the Union
can do ‘wrong’ either through its institutions or through its servants,100
and that
it will in this case be under an obligation to make good damage incurred.
What are the European constitutional principles underpinning an action for
the non-contractual liability of the Union? Article 340[2] TFEU has had a colourful
and complex constitutional history. It has not only been transformed
Judicial Powers I 375
from a dependent action to an independent action, its substantial conditions
have changed significantly.This section will briefly analyse the procedural and
substantive conditions of Union liability actions.
a. Procedural Conditions: From Dependent to Independent Action
The action for damages under Article 340(2)TFEU started its life as a dependent
action, that is: an action that hinged on the prior success of another action. In
Plaumann, a case discussed in the previous section, a clementine importer had
brought an annulment action against a Union decision while at the same time
asking for compensation equivalent to the customs duties that had been paid as
a consequence of the challenged European decision. However, as we saw above,
the action for annulment failed due to the restrictive standing requirements
under Article 263(4) TFEU; and the Court found that this would equally end
the liability action for damages:
In the present case, the contested decision has not been annulled. An administrative
measure which has not been annulled cannot of itself constitute a wrongful act on
the part of the administration inflicting damage upon those whom it affects. The
latter cannot therefore claim damages by reason of that measure. The Court cannot
by way of an action for compensation take steps which would nullify the legal effects
of a decision which, as stated, has not been annulled.101
A liability action thus had to be preceded by a successful (!) annulment action.
The Plaumann Court here insisted on a ‘certificate of illegality’ before even considering
the substantive merits of Union liability.
This dramatically changed in Lütticke.102
The case constitutes the ‘declaration
of independence’ for liability actions:
Article [340] was established by the Treaty as an independent form of action with a
particular purpose to fulfil within the system of actions and subject to conditions for its
use, conceived with a view to its specific purpose to fulfil within the system of actions
and subject to conditions for its use, conceived with a view to its specific purpose.103
101
Case 25/62, Plaumann, 108.
102
Case 4/69, Lütticke v. Commission [1971] ECR 325.
103
Ibid., para. 6.
104
Ibid. In the present case, the Court dealt with an infringement action for failure to act
under Art. 265 TFEU (see section 3(b) below), but the same result applies to annulment
According to the Court, it would be contrary to ‘the independent nature’ of
this action as well as to‘the efficacy of the general system of forms of action created
by the Treaty’ to deny admissibility of the damages action on the grounds
that it might lead to a similar result as an annulment action.104
Governmental Powers376
What are the procedural requirements for liability actions? The proceedings
may be brought against any Union action or inaction that is claimed to have
caused damage.The act (or omission) must normally be an ‘official act’, that is:
it must be attributable to the Union.105
Unlike Article 263 TFEU, there are no
limitations on the potential applicants: anyone who feels ‘wronged’ by a Union
(in)action may bring proceedings under Article 340(2) TFEU.106
Against whom does the action have to be brought?With the exception of the
European Central Bank,107
the provision only generically identifies the Union
as the potential defendant. However, the Court has clarified that ‘in the interests
of a good administration of justice’,the Union‘should be represented before the
Court by the institution or institutions against which the matter giving rise to
liability is alleged’.108
When will the action have to be brought? Unlike the strict two-month limitation
period for annulment actions, liability actions can be brought within a
five-year period.109
The procedural requirements for liability actions are thus
much more liberal than the procedural regime governing annulment actions.
actions; see Case 5/71, Schöppenstedt v. Council [1971] ECR 975, para. 3:‘The action for
damages provided for byArticles [268] and [340],paragraph 2,of theTreaty was introduced
as an autonomous form of action with a particular purpose to fulfil within the system of
actions and subject to conditions on its use dictated by its specific nature.It differs from an
application for annulment in that its end is not the abolition of a particular measure, but
compensation for damage caused by an institution in the performance of its duties.’
105
In the past,the European Court of Justice has insisted that the EUTreaties themselves – as
collective acts of the Member States – cannot be the basis of a liability action (see Case
169/73, Compagnie Continentale France v. Council [1975] ECR 117, para. 16). For institutional
acts, the Court has taken a teleological view on what constitutes the ‘Union’ (see
Case C-370/89,SGEEM & Etroy v.European Investment Bank [1993] ECR I-2583).In the
recent Ledra judgment (Joined Cases C-8/15P to C-10/15P,Ledra and others v.Commission
and European Central Bank, EU:C:2016:701), the Court has further elaborated this teleological
understanding.
106
See Case 118/83, CMC Cooperativa muratori e cementisti and others v. Commission [1985]
ECR 2325,para.31:‘Any person who claims to have been injured by such acts or conduct
must therefore have the possibility of bringing an action, if he is able to establish liability,
that is, the existence of damage caused by an illegal act or by illegal conduct on the part
of the [Union].’This also included the Member States (see A. Biondi and M. Farley, The
Right to Damages in European Law (Kluwer, 2009), 88).
107
Art. 340(3) TFEU. The provision specifically clarifies that the Bank as such – not the
European Union – will be called to pay damages.The ECB has an independent personality
(see Chapter 6, section 3(a)).
108
Joined Cases 63–9/72,Werhahn Hansamühle and others v.Council [1973] ECR 1229,para.7.
109
Art. 46 Statute of the Court:‘Proceedings against the Union in matters arising from noncontractual
liability shall be barred after a period of five years from the occurrence of
the event giving rise thereto.The period of limitation shall be interrupted if proceedings
are instituted before the Court of Justice or if prior to such proceedings an application is
made by the aggrieved party to the relevant institution of the Union. In the latter event
the proceedings must be instituted within the period of two months provided for in
Article 263 of the Treaty on the Functioning of the European Union; the provisions of
the second paragraph of Article 265 of the Treaty on the Functioning of the European
Judicial Powers I 377
b. Substantive Conditions: From Schöppenstedt to Bergaderm
The constitutional regime governing the substantive conditions for liability
actions may be divided into two historical phases.In the first phase,the European
Court distinguished between ‘administrative’ and ‘legislative’ Union acts.110
The
former were subject to a relatively low liability threshold.The Union would be
liable for (almost) any illegal action that had caused damage.111
By contrast, legislative
acts were subject to the so-called ‘Schöppenstedt formula’.112
This formula
stated as follows:
Union shall apply where appropriate.This Article shall also apply to proceedings against
the European Central Bank regarding non-contractual liability.’
110
Tridimas, General Principles (n. 34 above), 478ff.
111
See Case 145/83, Adams v. Commission [1985] ECR 3539, para. 44:‘[B]y failing to make
all reasonable efforts … the Commission has incurred liability towards the applicant in
respect of that damage.’ On the liability regime for administrative acts in this historical
phase, see M. van der Woude,‘Liability for Administrative Acts under Article 215(2) EC’,
inT.Heukels and A.McDonnell (eds.),The Action for Damages in Community Law (Kluwer,
1997), 109–28.
112
Case 5/71, Schöppenstedt v. Council [1971] ECR 975.
113
Ibid., para. 11 (emphasis added).
114
On the concept of a ‘superior rule’, see Tridimas, General Principles (n. 37 above), 480–2.
115
Case C-282/90, Vreugdenhil BV v. Commission [1992] ECR I-1937, paras. 20–1:‘In that
context,it is sufficient to state that the aim of the system of the division of powers between
the various [Union] institutions is to ensure that the balance between the institutions
provided for in the Treaty is maintained, and not to protect individuals. Consequently, a
failure to observe the balance between the institutions cannot be sufficient on its own to
engage the [Union’s] liability towards the traders concerned.’
116
See Joined Cases 83 and 94/76, 4, 15 and 40/77, Bayerische HNL Vermehrungsbetriebe and
others v. Council and Commission [1978] ECR 1209, para. 6:‘In a legislative field such as
the one in question, in which one of the chief features is the exercise of a wide discretion
essential for the implementation of the common agricultural policy, the [Union] does
not therefore incur liability unless the institution concerned has manifestly and gravely
disregarded the limits on the exercise of its powers.’
117
Case C-352/98P, Bergaderm et al. v. Commission [2000] ECR I-5291.
[W]here legislative action involving measures of economic policy is concerned, the
[Union] does not incur non-contractual liability for damage suffered by individuals as
a consequence of that action, by virtue of the provisions contained in Article [340],
second paragraph, of the Treaty, unless a sufficiently flagrant violation of a superior
rule of law for the protection of the individual has occurred.113
This formula made Union liability for legislative acts dependent on the breach
of a ‘superior rule’ of Union law, whatever that meant,114
which aimed to grant
rights to individuals.115
And the breach of that rule would have to be sufficiently
serious.116
This test was significantly‘reformed’in Bergaderm.117
The reason for this reform
was the Court’s wish to align the liability regime for breaches of European law
Governmental Powers378
Two important changes were reflected in the ‘Bergaderm formula’.120
First, the
Court abandoned the distinction between ‘administrative’ and ‘legislative’ acts.
The new test would apply to all Union acts regardless of their nature.121
Second, the Court dropped the idea that a ‘superior rule’ had to be infringed.
Henceforth, it was only necessary to show that the Union had breached a rule
intended to confer individual rights, that the breach was sufficiently serious, and
that the breach had caused damage.122
The second criterion is the most important
one; and the decisive test for finding that a breach of European law was
sufficiently serious was whether the Union ‘manifestly and gravely disregarded
the limits on its discretion’.123
One final question remains: can the Union ever be liable for lawful actions
that nevertheless cause damage? Some legal orders indeed recognise governmental
liability for lawful acts, where the latter demand a ‘special sacrifice’ from
a limited category of persons. The early Union legal order seemed averse to
where three conditions are met: the rule of law infringed must be intended to confer
rights on individuals; the breach must be sufficiently serious; and there must be a
direct causal link between the breach of the obligation resting on the State and the
damage sustained by the injured parties.119
by the Union with the liability regime governing breaches of European law by
the Member States.118
Today, European law confers a right to reparation:
118
Ibid.,para.41.This inspiration was‘mutual’for,as we shall see in Chapter 11,section 3,the
Court used Art. 340(2) TFEU as a rationale for the creation of a liability regime for the
Member States.
119
Case C-352/98P, Bergaderm, para. 42.
120
See C. Hilson,‘The Role of Discretion in EC Law on Non-contractual Liability’ (2005)
42 CML Rev. 676 at 682.
121
Case C-352/98P, Bergaderm, para. 46. See also Case C-282/05P, Holcim v. Commission
[2007] ECR I-2941, para. 48: ‘The determining factor in deciding whether there has
been such an infringement is not the general or individual nature of the act in question.
Accordingly, the applicant is not justified in submitting that the criterion of a sufficiently
serious breach of a rule of law applies only where a legislative act of the [Union] is at issue
and is excluded when, as in the present case, an individual act is at issue.’
122
For an overview of the three criteria in light of the case law, see K. Gutman, ‘The
Evolution of the Action for Damages against the European Union and its Place in the
System of Judicial Protection (2011) 48 CML Rev. 695.
123
Case C-352/98P, Bergaderm, para. 43. However, where there was no discretion,‘the mere
infringement of [Union] law may be sufficient to establish the existence of a sufficiently
serious breach’ (ibid., para. 44). For an extensive discussion on when the Commission
commits a sufficiently serious breach in its assessment in the context of competition law,
see Case T-351/03, Schneider v. Commission [2007] ECR II-2237.
124
In the words of Case 5/71,Schöppenstedt,para.11 (emphasis added):‘[t]he non-contractual
liability of the [Union] presupposes at the very least the unlawful nature of the act alleged
to be the cause of the damage’.
Judicial Powers I 379
this idea.124
Yet in Dorsch Consult,125
the General Court flirted with the possi-
bility.126
The Court of Justice has however put a – temporary – end to this in
FIAMM.127
It here held that by assuming ‘the existence of a regime providing
for non-contractual liability of the [Union] on account of the lawful pursuit by
it of its activities falling within the legislative sphere, the [General Court] erred
in law’.128
The Union will therefore not be liable for damage caused by actions
that it considers to be legal – even if they harm parties vested in the status quo.
3. Adjudicatory Powers I: Enforcement Actions
One of the essential tasks of courts is to apply and thereby enforce the law in disputes
between private and public parties.This judicial form of law enforcement
is ‘reactive’ because, unlike the ‘active’ enforcement by administrative authorities,
it needs to be initiated by a party outside the court.
The adjudication of European law follows,like the administration of European
law, a central and a decentralised route.The central route principally takes the
form of two types of enforcement actions:enforcement actions against a Member
State,and enforcement actions against the Union.With regard to the former,the
Treaties allow the Commission or a Member State to bring proceedings, where
they consider that a Member State has failed to fulfil an obligation under the
Treaties. But the Treaties also establish an infringement procedure against the
Union for a failure to act.
a. Enforcement Actions against Member States
Where a Member State breaches European law, the central way to ‘enforce’ the
EU Treaties is to bring that State to the European Court.129
As can be seen in
125
Case T-184/95, Dorsch Consult v. Council and Commission [1998] ECR II-667.
126
Ibid., para. 80.‘[I]n the event of the principle of [Union] liability for a lawful act being
recognised in [European] law, such liability can be incurred only if the damage alleged,
if deemed to constitute a “still subsisting injury”, affects a particular circle of economic
operators in a disproportionate manner by comparison with others (unusual damage) and
exceeds the limits of the economic risks inherent in operating in the sector concerned
(special damage), without the legislative measure that gave rise to the alleged damage
being justified by a general economic interest.’
127
Case C-120/06P, FIAMM et al. v. Council and Commission [2008] ECR I-6513.
128
Ibid., para. 179.
129
Exceptionally, and in the case of ‘a serious and persistent breach’ by a Member State of
the values of the Union it is not the Court but the ‘political forum’ of the European
Council that principally makes that determination (see Art. 7(2) TEU). Where such a
serious and persistent breach is found,the membership rights of a State may be suspended
(Art. 7(3) TEU). Art. 7 TEU stands behind the recent confrontations between the EU
and Hungary and Poland; and it is by far the most dramatic ‘enforcement’ action that the
Treaties know – albeit a political not a legal action. For a discussion of this extrajudicial
enforcement mechanism, see C. Closas and D. Kochenov, Reinforcing Rule of Law Oversight
in the European Union (Cambridge University Press, 2016).
Governmental Powers380
Figure 10.4, this does not happen too often (even if it happens more often to
some Member States).
The Union legal order envisages two potential applicants for enforcement
actions against a failing Member State: the Commission and another Member
State. The procedure governing the former scenario is set out in Article 258
TFEU; and the – almost – identical procedure governing the second scenario is
set out in Article 259 TFEU. Both procedures are – partly – inspired by international
law logic. For not only are individuals excluded from enforcing their
rights under that procedure, the European Court cannot repeal national laws
that violate European law. Its judgment will simply ‘declare’ that a violation of
European law has taken place. However, as we shall see below, this declaration
may be backed up by financial sanctions.
aa. The Procedural Conditions under Article 258
Enforcement actions against a Member State are ‘the ultima ratio enabling the
[Union] interests enshrined in theTreat[ies] to prevail over the inertia and resistance
of Member States’.130
They are typically brought by the Commission.131
It
is the Commission, acting in the general interest of the Union, that is charged
with ensuring that the Member States give effect to European law.132
Figure 10.4 Infringement Proceedings Brought against Member States
BE
BE
BG
BG
CZ
CZ
DK
DK
DE
DE
EE
EE
IE
IE
EL
EL
ES
ES
FR
FR
HR
HR
IT
IT
CY
CY
LV
LV
LT
LT
LU
LU
HU
HU
MT
MT
NL
NL
AT
AT
PL
PL
PT
PT
RO
RO
SI
SI
SK
SK
FI
FI
SE
SE
UK
UK
0
100
200
300
400
500
600
700
Total
383 9 32 41 289 22 206 407 245 416 0 642 12 1 3 269 16 16 147 139 77 199 7 15 14 58 54 140 3,859
1952–2016
130
Case 20/59, Italy v. High Authority [1960] ECR 325 at 339.
131
The following section therefore concentrates on proceedings brought by the Commission.
The procedure under Art. 259 TFEU, in any event, also requires Member States to bring
the matter before the Commission (para.2).However,unlike the procedural regime under
Art.258TFEU,the matter will go to the Court even in the absence of a reasoned opinion
by the Commission (para. 4). Member States very rarely bring actions against another
Member State, but see Case C-145/04, Spain v. United Kingdom [2006] ECR I-7917.
132
Case C-431/92, Commission v. Germany [1995] ECR I-2189, para. 21: ‘In exercising its
powers under Articles [17 TEU] and [258] of the [FEU] Treaty, the Commission does
not have to show that there is a specific interest in bringing an action. Art. [258] is not
Judicial Powers I 381
The procedural regime for enforcement actions brought by the Commission
is set out in Article 258 TFEU, which states:
intended to protect the Commission’s own rights. The Commission’s function, in the
general interest of the [Union], is to ensure that the Member States give effect to the
Treaty and the provisions adopted by the institutions thereunder and to obtain a declaration
of any failure to fulfil the obligations deriving therefrom with a view to bringing it
to an end.’
133
Case 293/85, Commission v. Belgium [1988] ECR 305, para. 13.
134
There are exceptions to this rule.The most important practical exception can be found in
the shortened procedure in the context of the Union’s state aid provisions (see Art.108(2)
TFEU).
135
The Court has insisted that the Member State must – again – be given a reasonable period
to correct its behaviour; see Case 293/85, Commission v. Belgium [1988] ECR 305, para.
14: ‘[T]he Commission must allow Member States a reasonable period to reply to the
letter of formal notice and to comply with a reasoned opinion, or, where appropriate, to
prepare their defence. In order to determine whether the period allowed is reasonable,
account must be taken of all the circumstances of the case.Thus very short periods may be
justified in particular circumstances, especially where there is an urgent need to remedy a
breach or where the Member State concerned is fully aware of the Commission’s views
long before the procedure starts.’
136
See Arts. 275 and 276 TFEU.
137
Case C-61/94, Commission v. Germany (IDA) [1996] ECR I-3989.
If the Commission considers that a Member State has failed to fulfil an obligation
under the Treaties, it shall deliver a reasoned opinion on the matter after giving the
State concerned the opportunity to submit its observations. If the State concerned
does not comply with the opinion within the period laid down by the Commission,
the latter may bring the matter before the Court of Justice of the European Union.
The provision clarifies that before the Commission can bring the matter to
the Court, it must pass through an administrative stage. The purpose of this
pre-litigation stage is ‘to give the Member State concerned an opportunity, on
the one hand, to comply with its obligations under [European] law and, on
the other, to avail itself of its right to defend itself against the complaints made
by the Commission’.133
This administrative stage expressly requires a ‘reasoned
opinion’, and before that – even if not expressly mentioned in Article 258 – a
‘letter of formal notice’.134
In the ‘letter of formal notice’, the Commission will
notify the State that it believes it to violate European law, and ask it to submit
its observations.Where the Commission is not convinced by the explanations
offered by a Member State, it will issue a ‘reasoned opinion’; and after that second
administrative stage,135
it will go to court.
What violations of European law may be litigated under the enforcement
procedure? With the general exceptions mentioned above,136
the Commission
can raise any violation of European law,including breaches of the Union’s international
agreements.137
However, the breach must be committed by the ‘State’.
Governmental Powers382
This includes its legislature, its executive and – in theory – its judiciary.138
The
Member State will also be responsible for violations of Union law by territorially
autonomous regions.139
And even the behaviour of its nationals may –
exceptionally – be attributed to the Member State.140
Are there any defences that a State may raise to justify its breach of European
law? Early on, the Court clarified that breaches of European law by one
Member State cannot justify breaches of another. In Commission v. Luxembourg
and Belgium,141
the defendants had argued that ‘since international law allows
a party, injured by the failure of another party to perform its obligations, to
withhold performance of its own, the Commission has lost the right to plead
infringement of theTreaty’.142
The Court did not accept this ‘international law’
logic of the European Treaties.The Treaties were ‘not limited to creating reciprocal
obligations between the different natural and legal persons to whom [they
are] applicable, but establish … a new legal order, which governs the powers,
rights and obligations of the said persons, as well as the necessary procedures
for taking cognisance of and penalising any breach of it’.143
The binding effect
of European law was thus comparable to the effect of ‘ ‘institutional’ law.144
The
Court has also denied the availability of ‘internal’ constitutional problems,145
or budgetary restraints, as justifications.146
However, one of the arguments that
the Court has accepted in the past is the idea of force majeure in an emergency
situation.147
bb. Judicial Enforcement through Financial Sanctions
The European Court is not entitled to nullify national laws that violate
European law. It may only ‘declare’ national laws or practices incompatible with
138
The Court of Justice has been fairly reluctant to find that a national court has violated
the Treaty. In the past, it has preferred to attribute the fact that a national judiciary persistently
interpreted national law in a manner that violated European law to the legislature’s
failure to adopt clearer national laws; see Case C-129/00, Commission v. Italy [2003]
ECR I-14637. On this point, see M.Taborowski,‘Infringement Proceedings and Noncompliant
National Courts’ (2012) 49 CML Rev. 1881.
139
See Case C-383/00, Commission v. Germany [2002] ECR I-4219, para. 18:‘the Court has
repeatedly held that, a Member State may not plead provisions, practices or situations in
its internal legal order, including those resulting from its federal organisation, in order to
justify a failure to comply with the obligations’.
140
Case 249/81, Commission v. Ireland (Buy Irish) [1982] ECR 4005.
141
Joined Cases 90–1/63, Commission v. Luxembourg and Belgium [1964] ECR 625.
142
Ibid., 631. 143
Ibid.
144
P.Pescatore,The Law of Integration:Emergence of a New Phenomenon in International Relations
Based on the Experience of the European Communities (Sijthoff, 1974), 67 and 69.
145
See Case C-39/88, Commission v. Ireland [1990] ECR I-4271, para. 11:‘a Member State
may not plead internal circumstances in order to justify a failure to comply with obligations
and time-limits resulting from [European] law’.
146
See Case 30/72, Commission v. Italy [1973] ECR 161.
147
For an excellent discussion of the case law, see L. Prete and B. Smulders,‘The Coming of
Age of Infringement Proceedings’ (2010) 47 CML Rev. 9 at 44.
Judicial Powers I 383
European law.148
Where the Court has found that a Member State has failed to
fulfil an obligation under the Treaties, ‘the State shall be required to take the
necessary measures to comply with the judgment of the Court’.149
Inspired by
international law logic, the European legal order here builds on the normative
distinctiveness of European and national law. It remains within the competence
of the Member States to remove national laws or practices that are incompatible
with European law.
Nonetheless, the Union legal order may ‘punish’ violations by imposing
financial sanctions on a recalcitrant State.The sanction regime for breaches by a
Member State is set out in Article 260(2) and (3) TFEU. Importantly, financial
sanctions will not automatically follow from every breach of European law.
According to Article 260(2)TFEU,the Commission may only apply for a‘lump
sum or penalty payment’,150
where a Member State has failed to comply with
a judgment of the Court.The special enforcement action is thus confined to the
enforcement of one type of Union act: Court judgments.And even in this limited
situation,the Commission must bring a second (!) case before the Court.151
There is only one exception to the requirement of a second judgment.This
‘exceptional’ treatment corresponds to a not too exceptional situation: the failure
of a Member State properly to transpose a ‘directive’.152
Where a Member
State fails to fulfil its obligation‘to notify measures transposing a Directive adopted
under a legislative procedure’,153
the Commission can apply for a financial sanction
in the first enforcement action.The payment must take effect on the date set by the
Court in its judgment, and is thus directed at this specific breach of European law.
b. Enforcement Actions against the Union: Failure to Act
Enforcement actions primarily target a Member State’s failure to act (properly).
However,‘infringement’ proceedings may also be brought against Union
148
Cases 15 and 16/76, France v. Commission [1979] ECR 32.
149
Art. 260(1) TFEU.
150
The Court has held that Art. 265 allows it to impose a ‘lump sum’ and a ‘penalty payment’
at the same time (see Case C-304/02, Commission v. France (French Fisheries II) [2005]
ECR I-6262). For one of the more spectacular orders, see Case C-196/13, Commission
v. Italy, EU:C:2014:2407. For failure to comply with a 2007 judgment against Italy, the
country was ordered to pay a lump sum of about €40 million and to make a regular penalty
payment of the same amount for each six-month period of delay.
151
The Court has softened this procedural requirement somewhat by specifically punishing
‘general and persistent’ infringements; see Case C-494/01 Commission v. Ireland (Irish
Waste) [2005] ECR I-3331.For an extensive discussion of this type of infringement,see P.
Wennerås,‘A New Dawn for Commission Enforcement under Articles 226 and 228 EC:
General and Persistent (GAP) Infringements, Lump Sums and Penalty Payments’ (2006)
43 CML Rev. 31 at 33–50.
152
On the legal instrument ‘directive’, see Chapter 3, section 3.
153
Art. 260(3) TFEU. For a brief overview of the sanctioning activity under Art. 260(3), see
E.Várnay,‘Sanctioning under Article 260(3) TFEU: Much Ado About Nothing?’ (2017)
23 European Public Law 301.
Governmental Powers384
institutions.Actions for failure to act are thereby governed by Article 265TFEU,
which states:
154
Despite the more restrictive wording (‘failed to address to that person’), the Court is
likely to read the ‘direct and individual concern’ criterion into Art. 265 TFEU. For past
jurisprudence to that effect, see Case 247/87, Star Fruit Co. v. Commission [1989] ECR
291, para. 13:‘It must also be observed that in requesting the Commission to commence
proceedings pursuant to Article [258] the applicant is in fact seeking the adoption of acts
which are not of direct and individual concern to it within the meaning of the [fourth]
paragraph of Article [263] and which it could not therefore challenge by means of an
action for annulment in any event.’ See also Case C-68/95, T. Port GmbH & Co. KG v.
Bundesanstalt für Landwirtschaft und Ernährung [1996] ECR I-6065, para. 59:‘It is true that
the third paragraph ofArticle [265] of theTreaty entitles legal and natural persons to bring
an action for failure to act when an institution has failed to address to them any act other
than a recommendation or an opinion.The Court has, however, held that Articles [263]
and [265] merely prescribe one and the same method of recourse. It follows that, just as
the fourth paragraph of Article [263] allows individuals to bring an action for annulment
against a measure of an institution not addressed to them provided that the measure is
of direct and individual concern to them, the third paragraph of Article [265] must be
interpreted as also entitling them to bring an action for failure to act against an institution
which they claim has failed to adopt a measure which would have concerned them in
the same way.The possibility for individuals to assert their rights should not depend upon
whether the institution concerned has acted or failed to act.’
Should the European Parliament, the European Council, the Council, the Commission
or the European Central Bank, in infringement of the Treaties, fail to act, the Member
States and the other institutions of the Union may bring an action before the Court
of Justice of the European Union to have the infringement established. This Article
shall apply, under the same conditions, to bodies, offices and agencies of the Union
which fail to act.
The action shall be admissible only if the institution, body, office or agency concerned
has first been called upon to act. If, within two months of being so called
upon, the institution, body, office or agency concerned has not defined its position,
the action may be brought within a further period of two months.
Any natural or legal person may, under the conditions laid down in the preceding
paragraphs, complain to the Court that an institution, body, office or agency of the
Union has failed to address to that person any act other than a recommendation or
an opinion.
An action for failure to act may thus be brought against any Union institution
or body – with the exception of the Court of Auditors and the European
Court. It can be brought by another Union institution or body, a Member State
as well as a private party. (And while Article 265 TFEU makes no express distinctions
with regard to the standing requirements of public and private applicants,
it seems that the Court mirrors its jurisprudence under Article 263(4)
TFEU here.)154
Judicial Powers I 385
What are the procedural stages of this action? As with enforcement actions
against Member States,the procedure is divided into a (shortened) administrative
and a judicial stage. The judicial stage will only commence once the relevant
institution has been ‘called upon to act’, and has not ‘defined its position’ within
two months.155
What types of ‘inactions’ can be challenged? In its early jurisprudence, the
Court appeared to interpret the scope of Article 265 in parallel with the scope
of Article 263.156
This suggested that only those inactions with (external) legal
effects might be challenged.157
However, the wording of the provision points
the other way – at least for non-private applicants.And this wider reading was
indeed confirmed in Parliament v.Council (Comitology),158
where the Court found
that ‘[t]here is no necessary link between the action for annulment and the
action for failure to act’.159
Actions for failure to act can thus also be brought
in relation to ‘preparatory acts’.160
The material scope of Article 265 is, in this
respect, wider than that of Article 263.
However, in one important respect the scope of Article 265 is much smaller
than that of Article 263. For the European Court has added an ‘unwritten’ limitation
that cannot be found in the text of Article 265. It insists that a finding of
a failure to act requires the existence of an obligation to act.Where an institution
has ‘the right, but not the duty’ to act, no failure to act can ever be established.161
This is, for example, the case with regard to the Commission’s competence
to bring enforcement actions under Article 258 TFEU. Under this article ‘the
Commission is not bound to commence the proceedings provided for in that
provision but in this regard has a discretion which excludes the right for individuals
to require that institution to adopt a specific position’.162
The existence of
institutional discretion thus excludes an obligation to act.
In Parliament v. Council (CommonTransport Policy),163
the Court offered further
commentary on what the existence of an obligation to act requires. Parliament
155
On what may count as a ‘defined’ position, see Case 377/87, Parliament v. Council [1988]
ECR 4017; and Case C-25/91, Pesqueras Echebastar v. Commission [1993] ECR I-1719.
156
Case 15/70, Chevallery v. Commission [1970] ECR 975, para. 6:‘[T]he concept of a measure
capable of giving rise to an action is identical in Articles [263] and [265], as both
provisions merely prescribe one and the same method of recourse.’
157
On this point, see section 1(a) above.
158
Case 302/87, Parliament v. Council [1988] ECR 5615.
159
Ibid., para. 16: ‘There is no necessary link between the action for annulment and the
action for failure to act.This follows from the fact that the action for failure to act enables
the European Parliament to induce the adoption of measures which cannot in all cases be
the subject of an action for annulment.’
160
Case 377/87, Parliament v. Council [1988] ECR 4017.
161
Case 247/87, Star Fruit Co. v. Commission, esp. para. 12.
162
Ibid., para. 11. There is however a Commission duty to act on a complaint claiming a
violation of EU competition law (see CaseT-442/07, Ryanair v. Commission [2011] ECR
II-333).
163
Case 13/83, Parliament v. Council [1985] ECR 1513.
Governmental Powers386
had brought proceedings against the Council claiming that it had failed to lay
down a framework for a common transport policy.The Council responded by
arguing that a failure to act under Article 265 ‘was designed for cases where the
institution in question has a legal obligation to adopt a specific measure and that
it is an inappropriate instrument for resolving cases involving the introduction
of a whole system of measures within the framework of a complex legislative
process’.164
The Court joined the Council and rejected the idea that enforcement
proceedings could be brought for a failure to fulfil the general obligation to
develop a Union policy.The failure to act would have to be‘sufficiently defined’;
and this would only be the case, where the missing Union act can be ‘identified
individually’.165
What are the consequences of an established failure to act on the part of the
Union? According to Article 266, the institution ‘whose failure to act has been
declared contrary to theTreaties shall be required to take the necessary measures
to comply with the judgment of the Court of Justice of the European Union’.
And, in the absence of an express time limit for such compliance, the Court
requires that the institution ‘has a reasonable period for that purpose’.166
4. Adjudicatory Powers II: Preliminary Rulings
The European Court would not be able, on its own, to shoulder the adjudicatory
task of deciding European law disputes.Yet, unlike the US constitutional
order,167
the European Union has not developed a parallel system of federal
courts designed to apply Union law.The Union is based on a system of cooperative
federalism: all national courts are entitled and obliged to apply European
law to disputes before them.168
The general role of national courts in the judicial
application of European law will be extensively discussed in Chapter 11.This
section however wishes to focus on the Union procedure that has allowed the
164
Ibid., para. 29 (emphasis added).
165
Ibid., para. 37. The Court thus held in para. 53 that ‘the absence of a common policy
which theTreaty requires to be brought into being does not in itself necessarily constitute
a failure to act sufficiently specific in nature to form the subject of an action under Article
[265]’.
166
Ibid., para. 69.
167
On US judicial federalism,see R. H.Fallon et al.,Hart andWechsler’s the Federal Courts and
the Federal System (Foundation Press, 1996); E. Chemerinski, Federal Jurisdiction (Aspen,
2007).
168
We saw in Chapter 4 that this duty applies to every national court, see: Case 106/77,
Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629, para. 21: ‘every
national court must, in a case within its jurisdiction, apply [European] law in its entirety
and protect rights which the latter confers on individuals’. On the ‘cooperative’ nature
of the Art. 267 procedure, see recently Case C-160/14, Ferreira da Silva e Brito and others
v. Estado Português, EU:C:2015:565, para. 37:‘[T]he procedure laid down in Article 267
TFEU is an instrument for cooperation between the Court of Justice and the national
courts[.]’
Judicial Powers I 387
European Court of Justice to guarantee some uniformity in the decentralised
adjudication of European law: the preliminary reference procedure.
From the beginning,theTreaties contained a mechanism for the interpretative
assistance of national courts.Where national courts encounter problems relating
to the interpretation of European law, they could ask ‘preliminary questions’
to the European Court.The questions are ‘preliminary’, since they precede the
final application of European law by the national court.Thus, importantly: the
European Court will not ‘decide’ the case. It is only indirectly involved in the
judgment delivered by the national court;and for that reason preliminary rulings
are called ‘indirect actions’. The preliminary rulings procedure constitutes the
cornerstone of the Union’s judicial federalism; and this federalism is cooperative
in nature because the European Court and the national courts collaborate in the
adjudication of a single case.
The procedure for preliminary rulings is set out in Article 267 TFEU, which
reads:
169
The (omitted) fourth paragraph states:‘If such a question is raised in a case pending before
a court or tribunal of a Member State with regard to a person in custody, the Court of
Justice of the European Union shall act with the minimum of delay.’ According to Art.
23a of the Court’s Statute, there may exist an ‘urgent preliminary procedure’ (in French:
‘procedure préjudicielle d’urgence’ or ‘PPU’) in the area of freedom, security and justice.
On the ‘PPU’, see C. Barnard,‘The PPU: Is It Worth the Candle? An Early Assessment’
(2009) 34 EL Rev. 281.
[1] The Court of Justice of the European Union shall have jurisdiction to give preliminary
rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or
agencies of the Union;
[2] Where such a question is raised before any court or tribunal of a Member State,
that court or tribunal may, if it considers that a decision on the question is necessary
to enable it to give judgment, request the Court to give a ruling thereon.
[3] Where any such question is raised in a case pending before a court or tribunal
of a Member State against whose decisions there is no judicial remedy under
national law, that court or tribunal shall bring the matter before the Court.169
The provision establishes a constitutional nexus between the central and the
decentralised adjudication of European law.This section looks at four aspects
of the procedure.We start by analysing the jurisdiction of the European Court
under the preliminary reference procedure (paragraph 1). We then move to
the conditions for a preliminary ruling (paragraph 2). A third step investigates
which national courts are obliged to make a reference (paragraph 3). Finally,
we shall analyse the nature and effect of preliminary rulings in the Union legal
order.
Governmental Powers388
a. Paragraph 1: The Jurisdiction of the European Court
The European Court’s jurisdiction, set out in paragraph 1, covers all Union
law – including international agreements of the Union.170
It is however limited
to European law:‘The Court is not entitled,within the framework of Article [267
TFEU] to interpret rules pertaining to national law.’171
Nor can it theoretically
give a ruling on the compatibility of national rules with Union law.
The Court’s competence with regard to European law extends to questions
pertaining to the ‘validity and interpretation’ of Unions law. Preliminary references
may thus be made in relation to two judicial functions.They can concern
the validity of Union law;172
and in exercising its judicial review function, the
European Court will be confined to providing a ruling on the validity of acts
below the Treaties. National courts can however equally ask about the interpretation
of European law.This includes all types of European law – ranging from the
deepest constitutional foundations to the loftiest soft law.
The application of European law is – theoretically – not within the power of
the Court. Article 267 ‘gives the Court no jurisdiction to apply the Treat[ies] to a
specific case’.173
However,the distinction between‘interpretation’and‘application’
is sometimes hard to make.The Court has tried to explain it as follows:
170
Case 181/73,Haegemann [1974] ECR 449.On the more complex jurisdictional rules with
regard to mixed agreements, see P. Koutrakos,‘The Interpretation of Mixed Agreements
under the Preliminary Reference Procedure’ (2002) 7 European Foreign Affairs Review 25.
171
Case 75/63, Hoekstra (née Unger) [1964] ECR 177, para. 3.
172
On this point, see section 1(d/bb) above.
173
Case 6/64, Costa v. ENEL [1964] ECR 585 at 592 (emphasis added).
174
Joined Cases 28–30/62, Da Costa et al. v. Netherlands Inland Revenue Administration [1963]
ECR 31 at 38.
175
For two excellent analyses of this category of cases,see G.Davies,‘The Division of Powers
between the European Court of Justice and National Courts’ Constitutionalism WebPapers
3/2004 (SSRN Network: www.ssrn.com); T. Tridimas, ‘Constitutional Review
of Member State Action:The Virtues and Vices of an Incomplete Jurisdiction’ (2011) 9
International Journal of Constitutional Law 737.
176
See M. Jarvis, ‘The Sunday Trading Episode: In Defence of the Euro-defence’ (1995) 44
ICLQ 451.
When it gives an interpretation of the Treat[ies] in a specific action pending before
a national court, the Court limits itself to deducing the meaning of the [European]
rules from the wording and spirit of the Treat[ies], it being left to the national court to
apply in the particular case the rules which are thus interpreted.174
Theoretically, this should mean that the Court of Justice cannot decide
whether a national law, in fact, violates Union law.And yet, the Court has often
made this very assessment.175
A famous illustration of the blurred line between ‘interpretation’ and ‘application’
are the ‘Sunday trading cases’.176
Would the national prohibition on trading
on Sundays conflict with the Union’s internal market provisions? Preliminary
Judicial Powers I 389
references had been made by a number of English courts to obtain an interpretation
of the EU Treaties’ free movement of goods provisions.The Court found
that national rules governing opening hours could be justified on public interest
grounds, and originally asked the referring national court ‘to ascertain whether
the effects of such national rules exceed what is necessary to achieve the aim in
view’.177
Yet the decentralised application of this proportionality test led to judicial
chaos in the United Kingdom. Simply put, different national courts decided
differently!The European Court thus ultimately took matters into its own hands
and centrally applied the proportionality test.178
And, in holding that the British
Sunday trading rules were not disproportionate interferences with the internal
market, the Court crossed the line between ‘interpretation’ and ‘application’ of
the Treaties.
b. Paragraph 2: The Conditions for a Preliminary Ruling
Article 267(2)TFEU defines the competence of national courts to refer preliminary
questions.The provision allows ‘any court or tribunal of a Member State’
to ask a European law question that ‘is necessary to enable it to give judgment’.
Are there conditions on ‘who’ can refer ‘what’ question to the European Court?
The two aspects have been subject to an extended judicial commentary and will
be discussed in turn.
aa. ‘Who’: National Courts and Tribunals
The formulation ‘court or tribunal’ in Article 267 only refers to judicial authorities.This
excludes administrative authorities, which have indeed been systematically
excluded from the scope of the judicial cooperation procedure.179
177
Case C-145/88, Torfaen Borough Council [1989] ECR I-3851, para. 15.
178
Case C-169/91, Stoke-on-Trent v. B&Q [1992] ECR I-6635, paras. 12–14:‘As far as that
principle is concerned, the Court stated in its judgment in theTorfaen Borough Council
case that such rules were not prohibited by Article [34] of the [FEU] Treaty where the
restrictive effects on [Union] trade which might result from them did not exceed the
effects intrinsic to such rules and that the question whether the effects of those rules actually
remained within that limit was a question of fact to be determined by the national
court. In its judgments in the Conforama and Marchandise cases, however, the Court
found it necessary to make clear, with regard to similar rules,that the restrictive effects on
trade which might result from them did not appear to be excessive in relation to the aim
pursued.The Court considered that it had all the information necessary for it to rule on
the question of the proportionality of such rules and that it had to do so in order to enable
national courts to assess their compatibility with [European] law in a uniform manner
since such an assessment cannot be allowed to vary according to the findings of fact made
by individual courts in particular cases.’
179
See e.g. Case C-24/92, Corbiau [1993] ECR I-1277; Case C-53/03, Syfait et al. v.
GlaxoSmithKline [2005] ECR I-4609.
Governmental Powers390
But what exactly is a‘court or tribunal’that can refer questions to the Court of
Justice?TheTreaties provide no positive definition.Would the concept therefore
fall within the competence of the Member States? Unsurprisingly, the European
Court has not accepted this and has provided a European definition of the phrase.
Its definition is extremely wide. In Dorsch Consult,180
the Court thus held:
In order to determine whether a body making a reference is a court or tribunal for
the purposes of Article [267] of the Treaty, which is a question governed by [Union]
law alone, the Court takes account of a number of factors, such as whether the body
is established by law, whether it is permanent, whether its jurisdiction is compulsory,
whether its procedure is inter partes, whether it applies rules of law and whether it
is independent.181
The last criterion is often controlling.Therefore,an authority that is not independent
from the State’s administrative branch is not a court or tribunal in the
meaning of European law.182
The enormous breadth of this definition is illustrated in Broekmeulen.183
The
plaintiff had obtained a medical degree from Belgium and tried to register as a
‘General Practitioner’ in the Netherlands.The registration was refused on the
ground that Dutch professional qualifications were not satisfied. The plaintiff
appealed before the ‘Appeals Committee for General Medicine’– a professional
body set up under private law.This Appeals Committee was not a court or tribunal
under Dutch law. But would it nonetheless be a ‘court or tribunal’ under
Article 267 (2); and, as such, be entitled to make a preliminary reference? The
European Court found as follows:
In order to deal with the question of the applicability in the present case of Article
[267 TFEU], it should be noted that it is incumbent upon Member States to take the
necessary steps to ensure that within their territory the provisions adopted by the
[Union] institutions are implemented in their entirety. If, under the legal system of
a Member State, the task of implementing such provisions is assigned to a professional
body acting under a degree of governmental supervision, and if that body, in
180
Case C-54/96,Dorsch Consult Ingenieugesellschaft v.Bundesbaugesellschaft Berlin [1997] ECR
I-4961.
181
Ibid., para. 23.
182
Case C-53/03, Syfait et al. v. GlaxoSmithKline. NCAs are consequently not (!) allowed to
use theArt.267 procedure as they are considered to be part of the‘executive branch’– not
the judicial branch. If they have a question with regard to EU competition law, they thus
cannot ask the European Court of Justice but must, on the contrary, ask the European
Commission for guidance. On the general question, whether NCAs should be considered
‘courts or tribunals’ in the sense of Art. 267, see A. Komninos,‘Article 234 EC and
National Competition Authorities in the Era of Decentralisation’ (2004) 29 EL Rev. 106.
183
Case 246/80, Broekmeulen v. Huisarts Registratie Commissie [1981] ECR 2311.
Judicial Powers I 391
conjunction with the public authorities concerned, creates appeal procedures which
may affect the exercise of rights granted by [European] law, it is imperative, in order to
ensure the proper functioning of [Union] law, that the Court should have an opportunity
of ruling on issues of interpretation and validity arising out of such proceedings.
As a result of all the foregoing considerations and in the absence, in practice, of any
right of appeal to the ordinary courts, the Appeals Committee, which operates with
the consent of the public authorities and with their cooperation, and which, after
an adversarial procedure, delivers decisions which are recognised as final, must, in a
matter involving the application of [European] law, be considered as a court or tribunal
of a Member State within the meaning of Article [267 TFEU].184
Can higher national courts limit the power of a lower national court to refer
preliminary questions? The European legal order has given short shrift to any
attempt to break the cooperative nexus between the European Court and each
level of the national judiciary. In Rheinmühlen,185
the Court thus held that ‘a rule
of national law whereby a court is bound on points of law by the rulings of a
superior court cannot deprive the inferior courts of their power to refer to the
Court questions of interpretation of [Union] law involving such rulings’.186
For
if inferior courts could not refer to the Court of Justice,‘the jurisdiction of the
latter to give preliminary rulings and the application of [European] law at all
levels of the judicial systems of the Member States would be compromised’.187
Any
national court or tribunal, at any level of the national judicial hierarchy, and at
any stage of its judicial procedure, is thus entitled to refer a preliminary question
to the European Court of Justice.188
Even national rules allowing for an appeal
against the decision of the national court to refer a preliminary question will
violate ‘the autonomous jurisdiction which Article [267 TFEU] confers on the
referring court’.189
184
Ibid., paras. 16–17.
185
Case 166/73, Rheinmühlen-Düsseldorf [1974] ECR 33.
186
Ibid., para. 4.
187
Ibid. For a recent confirmation, see Case C-173/09, Elchinov v. Natsionalna zdravnoosiguritelna
kasa [2010] ECR I-889; Case C-416/10, Križan and others, EU:C:2013:8.
188
This European entitlement cannot be transformed into a national obligation; see Case
C-555/07,Kücükdeveci v.Swedex [2010] ECR I-365,para.54:‘The possibility thus given to
the national court by the second paragraph of Article 267TFEU of asking the Court for a
preliminary ruling before disapplying the national provision that is contrary to European
Union law cannot, however, be transformed into an obligation because national law does
not allow that court to disapply a provision it considers to be contrary to the constitution
unless the provision has first been declared unconstitutional by the Constitutional Court.
By reason of the principle of the primacy of European Union law, which extends also
to the principle of non-discrimination on grounds of age, contrary national legislation
which falls within the scope of European Union law must be disapplied.’
189
Case C-210/06, Cartesio [2008] ECR I-9641, para. 95:‘Where rules of national law apply
which relate to the right of appeal against a decision making a reference for a preliminary
ruling, and under those rules the main proceedings remain pending before the referring
Governmental Powers392
For the English judicial hierarchy, the judicial federalism constructed by the
European Court thus looks like Figure 10.5.
bb. ‘What’: Necessary Questions
National courts are entitled to request a preliminary ruling, where – within
a pending case – there is a ‘question’ that they consider ‘necessary’ to give
judgment.190
In the past, the European Court has been eager to encourage national courts to
ask preliminary questions.For these questions offered the Court formidable opportunities
to say what the European constitution ‘is’.191
Thus, even where questions
were ‘imperfectly formulated’, the Court was willing to extract the ‘right’ ones.192
Moreover, the Court will generally not ‘criticise the grounds and purpose of the
request for interpretation’.193
In the words of a seminal judgment on the issue:
court in their entirety, the order for reference alone being the subject of a limited appeal,
the autonomous jurisdiction which Article [267TFEU] confers on the referring court to
make a reference to the Court would be called into question, if – by varying the order
for reference, by setting it aside and by ordering the referring court to resume the proceedings
– the appellate court could prevent the referring court from exercising the right,
conferred on it by the [FEU] Treaty, to make a reference to the Court.’
190
Case 338/85, Pardini v. Ministero del Commercio con l’Estero and BancaToscana [1988] ECR
2041, para. 11:‘It follows that a national court or tribunal is not empowered to bring a
matter before the Court by way of a reference for a preliminary ruling unless a dispute
is pending before it in the context of which it is called upon to give a decision capable
of taking into account the preliminary ruling. Conversely, the Court of Justice has no
jurisdiction to hear a reference for a preliminary ruling when at the time it is made the
procedure before the court making it has already been terminated.’
191
In the famous phrase by C. E. Hughes (as quoted by E. Corwin, ‘Curbing the Court’
(1936) 26 American Labor Legislation Review 85): ‘We are under a Constitution, but the
Constitution is what the judges say it is[.]’
192
Case 6/64, Costa v. ENEL [1964] ECR 585, 593:‘[T]he Court has the power to extract
from a question imperfectly formulated by the national court those questions which
alone pertain to the interpretation of the Treaty.’
193
Ibid.
Figure 10.5 Preliminary Rulings under Article 267
Supreme Court
Court of Appeal
High Court
County Court(s)
CourtofJusticeofthe
EuropeanUnion
Judicial Powers I 393
As regards the division of jurisdiction between national courts and the Court of
Justice under Article [267] of the [FEU] Treaty the national court, which is alone in
having a direct knowledge of the facts of the case and of the arguments put forward
by the parties, and which will have to give judgment in the case, is in the best position
to appreciate, with full knowledge of the matter before it, the relevance of the
questions of law raised by the dispute before it and the necessity for a preliminary
ruling so as to enable it to give judgment.194
194
Case 83/78, Pigs Marketing Board v. Raymond Redmond [1978] ECR 2347, para. 25.
195
Case 104/79, Foglia v. Novello [1980] ECR 745.
196
G. Bebr, ‘The Existence of a Genuine Dispute: An Indispensable Precondition for the
Jurisdiction of the Court under Article 177 EEC?’ (1980) 17 CML Rev. 525.
197
Case 104/79, Foglia, paras. 11–13:‘The duty of the Court of Justice under Article [267]
of the [FEU] Treaty is to supply all courts in the [Union] with the information on the
interpretation of [European] law which is necessary to enable them to settle genuine disputes
which are brought before them.A situation in which the Court is obliged by the
expedient of arrangements like those described above to give rulings would jeopardise the
whole system of legal remedies available to private individuals to enable them to protect
themselves against tax provisions which are contrary to the Treaty.This means that the
questions asked by the national court, having regard to the circumstances of this case, do
not fall within the framework of the duties of the Court of Justice under Article [267]
of the Treaty.The Court has accordingly no jurisdiction to give a ruling on the question
asked by the national court.’
198
Case 244/80, Foglia v. Novello (2) [1981] ECR 3045, para. 18.
199
Ibid., para. 19.
Nonetheless,in very exceptional circumstances the Court will reject a request
for a preliminary ruling. This happened in Foglia v. Novello (No. 1),195
where
the Court insisted that questions referred to it must be raised in a ‘genuine’
dispute.196
Where the parties to the national dispute agreed, in advance, on the
desirable outcome, the Court will decline jurisdiction.197
In a sequel to this case,
the Court explained this jurisdictional limitation as follows:
[T]he duty assigned to the Court by Article [267] is not that of delivering advisory
opinions on general or hypothetical questions but of assisting in the administration
of justice in the Member States. It accordingly does not have jurisdiction to reply
to questions of interpretation which are submitted to it within the framework of
procedural devices arranged by the parties in order to induce the Court to give its
views on certain problems of [European] law which do not correspond to an objective
requirement inherent in the resolution of a dispute.198
The Court of Justice has consequently imposed some jurisdictional control
on requests for preliminary rulings.To prevent an abuse of the Article 267 procedure,
the European Court will thus ‘check, as all courts must, whether it has
jurisdiction’.199
Yet, the Court has been eager to emphasise that it wishes ‘not
Governmental Powers394
in any way [to] trespass upon the prerogatives of the national courts’;200
and the
Court here pledged to ‘place as much reliance as possible upon the assessment
by the national court of the extent to which the questions submitted are essen-
tial’.201
The Court will therefore decline jurisdiction only very exceptionally:
200
Ibid., para. 18. 201
Ibid., para. 19.
202
Case C-617/10, Åklagaren v. Fransson EU:C:2013:105, para. 40. For an illustration, where
the Court found a preliminary question to be irrelevant, see e.g. Case C-618/10, Banco
Español de Crédito EU:C:2012: 349, esp. paras. 78–9.
203
Case 62/14, Gauweiler and others v. Deutscher Bundestag, EU:C:2015:400, para. 25. That
there may nevertheless be a robust review of the admissibility of the preliminary ruling,
see Case C-547/14, Philip Morris Brands and Others, EC:C:2016:325, paras. 29–53.
The presumption that questions referred by national courts for a preliminary ruling
are relevant may be rebutted only in exceptional cases, where it is quite obvious that
the interpretation of European Union law that is sought bears no relation to the
actual facts of the main action or its purpose, where the problem is hypothetical, or
where the Court does not have before it the factual or legal material necessary to give
a useful answer to the questions submitted to it.202
There exists thus a‘presumption of relevance’that the EU law questions asked
will be relevant for the national case at hand.203
c. Paragraph 3: The Obligation to Refer and ‘Acte clair’
While any national court or tribunal ‘may’ refer a question to the European
Court under paragraph 2,Article 267(3) TFEU imposes an obligation:
Where any such question is raised in a case pending before a court or tribunal of a
Member State against whose decisions there is no judicial remedy under national law,
that court or tribunal shall bring the matter before the Court.
Certain courts therefore ‘must’ refer a question to the European Court.These
courts are defined in Article 267(3) as courts ‘against whose decisions there is no
judicial remedy under national law’.
What will this formulation mean? Two theoretical options exist. Under an
‘institutional’ reading, the formulation refers to the highest judicial institution
in the country.This would restrict the obligation to refer preliminary questions
to a single court in a Member State – in the United Kingdom: the Supreme
Court. By contrast, a ‘procedural’ reading links the definition of the court of last
instance to the judicial procedure in the particular case.This broadens the obligation
to refer to every national court whose decision cannot be appealed in the
particular case.
Judicial Powers I 395
The Court of Justice has – from the very beginning – favoured the second
reading.204
The key concept in Article 267(3) is thereby the ‘appealability’ of a
judicial decision.What counts is the ability of the parties to appeal to a higher
court. (The fact that the merits of the appeal are subject to a prior declaration of
admissibility by a superior court will thereby not deprive the parties of that abil-
ity.)205
Where an appeal is thus procedurally possible, the obligation under Article
267(3) will not apply.
Apart from the question as to what are courts ‘against whose decisions there
is no judicial remedy under national law’, the wording of Article 267(3) appears
relatively clear.Yet, this picture is – misleadingly – deceptive. For the European
Court has judicially ‘amended’ the provision in two very significant ways.
The first ‘amendment’ relates to references on the validity of European law.
And despite the restrictive wording of paragraph 3,the European Court has here
insisted that all national courts – even courts that are not courts of last resort –
are under an obligation to refer when they are in doubt about the validity of a Union
act.206
This expansion of the scope of Article 267(3) follows from the structure of
the Union’s judicial federalism, which grants the exclusive power to invalidate
European law to the Court of Justice alone.207
By contrast, a second ‘amendment’ has limited the obligation to refer preliminary
questions.This limitation follows from constitutional common sense. For
to ask a question implies uncertainty as to the answer.And where the answer is
‘clear’, there may be no need to raise a question.Yet on its textual face,Article
267(3) treats national courts ‘as perpetual children’: they are forbidden from
interpreting European law – even if the answers are crystal clear.208
And in order
to counter this, the Union legal order has imported a French legal doctrine
under the name of acte clair.209
The doctrine simply means that where it is clear
how to act, a national court need not ask a preliminary question.
204
The procedural theory received support in Case 6/64, Costa v. ENEL [1964] ECR 585,
where the ECJ treated an Italian court of first instance as a court against whose decision
there was no judicial remedy.
205
Case C-99/00, Lyckeskog [2002] ECR I-4839, para. 16:‘Decisions of a national appellate
court which can be challenged by the parties before a supreme court are not decisions of
a court or tribunal of a Member State against whose decisions there is no judicial remedy
under national law within the meaning of Article [267 TFEU].The fact that examination
of the merits of such appeals is subject to a prior declaration of admissibility by the
Supreme Court does not have the effect of depriving the parties of a judicial remedy.’ For
a recent confirmation, see Case C-3/16, Aquino v. Belgium, EU:C:2017:209, paras. 35–6.
206
See Case C-344/04, The Queen on the application of International AirTransport Association et
al. v. Department forTransport [2006] ECR I-403, para. 30.
207
On this point, see Chapter 11, Introduction.
208
J.  C. Cohen, ‘The European Preliminary Reference and US Court Review of State
Court Judgments:A Study in Comparative Judicial Federalism’ (1996) American Journal of
Comparative Law 421 at 438.
209
There are different interpretations of the ‘hidden’ constitutional reasons behind the
European acte clair doctrine. Some commentators have seen it in purely negative terms:
Governmental Powers396
The doctrine of acte clair began its European career in Da Costa.210
In this case,
the Court held:
[T]he authority of an interpretation under Article [267] already given by the Court
may deprive the obligation of its purpose and thus empty it of its substance. Such is
the case especially when the question raised is materially identical with a question
which has already been the subject of a preliminary ruling in a similar case.211
The Court subsequently clarified that this also covered a second situation.
Where the European Court had already given a negative answer to a question
relating to the validity of a Union act, another national court need not raise the
same question again.212
But general guidelines on the constitutional scope of the acte clair doctrine
were only offered in CILFIT.213
The Court here widened the doctrine to situations
‘where previous decisions of the Court have already dealt with the point of
law in question, irrespective of the nature of the proceedings which led to those
decisions, even though the questions at issue are not strictly identical’.214
Yet
national courts would only be released from their obligation to refer questions
underArticle 267(3)TFEU,where certain conditions were fulfilled.In the words
of the Court:
the European Court finally became resigned to the fact that national supreme courts did
not honour their obligation to refer questions under Art. 267(3) TFEU, and the invention
of the acte clair doctrine ‘legalised’ a (previously) illegal national practice. A second
interpretation sees the doctrine in a positive light: the European Court rejected the idea
of considering national supreme courts as less reliable than lower national courts in interpreting
European law. The obligation to refer would thus only arise where there was
a real European law ‘question’. A third interpretation has seen the doctrine of acte clair
as part of a ‘give and take’ strategy, according to which the Court gave more power to
national courts so as to develop a doctrine of precedent. On the various readings, see H.
Rasmussen,‘The European Court’s acte clair Strategy in CILFIT’ (1984) 10 EL Rev. 242.
210
Cases 28–30/62, Da Costa.
211
Ibid., 38.
212
Case 66/80, International Chemical Corporation [1981] ECR 1191, paras. 12–13: ‘When
the Court is moved under Article [267] to declare an act of one of the institutions to be
void there are particularly imperative requirements concerning legal certainty in addition
to those concerning the uniform application of [European] law. It follows from the very
nature of such a declaration that a national court may not apply the act declared to be
void without once more creating serious uncertainty as to the [European] law applicable.
It follows therefrom that although a judgment of the Court given under Article [267]
of the Treaty declaring an act of an institution, in particular a Council or Commission
regulation, to be void is directly addressed only to the national court which brought the
matter before the Court, it is sufficient reason for any other national court to regard that
act as void for the purposes of a judgment which it has to give.’
213
Case 283/81, CILFIT and others v. Ministry of Health [1982] ECR 3415.
214
Ibid., para. 14.
Judicial Powers I 397
This is an extremely high threshold, which the Court linked to the fulfilment
of a number of very (!) restrictive conditions.216
These CILFIT conditions ‘were
designed to prevent national courts from abusing the doctrine in order to evade
their obligation to seek a preliminary ruling where they are disinclined to adhere
to the Court’s case-law’.217
For a very long time, however, not much was known about the CILFIT
conditions. In a recent judgment, the Court has helpfully added some clarity. In
Ferreira da Silva e Brito,218
the Court clarified that the existence of contradictory
decisions of lower national courts was ‘not a conclusive factor capable of triggering
the obligation set out in the third paragraph of Article 267TFEU’ because a
higher court may still hold a distinct interpretation that it believes to be beyond
reasonable doubt.219
While disagreement within one national legal order is thus not
a conclusive trigger, the Court of Justice nevertheless held that wherever there
exists ‘a great deal of uncertainty on the part of many national courts and tribunals’,
‘[t]hat uncertainty shows not only that there are difficulties of interpretation,but
[T]he correct application of [Union] law may be so obvious as to leave no scope for
any reasonable doubt as to the matter in which the question raised is to be resolved.
Before it comes to the conclusion that such is the case, the national court or tribunal
must be convinced that the matter is equally obvious to the courts of the other
Member States and to the Court of Justice. Only if those conditions are satisfied, may
the national court or tribunal refrain from submitting the question to the Court of
Justice and take upon itself the responsibility for resolving it. However, the existence
of such a possibility must be assessed on the basis of the characteristic features of
[European] law and the particular difficulties to which its interpretation gives rise.215
215
Ibid., paras. 16–17.
216
Ibid., paras. 18–20: ‘To begin with, it must be borne in mind that [Union] legislation
is drafted in several languages and that the different language versions are all equally
authentic.An interpretation of a provision of [European] law thus involves a comparison
of the different language versions.It must also be borne in mind,even where the different
language versions are entirely in accord with one another, that [European] law uses terminology
which is peculiar to it. Furthermore, it must be emphasised that legal concepts
do not necessarily have the same meaning in [European] law and in the law of the various
Member States. Finally, every provision of [European] law must be placed in its context
and interpreted in the light of the provisions of [European] law as a whole, regard being
had to the objectives thereof and to its state of evolution at the date on which the provision
in question is to be applied.’
217
K. Lenaerts et al., EU Procedural Law (Oxford University Press, 2014), 100.
218
Case C-160/14, Ferreira da Silva e Brito and others.
219
Ibid., paras. 41–2 (emphasis added). Similarly, in Joined Cases C-72/14 and C-197/14, X
and van Dijk, EU:C:2015:564, the Court held that the fact that a lower court had made
a reference to the ECJ did not in itself mean that the CILFIT conditions were fulfilled
because ‘it is for the national courts alone against whose decision there is no judicial
remedy under national law, to take upon themselves independently the responsibility for
determining whether the case before them involves an “acte clair”’ (ibid., para. 59).
Governmental Powers398
also that there is a risk of divergences in judicial decisions within the European
Union’.220
And, importantly, this was a question that the European Court itself
felt very happy to – centrally – decide.221
Far from indicating ‘a considerable
relaxation of the conditions of application of the acte clair exception’ and an
‘accrued decentralization in the interpretation of EU law’, this recent development
may indeed show the Court to police and restrict the CILFIT conditions
much more willingly.222
d. The Legal Nature of Preliminary Rulings
What is the nature of preliminary rulings from the European Court? Preliminary
references are not appeals.They are – principally – discretionary acts of a national
court asking for interpretative help from the European Court. The decision
to refer to the European Court of Justice thus lies entirely with the national
court – not the parties to the dispute.223
Once the European Court has given a
preliminary ruling,this ruling will be binding.But whom will it bind – the parties
to the national disputes or the national court(s)?
Preliminary rulings cannot bind the parties in the national dispute, since the
European Court will not ‘decide’ their case. It is therefore misleading to even
speak of a binding effect inter partes in the context of preliminary rulings.224
The
Court’s rulings are addressed to the national court requesting the reference; and
the Court has clarified that ‘that ruling is binding on the national court as to
the interpretation of the [Union] provisions and acts in question’.225
Yet, will
the binding effect of a preliminary ruling extend beyond the referring national
court? In other words, is a preliminary ruling equivalent to a ‘decision’ addressed
to a single court; or will the European Court’s interpretation be generally binding
on all national courts?The Court has long clarified that a preliminary ruling
220
C-160/14, Ferreira da Silva e Brito and others, para. 43.
221
Ibid., para. 44. For the same ‘centralised’ application of the CILFIT criteria, see Case
C-379/15, Association France Nature Environnement v. Premier ministre and others,
EU:C:2016:603, esp. paras. 51–3.
222
For the opposite conclusion, see A. Kornezov,‘The New Format of the acte clair Doctrine
and Its Consequences’ (2016) 53 CMLR 1317, esp. 1325 and 1341.
223
Case C-2/06, Kempter v. Hauptzollamt Hamburg-Jonas [2008] ECR I-411, para. 41: ‘the
system established by Article [267 TFEU] with a view to ensuring that [European] law
is interpreted uniformly in the Member States instituted direct cooperation between the
Court of Justice and the national courts by means of a procedure which is completely
independent of any initiative by the parties’.And para. 42:‘the system of references for a
preliminary ruling is based on a dialogue between one court and another, the initiation
of which depends entirely on the national court’s assessment as to whether a reference is
appropriate and necessary’.
224
Contra:A.Toth,‘The Authority of Judgments of the European Court of Justice: Binding
Force and Legal Effects’ (1984) 4YEL 1.
225
Case 52/76, Benedetti v. Munari [1977] ECR 163, para. 26:‘that ruling is binding on the
national court as to the interpretation of the [Union] provisions and acts in question’.
Judicial Powers I 399
is not a ‘decision’; indeed, it is not even seen as an (external) act of a Union
institution.226
What then is the nature of preliminary rulings? The question has been hotly
debated in the academic literature. And – again – we may contrast two views
competing with each other. According to the common law view, preliminary
rulings are legal precedents that generally bind all national courts. Judgments of
the European Court are binding erga omnes.227
This view typically links the rise
of the doctrine of judicial precedent with the evolution of the doctrine of acte
clair.228
It is thereby claimed that the Court of Justice transformed its position
vis-à-vis national courts from a horizontal and bilateral relationship to a vertical
and multilateral one.229
The problem with this – masterful yet mistaken – theory is that the European
Court subscribes to a second constitutional view: the civil law tradition.
Accordingly, its judgments do not create ‘new’ legal rules but only clarify ‘old’
ones. In the words of the Court:
226
Case 69/85 (Order), Wünsche Handelsgesellschaft v. Germany [1986] ECR 947, para. 16.
227
See A.Trabucchi,‘L’Effet “erga omnes” des décisions préjudicielles rendues par la cour de
justice des communautés européennes’ (1974) 10 RTDE 56.
228
Rasmussen,‘European Court’s acte clair Strategy’ (n. 209 above).
229
This view was popularised in P. Craig and G. de Búrca, EU Law:Text, Cases and Materials
(Oxford University Press, 2007), 461.
230
Case 61/79,Amministrazione delle finanze dello Stato v.Denkavit [1980] ECR 1205,para.16;
and somewhat more recently:Case C-453/00,Kühne & Heitz v.Productschap voor Pluimvee
en Eieren [2004] ECR I-837, para. 21.
231
Against this civilian background, the argument that the Treaty, by providing for the
automatic operation of the obligation to refer, ‘assumed that the Court’s dicta under
Article [267] were deprived of authority for any other court than the submitting one’
(Rasmussen, ‘European Court’s acte clair Strategy’ (n. 209 above) at 249), is flawed. And
starting from this false premise, Rasmussen (over)interprets CILFIT.
232
In this sense, seeToth,‘Authority of Judgments’ (n. 224 above), 60:‘in the cases under discussion
the Court itself has never meant to attribute, as is sometimes suggested, a general
binding force to interpretative preliminary rulings’.
The interpretation which, in the exercise of the jurisdiction conferred upon it by
Article [267 TFEU], the Court of Justice gives to a rule of [European] law clarifies and
defines where necessary the meaning and scope of that rule as it must be or ought to
have been understood and applied from the time of its coming into force.230
The Court of Justice has thus adopted the – (in)famous –‘declaration theory’.
Judgments only declare pre-existing positive law, and thus reach back in time
to when the positive law was adopted. The vertical and multilateral effects of
preliminary rulings are thus mediated through the positive law interpreted – and
not, as the common law view asserts, through a doctrine of precedent.231
In light of the ‘civilian’ judicial philosophy of the European Court, its judgments
are not generally binding.232
There is no vertical or multilateral effect
Governmental Powers400
of judicial decisions as ‘judgments of the European Courts are not sources but
authoritative evidences of [European] law’.‘[A]n interpretation given by the Court
becomes an integral part of the provision interpreted and cannot fail to affect
the legal position of all those who may derive rights and obligations from that
provision.’233
Are there constitutional problems with the Union’s civil law philosophy?
Indeed, there are. For the ‘declaratory’ effect of preliminary rulings often generates
‘retroactive’ effects.234
Indeed, in Kühne & Heitz,235
the Court held that a
(new) interpretation of European law must be applied‘even to legal relationships
which arose or were formed before the Court gave its ruling on the question on
interpretation’.236
The Court has, however, recognised that its civil law philosophy
must – occasionally – be tempered by the principles of legal certainty and
financial equity.237
It has therefore – exceptionally – limited the temporal effect
of a preliminary ruling to an effect ex nunc, that is: an effect from the time of the
ruling.238
However, at the same time, the Court has clarified that legal certainty
will not prevent the retrospective application of a (new) interpretation, where
the judgment of a court of last instance ‘was, in the light of a decision given
by the Court subsequent to it, based on a misinterpretation of [European] law
which was adopted without a question being referred to the Court for a preliminary
ruling under the third paragraph of Article [267]’.239
Conclusion
The Court of Justice of the European Union has never just been ‘the mouth of
the law’.The Court’s judicial powers are extensive – and the Court has extensively
used them.Yet while the Court’s judicial activism has been subject to
heavy criticism,240
the Court continues to be a ‘court’; and as a court its powers
are essentially ‘passive’ powers.This chapter looked at three judicial powers in
the context of the Union legal order: the power to annul European law, the
233
Ibid., 70 and 74.
234
On this point, see G. Bebr,‘Preliminary Rulings of the Court of Justice:Their Authority
and Temporal Effect’ (1981) 18 CML Rev. 475, esp. 491:‘The retroactive effect of a preliminary
interpretative ruling is, according to the Court, the general rule.’
235
Case C-453/00, Kühne & Heitz.
236
Ibid., para. 22.
237
For the former rationale, see Case C-2/06, Kempter; for the latter rationale, see Case
43/75, Defrenne v. Sabena [1976] ECR 455.
238
For an academic analysis here, see D. Düsterhaus, ‘Eppur Si Muove! The Past, Present,
and (Possible) Future of Temporal Limitations in the Preliminary Reference Procedure’
(2017) 36YEL 237.
239
Case C-2/06, Kempter, para. 39. For a critical analysis of this case, see A.Ward,‘Do unto
Others asYou Would Have Them Do untoYou:“Willy Kempter” and the Duty to Raise
EC Law in National Litigation’ (2008) 33 EL Rev. 739.
240
See H. Rasmussen, On Law and Policy in the European Court of Justice:A Comparative Study
in Judicial Policymaking (Nijhoff, 1986).
Judicial Powers I 401
power to remedy illegal acts of the Union, and the power to enforce European
law through adjudication, both directly in the European Court and indirectly
through the national courts.
The Union is based on the rule of law inasmuch as the European Court is
empowered to review the legality of European (secondary) law.The Union legal
order has thereby opted for a strong ‘rule of law’ version. It allows the Court
to review the formal and substantive legality of European law. One particularly
important aspect of the substantive review of all Union law will be discussed in
Chapter 12: judicial review in light of EU fundamental rights.
However, in the past, there existed severe procedural limitations on the right
of individual applicants to request judicial review proceedings.Under the Rome
Treaty, private parties were originally only entitled to challenge ‘decisions’ that
were of ‘direct and individual concern to them’.And while subsequent jurisprudence
broadened their standing to the review of any Union act, the Plaumann
formula restricted the right to judicial review to an exclusive set of private
applicants.The Lisbon Treaty has only liberalised this procedural restriction for
‘regulatory’ acts.
Section 2 looked at the remedial powers of the European Court, while sections
3 and 4 analysed the application of European law through adjudication.
With regard to the judicial adjudication of Union law, the Union has chosen
a dual enforcement mechanism. First, it allows for the central adjudication of
European law through actions directly brought before the Court of Justice of the
European Union.TheTreaties thereby distinguish between infringement actions
against the Member States,and proceedings against the Union for a failure to act.
However,second,the Union legal order also provides for the decentralised adjudication
of European law in the national courts. From a functional perspective,
national courts are thus – partly – European courts; and, in order to guarantee
a degree of uniformity in the interpretation of European law, the EU Treaties
provide for a ‘preliminary reference procedure’.This is not an appeal procedure,
but allows national courts to ask – if they want to – questions relating to the
interpretation of European law.This – voluntary – cooperative arrangement is
however replaced by a constitutional obligation for national courts of last resort.
The role of national courts in the exercise of the judicial function in the
Union legal order cannot be overestimated.Their powers and procedures in the
enforcement of Union law are the subject of the next chapter.
FURTHER READING
Books
A.Albors-Llorens, Private Parties in European Community Law: Challenging Community
Measures (Clarendon Press, 1996)
S.Andersen, The Enforcement of EU Law (Oxford University Press, 2012)
A.Arnull, The European Union and Its Court of Justice (Oxford University Press, 2006)
A. Biondi and M. Farley, The Right to Damages in European Law (Kluwer, 2009)
M. Broberg and N. Fenger, Preliminary References to the European Court of Justice
(Oxford University Press, 2014)
Governmental Powers402
K. Lenaerts, I. Maselis and K. Gutman, EU Procedural Law (Oxford University Press,
2014)
L. Prete, Infringement Proceedings in EU Law (Kluwer, 2016)
T.Tridimas, The General Principles of EU Law (Oxford University Press, 2007)
A.Ward, Judicial Review and the Rights of Private Parties in EU Law (Oxford University
Press, 2007)
Articles (and Chapters)
A. Albors-Llorens, ‘Remedies against the EU Institutions after Lisbon: An Era of
Opportunity’ (2012) 71 Cambridge Law Journal 507
A.Arnull,‘Private Applicants and the Action for Annulment since Codorniu’ (2001)
38 CML Rev. 8
S. Balthasar, ‘Locus standi Rules for Challenges to Regulatory Acts by Private
Applicants:The New Article 263 (4)TFEU’ (2010) 35 EL Rev. 542
J. Bast,‘Legal Instruments and Judicial Protection’, in A. von Bogdandy and J. Bast
(eds.), Principles of European Constitutional Law (Hart, 2009), 345
M. Broberg,‘Acte clair Revisited’ (2008) 45 CML Rev. 1383
K. Gutman,‘The Evolution of the Action for Damages against the European Union
and Its Place in the System of Judicial Protection’ (2011) 48 CML Rev. 695
L. Prete and B. Smulders,‘The Coming of Age of Infringement Proceedings’ (2010)
47 CML Rev. 9
H. Rasmussen,‘The European Court’s Acte clair Strategy in CILFIT’ (1984) 10 EL
Rev. 242
R. Schwensfeier,‘The TWD Principle Post-Lisbon’ (2012) 37 EL Rev. 156
T.Tridimas,‘Knocking on Heaven’s Door: Fragmentation, Efficiency and Defiance
in the Preliminary Reference Ruling Procedure’ (2003) 40 CML Rev. 9
J. Usher,‘Direct and Individual Concern:An Effective Remedy or a Conventional
Solution?’ (2003) 28 EL Rev. 575
M.Vogt,‘Indirect Judicial Protection in EC Law:The Case of the Plea of Illegality’
(2006) 31 EL Rev. 364
P.Wennerås,‘Sanctions against Member States under Article 260 TFEU: Alive, But
Not Kicking?’ (2012) 49 CML Rev. 145
Cases on the Website
Case 25/62, Plaumann; Cases 28–30/62, Da Costa; Cases 31 and 33/62, Lütticke;
Cases 90–1/63, Commission v. Luxembourg and Belgium; Case22/70, Commission
v. Council (ERTA);Case5/71,Schöppenstedt;Case 166/73,Rheinmuhlen;Case104/79
Foglia v.Novello (No.1);Case 66/80,International Chemical Corporation;Case 246/80,
Broekmeulen; Case 283/81, CILFIT; Case 13/83, Parliament v. Council (Common
Transport Policy); Case294/83, Les Verts; Case 314/85, Foto-Frost; Case 302/87,
Parliament v. Council (Comitology); Case C-309/89, Codorniu; Case C-188/92,
TWD; Case T-184/95, Dorsch Consult; Case C-352/98P, Bergaderm; Case C-50/00,
UPA; Case C-453/00, Kühne & Heitz; Case C-402/05P, Kadi; Case C-120/06P,
FIAMM; Case T-18/10, Inuit I; Case T-526/10, Inuit II; Case C-583/11P, Inuit I-P;
Case C-160/14, da Silva e Brito
11
Judicial Powers II
(Decentralised) National Procedures
Introduction
National courts are the principal judicial enforcers of European law.‘Ever since
Van Gend en Loos the Court has maintained that it is the task of the national
courts to protect the rights of individuals under [Union] law and to give full
effect to [Union] law provisions.’1
Indeed, whenever European law is directly
effective, national courts must apply it; and wherever a Union norm comes
into conflict with national law, each national court must disapply the latter.2
Contents
Introduction 403
1. The Equivalence Principle 408
a. Non-discrimination: Extending National Remedies 408
b. ‘Similar’ Actions: The Equivalence Test 409
2. The Effectiveness Principle 411
a. The Historical Evolution of the Effectiveness Standard 412
aa. First Period: Judicial Restraint 412
bb. Second Period: Judicial Intervention 413
cc. Third Period: Judicial Balance 416
b. Procedural Limits to the Invocability of European Law 418
3. The Liability Principle 421
a. State Liability: The Francovich Doctrine 421
aa. The Three Conditions for State Liability 424
bb. State Liability for Judicial Breaches of European Law 427
b. Private Liability: The Courage Doctrine 430
4. European Harmonisation: Judicial Cooperation 433
a. Cooperation and Mutual Recognition in Civil Matters 434
aa. Dividing Competences between National Courts 435
bb. Mutual Recognition of National Judgments 439
b. Cooperation and Mutual Recognition in Criminal Matters 440
Conclusion 441
Further Reading 443
1
S. Prechal,‘National Courts in EU Judicial Structures’ (2006) 25 YEL 429.
2
On the principles of direct effect and supremacy, see Chapters 3 and 4.
Governmental Powers404
The Union legal order thereby insists that nothing within the national judicial
system must prevent national courts from exercising their functions as ‘guardians’
of the European judicial order.3
In Simmenthal,4
the Court thus held that
each national court must be able to disapply national law – even where the
national judicial system traditionally reserves that power to a central constitutional
court:
3
Opinion 1/09 (Draft Agreement on the Creation of European and Community Patent
Court) [2011] ECR I-1137, para. 66.
4
Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629.
5
Ibid., paras. 21–2. For a recent confirmation, see e.g. Joined Cases C-188–9/10, Melki &
Abdeli [2010] ECR I-5667, esp. para. 44.
6
Case 314/85, Foto-Frost v. Hauptzollamt Lübeck-Ost [1987] ECR 4199, para. 17. See also
Case C-461/03, Schul Douane-expediteur [2005] ECR I-10513. Under European law,
national courts will thereby be entitled, under strict conditions, to grant interim relief (see
Case C-466/93, Atlanta Fruchthandelsgesellschaft mbH and others v. Bundesamt für Ernährung
und Forstwirtschaft [1995] ECR I-3799).
[E]very national court must, in a case within its jurisdiction, apply [Union] 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 [Union] rule. Accordingly any provision of a national legal
system and any legislative, administrative or judicial practice which might impair the
effectiveness of [European] law by withholding from the national court having jurisdiction
to apply such law the power to do everything necessary at the moment of its
application to set aside national legislative provisions which might prevent [Union]
rules from having full force and effect are incompatible with those requirements
which are the very essence of [Union] law.5
Functionally, the direct effect (and supremacy) of European law transform
every single national court into a ‘European’ court. This decentralised system
differs from the judicial system in the United States in which the application of
federal law is principally left to ‘federal’ courts. Federal courts here apply federal
law, while state courts apply state law.The European system, by contrast, is
based on a philosophy of cooperative federalism: all national courts are entitled
and obliged to apply European law to disputes before them. National courts
are however not full European courts. Although they must interpret and apply
European law, they are not empowered to annul a Union act.Within the Union
legal order, this is an exclusive competence of the European Court:
Since Article [263] gives the Court exclusive jurisdiction to declare void an act of a
[Union] institution, the coherence of the system requires that where the validity of a
[Union] act is challenged before a national court the power to declare that act invalid
must also be reserved to the Court of Justice.6
Judicial Powers II 405
In opting for the decentralised judicial enforcement via state courts, the EU
judicial system comes close to German judicial federalism; yet unlike the latter,
state courts are not hierarchically subordinated.We saw in the previous chapter
that there is no formal appeal procedure from the national to the European
Courts,as the only procedural nexus here is the preliminary reference procedure.
The relationship between national courts and the European Court is thus based
on their voluntary cooperation. National courts are consequently only functionally
– but not institutionally – Union courts (see Figure 11.1).
Has the Union therefore had to take State courts as it finds them? The
Union legal order has indeed traditionally recognised the procedural autonomy
of the judicial authorities of the Member States in the enforcement of
European law:
7
Case 39/70, Norddeutsches Vieh- und Fleischkontor GmbH v. Hauptzollamt Hamburg-St Annen
[1971] ECR 49, para. 4.
8
For a criticism of the notion, see C. N. Kakouris,‘Do the Member States Possess Judicial
Procedural “Autonomy”?’ (1997) 34 CML Rev. 1389 (arguing that the Court has never
referred to the principle in its case law). However, the Court subsequently, and now regularly,
recognised the principle in its case law; see Case C-201/02, The Queen v. Secretary
of State forTransport, ex p.Wells [2004] ECR I-723, para. 67 (emphasis added):‘The detailed
procedural rules applicable are a matter for the domestic legal order of each Member State,
under the principle of procedural autonomy of the Member States’; and Joined Cases C-392/04
and C-422/04, i-21 Germany & Arcor v. Germany [2006] ECR I-8559, para. 57:‘principle of
the procedural autonomy of the Member States’.
9
K. Lenaerts et al., EU Procedural Law (Oxford University Press, 2014), 107.
Figure 11.1 Judicial Federalism in Comparative Perspective
Federal Courts
American Federalism European Federalism
State Courts
European
Courts
German Federalism
State Courts
Federal Courts
Where national authorities are responsible for implementing [European law] it must
be recognised that in principle this implementation takes place with due respect for
the forms and procedures of national law.7
This formulation has become known as the principle of ‘national procedural
autonomy’.8
It essentially means that in the judicial enforcement of European
law, the Union ‘piggybacks’ on the national judicial systems.9
The danger of
such ‘piggybacking’ is however that there may be situations in which there is a
European right but no national remedy to enforce that right. But rights without
remedies are like ‘pie in the sky’: a metaphysical meal. Each right should have its
Governmental Powers406
remedy(ies);10
and for that reason, the autonomy of national judicial procedures
was never absolute. National procedural powers are thus not exclusive powers
of the Member States;11
and the Union has expressly recognised that it can harmonise
national procedural laws where ‘they are likely to distort or harm the
functioning of the common market’.12
But did this mean that, in the absence of positive harmonisation, the Member
States were absolutely free to determine how individuals could enforce their
European rights in national courts?The Court has answered this question negatively.The
core duty governing the decentralised enforcement of European law
is thereby rooted in Article 4(3) TEU: the duty of ‘sincere cooperation’.13
This
general duty is today complemented by Article 19(1), which states: ‘Member
States shall provide remedies sufficient to ensure effective legal protection in the
fields covered by Union law.’
What does this mean? And to what extent does it limit the procedural autonomy
of the Member States? This chapter explores these questions.We shall discuss
two specific constitutional principles that the Court has derived from the
general duty of sincere cooperation:the principle of equivalence and the principle
of effectiveness.The classic expression of both can be found in Rewe:
10
Remedies might be said to fall into two broad categories. Ex ante remedies are to prevent
the violation of a right (interim relief,injunctions),while ex post remedies are used to‘remedy’a
violation that has already occurred (damages liability).On the many (unclear) meanings
of ‘remedy’, see P. Birks,‘Rights,Wrongs, and Remedies’ (2000) 20 Oxford Journal of
Legal Studies 1 at 9ff.
11
Contra: D. Simon, Le Système juridique communautaire (Presses Universitaires de France,
2001), 156:‘les Etats membres ont une competence exclusive pour determiner les organes
qui seront chargés d’exécuter le droit communautaire’.
12
Case 33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das
Saarland [1976] ECR 1989, para. 5:‘Where necessary,Articles [114 to 116 and 352TFEU]
enable appropriate measures to be taken to remedy differences between the provisions laid
down by law, regulations or administrative action in Member States if they are likely to
distort or harm the functioning of the common market. In the absence of such measures
of harmonisation the right conferred by [European] law must be exercised before the
national courts in accordance with the conditions laid down by national rules.’
13
Art. 4(3) TEU states:‘Pursuant to the principle of sincere cooperation, the Union and the
Member States shall, in full mutual respect, assist each other in carrying out tasks which
flow from the Treaties.The Member States shall take any appropriate measure, general or
particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting
from the acts of the institutions of the Union. The Member States shall facilitate the
achievement of the Union’s tasks and refrain from any measure which could jeopardise the
attainment of the Union’s objectives.’
[I]n the absence of [European] rules on this subject, it is for the domestic legal system
of each Member State to designate the courts having jurisdiction and to determine
the procedural conditions governing actions at law intended to ensure the protection
of the rights which citizens have derived from the direct effect of [European] law, it
being understood that such conditions cannot be less favourable than those relating
to similar actions of a domestic nature … In the absence of such measures of
Judicial Powers II 407
Even in the absence of European harmonisation, the procedural autonomy of
the Member States was thus relative. National procedural rules could not make
the enforcement of European rights less favourable than the enforcement of
similar national rights. This prohibition of procedural discrimination was the
principle of equivalence. But national procedural rules – even if not discriminatory
– ought also not to make the enforcement of European rights ‘impossible
in practice’.This would become known as the principle of effectiveness. Both
principles have led to a significant judicial harmonisation of national procedural
laws,15
and this chapter analyses their evolution in sections 1 and 2 below.
Section 3 turns to a third – famous – incursion into the procedural autonomy
of national courts: the liability principle.While the previous two principles
relied on the existence of national remedies for the enforcement of European law,
this principle establishes a European remedy for proceedings in national courts.
An individual can here, under certain conditions, claim compensatory damages
resulting from a breach of European law. Importantly, the remedial competence
of national courts is confined to national wrongs.They cannot give judgments on
the non-contractual liability of the European Union. For the latter power is –
like the power to annul Union law – an exclusive power of the Court of Justice
of the European Union.16
Having analysed the three major constitutional principles governing the
decentralised enforcement of European law ‘in the absence of harmonisation’,
section 4 finally explores what happens in areas in which the Union has harmonised
the remedial or jurisdictional competences of national courts. The
most significant harmonisation here relates to the jurisdictional competences of
14
Case 33/76, Rewe, para. 5. For the modern version, see Case C-312/93, Peterbroeck,Van
Campenhout & Cie v. Belgian State [1995] ECR I-4599; Case C-61/14, Orizzonte Salute –
Studio Infermieristico Associato, EU:C:2015:655, para. 46.
15
The Court expressly refers to both principles:see Joined Cases C-392/04 and C-422/04 i-
21 Germany & Arcor v. Germany, para. 57:‘[A]ccording to settled case-law, in the absence of
relevant [European] rules, the detailed procedural rules designed to ensure the protection
of the rights which individuals acquire under [European] law are a matter for the domestic
legal order of each Member State, under the principle of the procedural autonomy of the
Member States, provided that they are not less favourable than those governing similar
domestic situations (principle of equivalence) and that they do not render impossible in
practice or excessively difficult the exercise of rights conferred by the [Union] legal order
(principle of effectiveness).’
16
See Joined Cases 106–20/87, Asteris and others [1988] ECR 5515, para. 15:‘[T]he Court
has exclusive jurisdiction pursuant to Article [268] of the [FEU]Treaty to hear actions for
compensation brought against the [Union] under the second paragraph of Article [340] of
the [FEU] Treaty.’
harmonisation the right conferred by [European] law must [thus] be exercised before
the national courts in accordance with the conditions laid down by national rules. The
position would be different only if the [national rules] made it impossible in practice
to exercise the rights which the national courts are obliged to protect.14
Governmental Powers408
national courts.This has allowed the Union to generally give national judgments
transnational effects within the Union legal order. When, for example, will a
judgment issued by a French or German court bind the judiciary in the United
Kingdom? The most important Union harmonisation here relates to civil law
but similar moves have been made in the context of criminal law.
1. The Equivalence Principle
The idea behind the principle of equivalence is straightforward: national procedures
and remedies for the enforcement of European rights ‘cannot be less
favourable than those relating to similar actions of a domestic nature’.17
When
applying European law,national courts must act as if they were applying national
law. National procedures and remedies must not discriminate between national
and European rights.The equivalence principle simply demands that similar situations
are treated similarly. It will consequently not affect the substance of
national remedies. It only requires the formal extension of those remedies to
‘similar’or‘equivalent’actions under European law.And,as such,the principle of
equivalence is not too intrusive in the procedural autonomy of national courts.18
a. Non-discrimination: Extending National Remedies
A good example of the non-discrimination logic behind the equivalence principle
can be seen in i-21 Germany & Arcor v. Germany.19
The two plaintiffs were
telecommunication companies that had paid licence fees to Germany. The
17
Case 33/76, Rewe, para. 5.
18
M. Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and
Differentiation (Hart, 2004), 26: ‘Principles such as non-discrimination and equivalence
implicitly assume that the remedies and procedural rules already provided under the
domestic judicial orders are sufficient in scope and character to safeguard the exercise of
the citizen’s legal rights.’
19
Joined Cases C-392/04 and C-422/04, i-21 Germany & Arcor v. Germany.
Figure 11.2 Limits on National Procedural Autonomy
National
Procedural Autonomy
Liability
Equivalence
Harmonisation
Effectiveness
Judicial Powers II 409
national fees had been calculated on the anticipated administrative costs of the
respective national authority over a period of 30 years and were charged in
advance. The companies successfully challenged the national law determining
the assessment method before the Federal Administrative Court,which declared
it to violate German constitutional law. The plaintiff companies then sought
repayment of the fees they had already paid. However, the national court dismissed
this second action on the grounds that the actual administrative decision
had become final under national law. For under the German Administrative
Procedure Act, a final administrative decision could only be challenged where
the decision was ‘downright intolerable’. For national law, this was not the case.
But wondering whether it was required to apply a lower threshold for actions
involving European law, the administrative court referred this question to the
European Court.
Analysing the equivalence principle within this context, the European Court
here held:
20
Ibid., paras. 62–3, 69. 21
Ibid., paras. 70–2.
[I]n relation to the principle of equivalence, this requires that all the rules applicable to
appeals, including the prescribed timelimits, apply without distinction to appeals on
the ground of infringement of [Union] law and to appeals on the ground of disregard
of national law. It follows that, if the national rules applicable to appeals impose an
obligation to withdraw an administrative act that is unlawful under domestic law,
even though that act has become final, where to uphold that act would be ‘downright
intolerable’, the same obligation to withdraw must exist under equivalent conditions
in the case of an administrative act … Where, pursuant to rules of national
law, the authorities are required to withdraw an administrative decision which has
become final if that decision is manifestly incompatible with domestic law, that same
obligation must exist if the decision is manifestly incompatible with [Union] law.20
In the present case, the question whether the national decision was ‘downright
intolerable’ or ‘manifestly incompatible’ with European law depended
on the degree of clarity of the Union law at issue, and was an interpretative
prerogative of the national court.21
The European Court thus accepted the
high national threshold for judicial challenges of final administrative acts, and
demanded that it be applied, without discrimination, to European actions in
national courts.
b. ‘Similar’ Actions: The Equivalence Test
The logic of non-discrimination requires that similar actions be treated similarly.
But what are ‘equivalent’ or ‘similar’ actions? The devil always lies in the detail,
and much case law on the equivalence principle has concentrated on this devilish
question.
Governmental Powers410
In Edis,22
a company had been required to pay a registration charge.Believing
the charge to be contrary to European law, the plaintiff applied for a refund that
was rejected by the Italian courts on the grounds that the limitation period for
such refunds had expired. However, Italian law recognised various limitation
periods – depending on whether the refund was due to be paid by public or
private parties. The limitation period for public authorities was shorter than
that for private parties.And this posed the following question: was the national
court entitled to simply extend the national public refund procedure to charges
in breach of European law; or was it required to apply the more generous private
refund procedure? The Court answered as follows:
22
Case C-231/96, Edilizia Industriale Siderurgica Srl (Edis) v. Ministero delle Finanze [1998]
ECR I-4951.
23
Ibid., paras. 36–7 (emphasis added).
24
For a recent confirmation of this point, see Case C-61/14, Orizzonte Salute – Studio
Infermieristico Associato, para. 67:‘[T]he principle of equivalence requires that actions based
on an infringement of national law and similar actions based on an infringement of EU
law be treated equally and not that there be equal treatment of national procedural rules
applicable to proceedings of a different nature such as civil proceedings, on the one hand,
and administrative proceedings, on the other, or applicable to proceedings falling within
two different branches of law.’
25
Case C-326/96, Levez v. Jennings (Harlow Pools) Ltd [1998] ECR I-7835.
Observance of the principle of equivalence implies, for its part, that the procedural
rule at issue applies without distinction to actions alleging infringements of [Union]
law and to those alleging infringements of national law, with respect to the same
kind of charges or dues. That principle cannot, however, be interpreted as obliging a
Member State to extend its most favourable rules governing recovery under national
law to all actions for repayment of charges or dues levied in breach of [European]
law. Thus, [European] law does not preclude the legislation of a Member State from
laying down, alongside a limitation period applicable under the ordinary law to
actions between private individuals for the recovery of sums paid but not due, special
detailed rules, which are less favourable, governing claims and legal proceedings to
challenge the imposition of charges and other levies. The position would be different
only if those detailed rules applied solely to actions based on [European] law for the
repayment of such charges or levies.23
In the present case,the‘equivalent’action was thus to be based on the national
remedies that existed for refunds from public bodies. The existence of a more
favourable limitation period for refunds from private parties was irrelevant, since
the equivalence principle only required treating like actions alike.And the ‘like’
action in this case was the refund procedure applicable to a public body. The
national procedural rules thus did not violate the principle of equivalence.24
But matters might not be so straightforward. In Levez,25
the Employment
AppealTribunal in London had asked the Court of Justice about the compatibility
Judicial Powers II 411
of section 2(5) of the 1970 Equal Pay Act with the equivalence principle.The
national law provided that,in proceedings brought in respect of a failure to comply
with the equal pay principle, women were not entitled to arrears of remuneration
or damages of more than two years.The provision applied irrespective
of whether a plaintiff enforced her national or European right to equal pay. Did
this not mean that the equivalence principle was respected?
The European Court did not think so,as it questioned the underlying comparative
base. As the national legislation was designed to implement the European
right to equal pay, the Court held that the national law ‘cannot therefore provide
an appropriate ground of comparison against which to measure compliance with
the principle of equivalence’.26
Remedies for equal pay rights needed to be compared
with national remedies for‘claims similar to those based on theAct’,such as
remedies for breach of a contract of employment or discrimination on grounds of
race.27
The equivalence principle indeed demanded the application of the more
generous national remedies available under these more general national actions.
In conclusion, the equivalence principle requires national courts to ask,
‘whether the actions concerned are similar as regards their purpose, cause of
action and essential characteristics’.28
This teleological comparability test might
require the courts to look beyond the national procedural regime for a specific
national or European right.
2. The Effectiveness Principle
From the very beginning, the European Court recognised the heightened tension
between the (relative) procedural autonomy of the Member States and the
principle of effectiveness. Although the equivalence principle simply required
the formal extension of the scope of national remedies to equivalent European
rights, the effectiveness principle appeared to ask national legal systems to provide
for a substantive minimum content that would guarantee the enforcement of
European rights in national courts.Thus, even where the equivalence principle
would be of no assistance because no similar national remedy existed, the effectiveness
principle could still require the strengthening of national remedies.
The power of the effectiveness principle to interfere with the principle of
national procedural autonomy was therefore – from the start – much greater.
Yet the European Court began to develop the principle from a minimal standard.
National remedies would solely be found inefficient, where they ‘made it
impossible in practice to exercise the rights which the national courts are obliged
to protect’.29
This effectiveness standard has developed with time, and in various
directions. For the sake of convenience, three historic standards may be
26
Ibid., para. 48. 27
Ibid., para. 49.
28
Case C-78/98, Preston et al. v. Wolverhampton Healthcare NHS Trust and others [2000] ECR
I-3201, para. 57:‘the national court must consider whether the actions concerned are similar
as regards their purpose, cause of action and essential characteristics’.
29
Case 33/76, Rewe, para. 5.
Governmental Powers412
distinguished.In addition to the minimum standard of practical impossibility,the
Court has referred to the medium standard of an ‘adequate’ remedy,30
and to the
maximum standard guaranteeing the ‘full effectiveness’ of European law.31
When
and where do these three different standards apply? The Court’s jurisprudence
on this question has been disastrously unclear.The best way to analyse the cases is
to identify general historical periods in addition to a variety of specific thematic
lines.32
This section indeed cannot do justice to the subtlety – or chaos – within
this area of European law.We shall confine ourselves to outlining the three broad
temporal periods in the general development of the effectiveness principle, and
subsequently look inside one specific thematic line within the case law.
a. The Historical Evolution of the Effectiveness Standard
The academic literature on the effectiveness principle typically distinguishes
between three – broadly defined – periods of evolution.A first period of restraint
is replaced by a period of intervention, which is in turn replaced by a period of
balance.33
The three standards and their (inverse) relationship to the principle of
national procedural autonomy can be seen in Figure 11.3.
aa. First Period: Judicial Restraint
In a first period,the European Court showed much restraint and respect towards
the procedural autonomy of the Member States.The Court pursued a policy of
judicial minimalism.34
The standard for an ‘effective remedy’ was low and simply
30
Case 14/83, Von Colson, para. 23.
31
Case C-213/89, The Queen v. Secretary of State for Transport, ex p. Factortame Ltd and others
[1990] ECR I-2433, para. 21.
32
For illustrations of this – brilliant and necessary – approach,see Dougan,National Remedies,
chs. 5–6; (n. 18 above);T.Tridimas, The General Principles of EU Law (Oxford University
Press, 2006), ch. 9.
33
A.Arnull, The European Union and Its Court of Justice (Oxford University Press, 2006), 268;
Dougan,National Remedies (n.18 above),227;Tridimas,General Principles (n.32 above),420ff.
34
A.Ward, Judicial Review and the Rights of Private Parties in EC Law (Oxford University Press,
2007), 87.
Figure 11.3 Standards of Effectiveness
Effectiveness
Procedural Autonomy
Medium
Standard
Maximum
Standard
Minimum
Standard
Judicial Powers II 413
required that national judicial procedures must not make the enforcement of
European rights (virtually) impossible.
This first period is exemplified by Rewe.35
In that case,the plaintiff had applied
for a refund of monies that had been charged in contravention of European law.
The defendant accepted the illegality of the charges under European law, but
counterclaimed that the limitation period for a refund, which existed under
national law, had expired.The Court accepted that the existence of a national
limitation period did not make the enforcement of European rights as such
impossible and found for the defendant.The judgment was confirmed, in nearly
identical terms, on the same day by a second case.36
The Court’s judicial minimalism
was thereby premised on the hope of future legislative harmonisation
by the Union.37
And, with the latter not forthcoming,38
the Court moved into a
second phase in the evolution of the principle of effectiveness.
bb. Second Period: Judicial Intervention
In this second period,the Court developed a much more demanding standard of
‘effectiveness’. In Von Colson,39
two female job applicants for a warden position
in an all-male prison had been rejected.The State prison service had indisputably
discriminated against them on the grounds that they were women.Their
European right to equal treatment had thus been violated,and the question arose
how this violation could be remedied under national law. The remedy under
German law exclusively allowed for damages, and these damages were furthermore
restricted to the plaintiffs’ travel expenses.Was this an effective remedy for
the enforcement of their European rights? Or would European law require ‘the
employer in question to conclude a contract of employment with the candidate
who was discriminated’ against?40
The Court rejected this specific remedy.41
For the enforcement of European law
would ‘not require any specific form of sanction for unlawful discrimination’.42
35
Case 33/76, Rewe.
36
Case 45/76, Comet BV v. Produktschap voor Siergewassen.
37
Arnull, European Union (n. 33 above), 276 – referring to Case 130/79, Express Dairy
Foods Limited v. Intervention Board for Agricultural Produce [1980] ECR 1887, para. 12: ‘In
the regrettable absence of [Union] provisions harmonising procedure and time-limits the
Court finds this situation entails differences in treatment on a [European] scale. It is not
for the Court to issue general rules of substance or procedural provisions which only the
competent institutions may adopt.’
38
For an exception to the rule, see Art. 6 of Directive 76/207 on the implementation of the
principle of equal treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions [1976] OJ L 39/40.The provision
stated:‘Member States shall introduce into their national legal systems such measures as are
necessary to enable all persons who consider themselves wronged by failure to apply to
them the principle of equal treatment within the meaning of Articles 3, 4 and 5 to pursue
their claims by judicial process after possible recourse to other competent authorities.’
39
Case 14/83, Von Colson.
40
This was the first (preliminary) question asked by the German labour law court (ibid.,para.
6).
41
Ibid., para. 19. 42
Ibid., para. 23.
Governmental Powers414
The Court nonetheless clarified that the effectiveness principle required that the
national remedy ‘be such as to guarantee real and effective judicial protection’.43
The remedy would need to have ‘a real deterrent effect on the employer’, and in
the context of a compensation claim this meant that the latter‘must in any event
be adequate in relation to the damage sustained’.44
Unsurprisingly, the German
procedural rule that limited the compensation claim so dramatically did not
satisfy this standard of effectiveness.45
Instead of a minimum standard, the Court here started to move to a standard
that aspired towards the full effectiveness of European law. In Dekker,46
the Court
thus outlawed national procedural restrictions that‘weakened considerably’47
the
effectiveness of the European right to equal treatment; and in Marshall II,48
it
repeated its demand that where financial compensation was chosen to remedy a
violation of European law, the compensatory damages ‘must be adequate, in that
it must enable the loss and damage actually sustained as a result of the discriminatory
dismissal to be made good in full’.49
The most famous intervention in the procedural autonomy of a Member
State is however reserved to another English case: Factortame.50
The facts of the
case were as follows:the appellant company was incorporated under English law,
but most of its shareholders were Spanish nationals. It had registered fishing vessels
under the 1894 Merchant Shipping Act – a practice that allowed its Spanish
shareholders to benefit from the fishing quota allocated to Great Britain under
the Union’s common fishing policy. This practice of ‘quota hopping’ was targeted
by the 1988 Merchant Shipping Act.This Act aimed at stopping Britain’s
quota being‘plundered’by‘vessels flying the British flag but lacking any genuine
link with the United Kingdom’.51
The 1988 Act consequently limited the reregistration
of all vessels to vessels that were ‘British owned’ and controlled from
within the United Kingdom. But this nationality requirement violated the nondiscrimination
principle on which the European internal market is founded,and
Factortame challenged the compatibility of the 1988 Act with European law.
In order to protect its European rights in the meantime, it applied for interim
relief, since it found that it would become insolvent if the national legislation
were immediately applied.
The case went to the (then) House of Lords; and the House of Lords did
find that the substantive conditions for granting interim relief were in place but
famously held that:
43
Ibid. 44
Ibid. 45
Ibid., para. 24.
46
Case C-177/88,Dekker v.StichtingVormingscentrum voor JongVolwassenen (VJV-Centrum) Plus
[1990] ECR I-3941.
47
Ibid., para. 24.
48
Case C-271/91, Marshall v. Southampton and South-West Hampshire Area Health Authority
[1993] ECR I-4367.
49
Ibid., para. 26 (emphasis added).
50
Case C-213/89, The Queen v. Secretary of State for Transport, ex p. Factortame Ltd and others
[1990] ECR I-2433.
51
Ibid., para. 4.
Judicial Powers II 415
Unsure whether this common law rule itself violated the effectiveness principle
under European law, the House of Lords referred the case as a preliminary
reference to Luxembourg.The European Court answered as follows:
52
Ibid., para. 13.
53
Ibid., paras. 20–1 (emphasis added).
54
A. G.Toth,‘Case Commentary’ (1990) 27 CML Rev. 573 at 586:‘It follows that the judgment
does not purport to lay down substantive conditions for the grant of interim protection,
nor to define the measures that may be ordered. Still less does it require the national
courts to devise interim relief where none exists.What it requires is that national courts
should make use of any interim measure that is normally available under national law, in
order to protect rights claimed under [European] law.’
55
This section will not discuss the (in)famous Emmott judgment (see Case C-208/90,Emmott
v. Minister for Social Welfare and Attorney General [1991] ECR I-4269), as the ruling should
best be confined to the special context dealing with the nature of directives (ibid., para. 17:
‘Whilst the laying down of reasonable time-limits which,if unobserved,bar proceedings,in
principle satisfies the two conditions mentioned above [i.e. the equivalence and effectiveness
principles], account must nevertheless be taken of the particular nature of directives’).
Moreover, the judgment was particularly motivated by a desire for substantive justice that
clouded the judgment’s formal legal value.The judgment’s peculiar and special character
[U]nder national law, the English courts had no power to grant interim relief in a case
such as the one before it … [as] the grant of such relief was precluded by the old
common-law rule that an interim injunction may not be granted against the Crown,
that is to say against the government, in conjunction with the presumption that an
Act of Parliament is in conformity with [European] law until such time as a decision
on its compatibility with that law has been given.52
[A]ny provision of a national legal system and any legislative, administrative or judicial
practice which might impair the effectiveness of [European] law by withholding from
the national court having jurisdiction to apply such law the power to do everything
necessary at the moment of its application to set aside national legislative provisions
which might prevent, even temporarily, [European] rules from having full force
and effect are incompatible with those requirements, which are the very essence of
[European] law. It must be added that the full effectiveness of [European] law would
be just as much impaired if a rule of national law could prevent a court seised of a
dispute governed by [European] law from granting interim relief in order to ensure
the full effectiveness of the judgment to be given on the existence of the rights
claimed under [European] law. It follows that a court which in those circumstances
would grant interim relief, if it were not for a rule of national law, is obliged to set
aside that rule.53
While short of creating a new remedy,54
this came very close to demanding
a maximum standard of effectiveness.Yet the Court soon withdrew from this
highly interventionist stance and thereby entered into a third period in the evolution
of the effectiveness principle.55
Governmental Powers416
cc. Third Period: Judicial Balance
In this third period, the Court tried and – still – tries to find a balance between
the minimum and the maximum standard of effectiveness.56
The retreat from the
second period of high intervention can be seen in Steenhorst-Neerings,57
where
the Court developed a distinction between national procedural rules whose
effect was to totally preclude individuals from enforcing European rights and
those national rules that merely restrict their remedies.58
In Preston,59
the Court had again to deal with the 1970 Equal Pay Act whose
s. 2(4) barred any claim that was not brought within a period of six months
following cessation of employment. And, instead of concentrating on the ‘full
effectiveness’ or ‘adequacy’ of the national remedy, the Court stated that ‘[s]uch
a limitation period does not render impossible or excessively difficult the exercise
of rights conferred by the [European] legal order and is not therefore liable to
strike at the very essence of those rights’.60
The Court here had recourse to a –
stronger – alternative to the minimal impossibility standard: national procedures
that would make the exercise of European rights ‘excessively difficult’ would fall
foul of the principle of effectiveness.61
This medium standard appeared to lie in
between the minimum and the maximum standard.
When would this medium standard of effectiveness be violated? Instead of
providing hard and fast rules, the Court has come to prefer a contextual test
spelled out for the first time in Peterbroeck.62
In order to discover whether a
national procedural rule makes the enforcement of European rights ‘excessively
difficult’, the Court analyses each case ‘by reference to the role of that provision
in the procedure, its progress and its special features, viewed as a whole, before
was indeed quickly realised by the Court (see Case C-410/92, Johnson v. Chief Adjudication
Officer [1994] ECR I-5483, para. 26), which has, ever since, constructed it restrictively.
On the – almost immediate – demise of Emmott, see M. Hoskins, ‘Tilting the Balance:
Supremacy and National Procedural Rules’ (1996) 21 EL Rev. 365.
56
F. G. Jacobs,‘Enforcing Community Rights and Obligations in National Courts: Striking
the Balance’,in A.Biondi and J.Lonbay (eds.),Remedies for Breach of EC Law (Wiley,1996).
See also Dougan, National Remedies (n. 18 above), 29: ‘There has been a definite retreat
back towards the orthodox presumption of national autonomy in the provision of judicial
protection. But the contemporary principle of effectiveness surely remains more intrusive
than the case law of the 1970s and early 1980s.’
57
Case C-338/91, Steenhorst-Neerings v. Bestuur van de Bedrijfsvereniging voor Detailhandel,
Ambachten en Huisvrouwen [1993] ECR I-5475.
58
On the distinction, see Ward, Judicial Review (n. 34 above), 131.The distinction was elaborated
in Case C-31/90, Johnson v. Chief Adjudication Officer [1991] ECR I-3723.
59
Case C-78/98, Preston et al. v. Wolverhampton Healthcare NHS Trust and others [2000] ECR
I-3201.
60
Ibid., para. 34 (emphasis added).
61
For a recent confirmation of this‘excessively difficult’standard,see Case C-61/14,Orizzonte
Salute – Studio Infermieristico Associato, para. 46; Case C-377/14, Radlinger & Radlingerová v.
Finway, EU:C:2016:283, para. 50.
62
Case C-312/93, Peterbroeck, Van Campenhout & Cie SCS v. Belgian State [1995] ECR
I-4599.
Judicial Powers II 417
the various national instances’.63
It would thereby take into account ‘the basic
principles of the domestic judicial system, such as protection of the rights of the
defence, the principle of legal certainty and the proper conduct of procedure’.64
The results of this contextual test will be hard to predict as the Court emphasises
the case-by-case nature of its analysis. Instead of hard rules, the Court’s test is
here based on a balancing act between different procedural interests – not dissimilar
to a proportionality analysis.
May this balanced approach sometimes require national courts to create ‘new
remedies’ for the enforcement of European rights?The obligation to create new
remedies had been expressly rejected in the first historical phase of the effectiveness
principle.65
However, the Court appears to have confirmed this possibility
within its third historical phase.
In Unibet,66
the plaintiff sought a declaration by the Swedish courts that
Swedish legislation violated the EUTreaties’free movement provisions.However,
there existed no Swedish court procedure that allowed for an abstract review of
national legislation in light of European law.An individual who wished to challenge
a national rule would have to break national law first and then challenge
it in national proceedings brought against him. Did the non-existence of a freestanding
European review procedure violate the principle that there must be an
effective remedy in national law?67
Synthesising the two previous periods of its case law, the Court emphasised
that theTreaties were‘not intended to create new remedies in the national courts
to ensure the observance of [European] law other than those already laid down
by national law’, unless ‘it were apparent from the overall scheme of the national
legal system in question that no legal remedy existed which made it possible to
ensure, even indirectly, respect for an individual’s rights under [European] law’.68
Using its Peterbroeck test,69
the Court found that there existed various indirect
ways that did not make it ‘excessively difficult’ to challenge the compatibility
of Swedish legislation with European law.70
The request for a freestanding
action was consequently denied.Yet, the Court had expressly accepted – for the
first time – that the creation of new national remedies might exceptionally be
required by the effectiveness principle.
Has the Lisbon Treaty changed the balance between the principle of national
procedural autonomy and the effectiveness principle once more? The argument
63
Ibid., para. 14.
64
Ibid. For a confirmation of this contextual test, see Case C-2/08, Fallimento Olimpiclub,
EU:C:2009:506, esp. para. 27; Case C-377/14, Radlinger & Radlingerová v. Finway, para. 50.
65
Case 158/80, Rewe-Handelsgesellschaft Nord mbH and Rewe-Markt Steffen v. Hauptzollamt
Kiel (Butter-Cruises) [1981] ECR 1805.
66
Case C-432/05, Unibet v. Justitiekanslern [2007] ECR I-2271. But see also Case C-253/00,
Muñoz & Superior Fruiticola v. Frumar & Redbridge Produce Marketing [2002] ECR I-7289.
67
This was the first preliminary question in Case C-432/05, Unibet, para. 36.
68
Ibid., paras. 40 and 41 (with reference to Case 158/80, Rewe (Butter-Cruises)).
69
Case 432/05, Unibet, para. 54 (with reference to Case C-312/93, Peterbroeck, para. 14).
70
Case 432/05, Unibet, para. 64.
Governmental Powers418
could be made in light of the newly introduced Article 19(1)TEU and its insistence
that ‘Member States shall provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law’. However, the Court has
recently confirmed the Unibet status quo.71
Constitutional continuity has also been confirmed with regard to the – after
2009 – binding EU Charter of Fundamental Rights. Although Article 47 EU
Charter now expressly states that ‘[e]veryone whose rights and freedoms guaranteed
by the law of the Union are violated has the right to an effective remedy
before a tribunal’,this right already existed prior to the LisbonTreaty.And,while
national courts are indeed bound by the provision when enforcing Union law,72
the fundamental right to an effective remedy will only set an absolute minimum
floor to national procedural systems.73
b. Procedural Limits to the Invocability of European Law
Having looked at the general evolution of the effectiveness standard in the previous
section, this section will concentrate on a special thematic line within
the latest historical period of the principle. This jurisprudential line concerns
national procedural regimes governing the invocation of European law in
national proceedings.
In many national legal orders, civil procedures are based on the principle that
private parties are free to determine the content of their case.74
The rationale
behind this principle is private party autonomy. Unless a legal rule is seen as
mandatorily applicable on grounds of public policy,a court may only apply those
legal rules privately invoked. But even in administrative proceedings, a private
party might sometimes be required to invoke its rights at the correct judicial
stage.And where a party has failed to invoke a favourable right at first instance,
but discovers its existence on appeal,legal certainty might prevent it from invoking
it subsequently.
How have these principles been applied to the invocation of European law
in national proceedings?75
Will the effectiveness principle require national courts
71
Case C-583/11 P, Inuit v. Parliament and Council, EU:C:2013:625, paras. 103–4.
72
We shall see below that while EU fundamental rights are principally addressed to the
Union institutions, national courts are also bound when implementing EU law. On this
point, see Chapter 12, section 4.
73
See in particular Case C-279/09, DEB v. Germany [2010] ECR I-13849. For an excellent
analysis of the (non-)relationship and differences between the principle of effectiveness
and the principle of judicial protection in the EU Charter, see: J. Krommendijk,‘Is There
Light on the Horizon?The Distinction between “Rewe effectiveness” and the Principle of
Effective Judicial Protection in Article 47 of the Charter after Orizzonte’ (2016) 53 CML
Rev. 1395, esp. 1404ff.
74
On the distinction between ‘adversarial’ and ‘inquisitorial’ procedural systems, see M.
Glendon et al., Comparative LegalTraditions (Thomson, 2007).
75
This procedural problem is distinct from the structural problem whether national courts
might be prevented altogether from applying European law. For this structural problem
within Europe’s judicial federalism, see Chapter 10, section 4(b/aa).
Judicial Powers II 419
to apply European law as a matter of public policy? Or has the European legal
order followed a balanced approach according to which the national procedures
apply unless they make the enforcement of European law excessively difficult?
These complex procedural questions were tackled in Peterbroeck.76
The plaintiff
claimed that a Belgian law violated its free movement rights. Unfortunately,
the plea had not been raised in the first-instance proceedings; nor had it been
invoked in the possible time limit prior to the appeal proceedings. Belgian
procedural law consequently prevented the appeal court from considering the
European law question; yet, thinking that this procedural limitation might itself
violate European law, the national court referred a preliminary question to the
Court of Justice.
In its answer, the European Court developed its contextual test to discover
whether the application of national procedures rendered the application of
European law ‘excessively difficult’.77
And the Court held that this was the case
in the present context. Finding that the first-instance court had been unable to
make a preliminary reference as it was not a ‘court or tribunal’ in the sense of
Article 267 TFEU,78
the time limit for raising new pleas prior to appeals was
considered excessively short.The obligation not to raise points of European law
of its own motion thus did ‘not appear to be reasonably justifiable by principles
such as the requirement of legal certainty or the proper conduct of procedure’.79
But did this mean that national courts were positively required, as a matter
of general principle, to invoke European law ex officio? In a judgment delivered
on the very same day, the Court answered this question in the negative. In Van
Schijndel,80
the Court added an important caveat to the effectiveness principle.
The Court held:
76
Case C-312/93, Peterbroeck.
77
On this point, see ibid.
78
Ibid., para. 17. 79
Ibid., para. 20.
80
Joined Cases C-430/93 and C-431/93,Van Schijndel and Johannes Nicolaas Cornelis vanVeen
v. Stichting Pensioenfonds voor Fysiotherapeuten [1995] ECR I-4705.
81
Ibid.,paras.20–1.See also Case C-126/97,Eco Swiss ChinaTime Ltd v.Benetton International
NV [1999] ECR I-3055, para. 46:‘Moreover, domestic procedural rules which, upon the
expiry of that period, restrict the possibility of applying for annulment of a subsequent
arbitration award proceeding upon an interim arbitration award which is in the nature
[T]he domestic law principle that in civil proceedings a court must or may raise points
of its own motion is limited by its obligation to keep to the subject-matter of the
dispute and to base its decision on the facts put before it. That limitation is justified
by the principle that, in a civil suit, it is for the parties to take the initiative, the court
being able to act of its own motion only in exceptional cases where the public interest
requires its intervention. That principle reflects conceptions prevailing in most of the
Member States as to the relations between the State and the individual; it safeguards
the rights of the defence; and it ensures proper conduct of proceedings by, in particular,
protecting them from the delays inherent in the examination of new pleas.81
Governmental Powers420
This suggests that while the equivalence principle may oblige national courts
to raise European law of their own motion,82
the effectiveness principle hardly
ever will. The Court will here only challenge national procedural rules that
make the enforcement of European rights ‘virtually impossible or excessively
difficult’.83
This medium standard of effectiveness was subsequently confirmed and
refined.84
And we find a good clarification and classification of the case law
within this jurisprudential line in Van derWeerd.85
The Court here expressly distinguished
Peterbroeck as a special case‘by reasons of circumstances peculiar to the
dispute which led to the applicant in the main proceedings being deprived of the
opportunity to rely effectively on the incompatibility of a domestic provision
with [European] law’.86
But more importantly: the Court identified two key
factors in determining when it considers the effectiveness principle to demand
the ex officio application of European law. First, it emphasised that it would be
hesitant to interfere with the procedural autonomy of the national court, where
the parties had ‘a genuine opportunity to raise a plea based on [Union] law’.87
National courts will therefore generally not be asked to forsake their passive
role in private law actions. However, second, the question whether an ex officio
application of EU law was constitutionally required was dependent on the
importance of the respective European law at issue.
This second factor explains why the Court has been much more demanding
in cases involving consumer protection.88
For the Court treats this area of
of a final award, because it has become res judicata, are justified by the basic principles of
the national judicial system, such as the principle of legal certainty and acceptance of res
judicata, which is an expression of that principle.’
82
Joined Cases C-430/93 and C-431/93,Van Schijndel,para.13:‘Where,by virtue of domestic
law, courts or tribunals must raise of their own motion points of law based on binding
domestic rules which have not been raised by the parties, such an obligation also exists
where binding [European] rules are concerned.’
83
Case C-40/08, AsturcomTelecomunicaciones v. Rodríguez Nogueira [2009] ECR I-9579, para.
46.
84
See Case C-126/97, Eco Swiss China Time; Case C-240/98, Océano Grupo Editorial v.
Rocío Murciano Quintero [2000] ECR I-4941; Joined Cases C-397/98 and C-410/98,
Metallgesellschaft et al. v. Commissioners of Inland Revenue et al. [2001] ECR I-1727; Case
C-2/06, Kempter v. Hauptzollamt Hamburg-Jonas [2008] ECR I-411.
85
Case C-222/05, Van der Weerd et al. v. Minister van Landbouw, Natuur en Voedselkwaliteit
[2007] ECR I-4233.
86
Ibid., para. 40.
87
Ibid., para. 41.
88
See Case C-243/08, Pannon v. Erzsébet Sustikné Gy rfi [2009] ECR I-4713.The judgment
was subsequently confirmed in Case C-618/10, Banco Espanol de Crédito EU:C:2012:349.
In Case C-377/14, Radlinger & Radlingerová v. Finway, the Court has even referred to the
obligation to assess of its own motion EU consumer law as ‘settled case-law of the Court’
and held that ‘the imbalance which exists between the consumer and the seller or supplier
may be corrected by the court hearing such disputes only by positive action unconnected
with the actual parties to the contract’ (ibid., paras. 52–3).The exact constitutional principles
within this area are not too clear however. For an overview of the relevant case law,
see M. Ebers,‘From Océano to Asturcom: Mandatory Consumer Law, ex officio Application
Judicial Powers II 421
European law as an expression of ‘European public policy’.The same approach
seems to apply to EU competition law, which the Court considers ‘a matter of
public policy which must be automatically applied by national courts’.89
3. The Liability Principle
The original EuropeanTreaties appeared to exclusively accept national remedies
when it came to the decentralised enforcement of European law. For the EU
Treaties were apparently ‘not intended to create new remedies in the national
courts to ensure the observance of [Union] law other than those already laid
down by national law’.90
This apparent competence limit was to protect the procedural
autonomy of the Member States. For even if the Court had pushed for a
degree of (judicial) harmonisation in the decentralised enforcement of European
law via the principles of equivalence and effectiveness, it would be national remedies
whose scope or substance was extended.
But what would happen if no national remedy existed at all?Would the nonexistence
of such a national remedy not be an absolute barrier to the enforcement
of a European right? Theoretically, this should indeed be the end of the
story;yet in what was perceived as a dramatic turn of events,the European Court
renounced its earlier position and proclaimed a European remedy for breaches of
European law in Francovich.91
The Court now insisted that in certain situations
individuals must always be able to sue,where the State was liable for losses caused
by its violation of European law.92
What are the conditions for State liability in the European Union?Will every
breach trigger the liability principle?We shall look at these questions first,before
analysing whether the principle only applies against the State or also captures
private party actions.The Court indeed appears to have extended the liability
principle from violations of European law by public authorities to breaches of
European law by private parties.
a. State Liability: The Francovich Doctrine
Under the principle of effectiveness, national remedies must not make the
enforcement of European law excessively difficult. But this did not mean that
States would have to compensate all damage resulting from their breaches of
of European Union Law and res judicata’ (2010) European Review of Private Law 823;
H.-W.Micklitz and N.Reich,‘The Court and Sleeping Beauty:The Revival of the Unfair
Terms Directive (UTD)’ (2014) 51 CML Rev. 771 at 780ff.
89
Case C-295/04, Manfredi v. Lloyd Adriatico Assicurazioni SpA [2006] ECR I-6619, para. 31.
90
Case 158/80, Rewe (Butter-Cruises).We saw above that the Court appears to have recently
changed its view with regard to the principle of effectiveness.
91
Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci et al. v. Italy [1991] ECR I-5357.
92
This European remedy contrasts favourably with the absence of such a remedy in the US
legal order. In the United States, the doctrine of ‘sovereign immunity’ offers the Member
States a shield against liability actions for damages resulting from a violation of Union law.
Governmental Powers422
European law. The essential question for a long time therefore was ‘whether
[European] law requires the national courts to acknowledge a right to damages
vested in the victims of the violation of [European] law and to order public
authorities,found to have infringed [European] law,to pay compensation to such
persons, and if so, in which circumstances and according to which criteria’.93
For a long time,the Court had been ambivalent towards this question.While in
one case it had positively found that a State’s violation of European law required
it ‘to make reparation for any unlawful consequences which may have ensued’,94
in another case it held that if ‘damage has been caused through an infringement
of [European] law the State is liable to the injured party of the consequences
in the context of the provisions of national law on the liability of the State’.95
Did this
mean that the liability of the State depended on the existence of such a remedy
in national law?96
Or, did the Court have an independent European remedy in
mind? This question was long undecided – even if for a clairvoyant observer
there was ‘little doubt that one future day the European Court will be asked to
say, straightforwardly, whether [European] law requires a remedy in damages to
be made available in the national courts’.97
This day came on 8 January 1990. On that day, the Court received a series of
preliminary questions in Francovich and others v. Italy.98
The facts of the case are
memorably sad.99
Italy had flagrantly flouted its obligations under the EUTreaties
by failing to implement a European directive designed to protect employees in
the event of their employer’s insolvency.100
The directive had required Member
States to pass national legislation guaranteeing the payment of outstanding wages.
Francovich had been employed by an Italian company, but had hardly received
any wages.Having brought proceedings against his employer,the latter had gone
insolvent. For that reason he brought a separate action against the Italian State
to cover his losses. In the course of these second proceedings, the national court
asked the European Court whether the State itself would be obliged to cover the
losses of the employees.The European Court found that the directive had left the
Member States a‘broad discretion with regard to the organisation,operation and
93
A. Barav,‘Damages in the Domestic Courts for Breach of Community Law by National
Public Authorities’,in H. G.Schermers et al.(eds.),Non-contractual Liability of the European
Communities (Nijhoff, 1988), 149.
94
Case 6/60,Humblet v.Belgium [1960] ECR (English Special Edition) 559 at 569 (emphasis
added).
95
Case 60/75, Russo v. Azienda di Stato per gli interventi sul mercato agricolo [1976] ECR 45,
para. 9 (emphasis added).
96
For an (outdated) overview of the damages provisions in national law,see N.Green and A.
Barav,‘Damages in the National Courts for Breach of Community Law’(1986) 6 YEL 55.
97
Barav,‘Damages in the Domestic Courts’ (n. 93 above), 165.
98
Joined Cases C-6/90 and C-9/90, Francovich.
99
Opinion of Advocate General Mischo (ibid., para. 1):‘Rarely has the Court been called
upon to decide a case in which the adverse consequences for the individuals concerned
of failure to implement a directive were as shocking as in the case now before us.’
100
The Court had already expressly condemned this failure in Case 22/87, Commission v.
Italian Republic [1989] ECR 143.
Judicial Powers II 423
financing of the guarantee institutions’, and it therefore lacked direct effect.101
It followed that ‘the persons concerned cannot enforce those rights against the
State before the national courts where no implementing measures are adopted
within the prescribed period’.102
But this was not the end of the story!The Court – unhappy with the negative
result flowing from the lack of direct effect – continued:
101
Joined Cases C-6/90 and C-9/90, Francovich, para. 25.
102
Ibid., para. 27. 103
Ibid., paras. 33–7. 104
Ibid., para. 41.
105
On the application of this new principle in the United Kingdom, see J. Convery,‘State
Liability in the United Kingdom after Brasserie du Pêcheur’ (1997) 34 CML Rev. 603.
106
Joined Cases C-46/93 and C-48/93,Brasserie du Pêcheur SA v.Bundesrepublik Deutschland and
the Queen v. Secretary of State forTransport, ex p. Factortame Ltd and others [1996] ECR I-1029.
[T]he principle whereby a State must be liable for loss and damage caused to individuals
as a result of breaches of [European] law for which the State can be held
responsible is inherent in the system of the Treaty. A further basis for the obligation of
Member States to make good such loss and damage is to be found in Article [4(3)] of
the Treaty [on European Union], under which the Member States are required to take
all appropriate measures, whether general or particular, to ensure fulfilment of their
obligations under [European] law. Among these is the obligation to nullify the unlawful
consequences of a breach of [European] law. It follows from all the foregoing that
it is a principle of [European] law that the Member States are obliged to make good
loss and damage caused to individuals by breaches of [European] law for which they
can be held responsible.103
The European Court here took a qualitative leap in the context of remedies.
Up to this point, it could still be argued that the principle of national
procedural autonomy precluded the creation of new – European – remedies, as
the principles of equivalence and effectiveness solely required the extension of
national remedies to violations of European law.With Francovich the Court clarified
that the right to reparation for such violations was ‘a right founded directly
on [European] law’.104
The action for State liability was thus a European remedy
that had to be made available in the national courts.105
How did the Court justify this ‘revolutionary’ result? It had recourse to the
usual constitutional suspects: the special nature of the European Treaties and
the general duty under Article 4(3) TEU.A more sophisticated justification was
added by a later judgment. In Brasserie du Pêcheur,106
the Court thus found:
Since the Treaty contains no provision expressly and specifically governing the consequences
of breaches of [European] law by Member States, it is for the Court, in
pursuance of the task conferred on it by Article [19] of the [EU] Treaty of ensuring
that in the interpretation and application of the Treaty the law is observed, to rule
on such a question in accordance with generally accepted methods of interpretation,
in particular by reference to the fundamental principles of the [Union] legal
Governmental Powers424
The principle of State liability was thus rooted in the constitutional traditions
common to the Member States and was equally recognised in the principle of
Union liability for breaches of European law.108
There was consequently a parallel
between State liability and Union liability for tortious acts of public authorities;
and this parallelism would have a decisive effect on the conditions for State liability
for breaches of European law.
aa. The Three Conditions for State Liability
Having created the liability principle for State actions, the Francovich Court
nonetheless made the principle dependent on the fulfilment of three conditions:
107
Ibid., paras. 27–9.
108
On this point, see Chapter 10, section 2.
109
Joined Cases C-6/90 and C-9/90, Francovich, paras. 40–1.
110
For an analysis of this criterion, see Dougan, National Remedies (n. 18 above), 238ff. For
a case in which the European Court found that a directive did not grant rights, see Case
C-222/02, Paul et al. v. Germany [2004] ECR I-9425, para. 51:‘Under those conditions,
and for the same reasons as those underlying the answers given above,the directives cannot
be regarded as conferring on individuals, in the event that their deposits are unavailable as
a result of defective supervision on the part of the competent national authorities, rights
capable of giving rise to liability on the part of the State on the basis of [European] law.’
system and, where necessary, general principles common to the legal systems of
the Member States. Indeed, it is to the general principles common to the laws of
the Member States that the second paragraph of Article [340] of the [FEU] Treaty
refers as the basis of the non-contractual liability of the [Union] for damage caused
by its institutions or by its servants in the performance of their duties. The principle
of the non-contractual liability of the [Union] expressly laid down in Article [340]
of the [FEU] Treaty is simply an expression of the general principle familiar to the
legal systems of the Member States that an unlawful act or omission gives rise to
an obligation to make good the damage caused. That provision also reflects the
obligation on public authorities to make good damage caused in the performance
of their duties.107
The first of those conditions is that the result prescribed by the directive should entail
the grant of rights to individuals. The second condition is that it should be possible
to identify the content of those rights on the basis of the provisions of the directive.
Finally, the third condition is the existence of a causal link between the breach of the
State’s obligation and the loss and damage suffered by the injured parties. Those
conditions are sufficient to give rise to a right on the part of individuals to obtain
reparation, a right founded directly on [European] law.109
The original liability test was thus as follows: European law must have been
intended to grant individual rights, and these rights would – despite their
potential lack of direct effect – have to be identifiable.110
If this was the case,and
Judicial Powers II 425
if European law was breached by a Member State not guaranteeing these rights,
any loss that was caused by that breach could be reclaimed by the individual.111
On its face, this test appeared to be complete and therefore one of strict liability:
any breach of an identifiable European right would lead to State liability. But
the Court subsequently clarified that this was not the case.The Francovich test
was confined to the specific context of a flagrant non-implementation of a
European directive.
Drawing on its jurisprudence on Union liability,the Court indeed introduced
a much more restrictive principle of State liability in Brasserie du Pêcheur.112
For
the Court here clarified that State liability was to be confined to ‘sufficiently
serious’ breaches. To cover up the fact that it had implicitly added a ‘fourth’
condition to its Francovich test, the Court replaced the new condition with the
second criterion of its ‘old’ test.The new liability test could thus continue to
insist on three – necessary and sufficient – conditions. However, it now read as
follows:
111
For an analysis of this criterion, see Tridimas, General Principles (n. 32 above), 529–33. See
particularly: Case C-319/96, Brinkmann Tabakfabriken GmbH v. Skatteministeriet [1998]
ECR I-5255.
112
Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur, para. 42:‘The protection of the
rights which individuals derive from [European] law cannot vary depending on whether
a national authority or a [Union] authority is responsible for the damage.’
113
Ibid., para. 51.
114
Ibid., para. 45.
115
Ibid. See also Case C-392/93, The Queen v. HM Treasury, ex p. British Telecommunications
[1996] ECR I-10631, para. 42.
[European] law confers a right to reparation where three conditions are met: the rule
of law infringed must be intended to confer rights on individuals; the breach must
be sufficiently serious; and there must be a direct causal link between the breach
of the obligation resting on the State and the damage sustained by the injured
parties.113
The Court justified its limitation of State liability to ‘sufficiently serious’
breaches by reference to the wide discretion that Member States might enjoy,
especially when exercising legislative powers.The ‘limited liability’ of the legislature
is indeed a common constitutional tradition of the Member States and
equally applies to the Union legislature. Where legislative functions are concerned,
Member States ‘must not be hindered by the prospect of actions for
damages’.114
The special democratic legitimacy attached to parliamentary legislation
here provides an argument against public liability for breaches of private
rights,‘unless the institution concerned has manifestly and gravely disregarded
the limits on the exercise of its powers’.115
And in analysing whether a breach
was sufficiently serious in the sense of a ‘manifest … and grave … disregard …’,
Governmental Powers426
the Court would balance a number of diverse factors,116
such as the degree of
discretion enjoyed by the Member States as well as the clarity of the Union
norm breached.
Unfortunately, there are very few hard and fast rules to determine when a
breach is sufficiently serious. Indeed, the second criterion of the Brasserie test
has been subject to much uncertainty.Would the manifest and grave disregard
test only apply to the legislative function? The Court appears to have answered
this question in Hedley Lomas,117
when dealing with the failure of the national
executive to correctly apply European law.The Court here found:
116
Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur, para. 56:‘The factors which the
competent court may take into consideration include the clarity and precision of the rule
breached, the measure of discretion left by that rule to the national or [Union] authorities,
whether the infringement and the damage caused was intentional or involuntary,
whether any error of law was excusable or inexcusable, the fact that the position taken
by a [Union] institution may have contributed towards the omission, and the adoption or
retention of national measures or practices contrary to [European] law.’
117
Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, ex p. Hedley Lomas
[1996] ECR I-2553.
118
Ibid., para. 28.
119
Case C-424/97, Haim v. Kassenzahnärztliche Vereinigung Nordrhein [2000] ECR I-5123,
para. 38. See also Case C-470/03, A. G. M.-COS.MET et al. v. SuomenValtio et al. [2007]
ECR I-2749.
120
Case C-118/00, Larsy v. Institut national d’assurances sociales pour travailleurs indépendants
[2001] ECR I-5063.
121
Ibid., para. 38.
[W]here, at the time when it committed the infringement, the Member State in question
was not called upon to make any legislative choices and had only considerably
reduced, or even no, discretion, the mere infringement of [European] law may be
sufficient to establish the existence of a sufficiently serious breach.118
[A] breach of [European] law is sufficiently serious where a Member State, in the exercise
of its legislative powers, has manifestly and gravely disregarded the limits on its
powers and, secondly, that where, at the time when it committed the infringement,
the Member State in question had only considerably reduced, or even no, discretion,
the mere infringement of [European] law may be sufficient to establish the existence
of a sufficiently serious breach.121
This confirmed the potential liability of the executive branch and clarified
that the less the discretion enjoyed by the latter, the more likely would be the
liability of a State.119
The Court here indeed seemed to acknowledge two alternatives
within the second Brasserie condition – depending whether the State
violated European law via its legislative or executive branch.The existence of
these two alternatives would be confirmed in Larsy,120
where the Court found:
Judicial Powers II 427
With regard to executive breaches, the threshold for establishing state liability
is thus much lower than the liability threshold for legislative actions.While the
incorrect application of a clear European norm by the national executive will
incur strict liability, the incorrect implementation of a directive by the national
legislature may not.122
However, the European Court strictly distinguishes the
incorrect implementation of a directive from its non-implementation.The use of
a stricter liability regime for legislative non-action makes much sense, for the
failure of the State cannot be excused by reference to the exercise of legislative
discretion.The Court has consequently held that the non-implementation of a
directive could per se constitute a sufficiently serious breach.123
What about the third branch of government? Was the extension of State liability
to national courts ‘unthinkable’?124
And, if it were not, would the Court
extend its ordinary constitutional principles to judicial breaches of European
law? The unthinkable thought deserves a special section.
bb. State Liability for Judicial Breaches of European Law
Common-sense intuition identifies the ‘State’ with its legislative and executive
branches.The ‘State’ generally acts through its Parliament and its government
or administration.Yet there exists of course a third power within the State: the
judiciary. The benign neglect of the ‘least dangerous branch’ stems from two
reductionist perceptions. First, the judiciary is reduced to a passive organ that
merely represents the ‘mouth of the law’.125
Second, its independence from the
legislature and executive is mistaken as an independence from the State. Both
perceptions are of course misleading: for in adjudicating disputes between private
parties and in controlling the other State branches, the judiciary exercises
State functions. And, like the national executive, the national judiciary may
breach European law by misapplying it in the national legal order.This misapplication
could – theoretically – constitute a violation that triggers State liability
under EU law.
122
Joined Cases C-283 and C-291–2/94, Denkavit et al. v. Bundesamt für Finanzen [1996]
ECR I-4845.
123
Case C-178/94, Dillenkofer v. Germany [1996] ECR I-4845, para. 29:‘failure to take any
measure to transpose a directive in order to achieve the result it prescribes within the
period laid down for that purpose constitutes per se a serious breach of [European] law
and consequently gives rise to a right of reparation for individuals suffering injury if the
result prescribed by the directive entails the grant to individuals of rights whose content
is identifiable and a causal link exists between the breach of the State’s obligation and the
loss and damage suffered’. Interestingly, as Tridimas points out, this may not necessarily
be the case as a Member State may believe that its existing laws already fulfil the requirements
of a directive (General Principles (n. 32 above), 506).
124
H.Toner,‘Thinking the Unthinkable? State Liability for Judicial Acts after Factortame (III)’
(1997) 17 YEL 165.
125
Charles de Secondat, Baron de Montesquieu, The Spirit of Laws (translated and edited by
T. Nugent, and revised by J. Prichard) (Bell, 1914); available at: www.constitution.org/
cm/sol.htm), Book XI, ch. 6.
Governmental Powers428
This theoretical possibility had implicitly been recognised by the Brasserie
Court.126
And the practical possibility was confirmed in Köbler.127
Austrian legislation
had granted a special length-of-service increment to professors having
taught for 15 years at Austrian universities, without taking into account any
service spent at universities of other Member States.The plaintiff – a university
professor having taught abroad – brought an action before the Austrian Supreme
Administrative Court, claiming that his free movement rights had been violated.
Despite being a court ‘against whose decision there is no judicial remedy under
national law’, the Supreme Administrative Court did not request a preliminary
ruling from the Court of Justice as it – wrongly – believed the answer to the
preliminary question to be clear.128
As a consequence, it – wrongly – decided
that the Austrian norm did not violate the plaintiff’s directly effective free movement
rights.
Not being able to appeal against the final decision, Köbler brought a new
action for damages in a (lower) civil court. In the course of these civil proceedings,
the national court asked the European Court of Justice whether the principle
of State liability for breaches of European law extended to (wrong) judicial
decisions.And the positive response was as follows:
126
The Court had here clarified that the principle of State liability ‘holds good for any case
in which a Member State breaches [European] law,whatever the organ of the State whose act
or omission was responsible for the breach’(Joined Cases C-46/93 and C-48/93,Brasserie
du Pêcheur, para. 32, emphasis added).
127
Case C-224/01, Köbler v. Austria [2003] ECR I-10239.The facts of the case were slightly
more complex than presented here.For a fuller discussion of the case,see M.Breuer,‘State
Liability for Judicial Wrongs and Community Law:The Case of Gerhard Köbler v. Austria’
(2004) 29 EL Rev. 243.
128
On the obligation to refer preliminary questions for courts of last resort under Art.267(3)
TFEU and the acte clair doctrine, see Chapter 10, section 4(c).
129
Case C-224/01, Köbler, paras. 33–4.
In the light of the essential role played by the judiciary in the protection of the rights
derived by individuals from [European] rules, the full effectiveness of those rules
would be called in question and the protection of those rights would be weakened if
individuals were precluded from being able, under certain conditions, to obtain reparation
when their rights are affected by an infringement of [European] law attributable
to a decision of a court of a Member State adjudicating at last instance. It must be
stressed, in that context, that a court adjudicating at last instance is by definition the
last judicial body before which individuals may assert the rights conferred on them
by [European] law. Since an infringement of those rights by a final decision of such a
court cannot thereafter normally be corrected, individuals cannot be deprived of the
possibility of rendering the State liable in order in that way to obtain legal protection
of their rights.129
The liability for damages would thereby not undermine the independence
of the judiciary. For the principle of State liability ‘concerns not the personal
Judicial Powers II 429
liability of the judge but that of the State’.130
Nor would the idea of State liability
for wrong judicial decisions call into question the constitutional principle of res
judicata.After all, the Francovich remedy would not revise the judicial decision of
a court, but provide damages for the wrong – final – judgment.The principle of
State liability meant ‘reparation, but not revision of the judicial decision which
was responsible for the damage’.131
But what if revision through an appeal was
still possible in the national legal order? Will State liability for judicial acts of
lower courts provide a complementary remedy? In line with the general character
of State liability as a remedy of last resort,132
this should be denied.The
Köbler Court indeed appeared to confine the liability principle to national courts
against whose decision there was no appeal.133
Having thus confirmed the possibility of Francovich liability for final courts,134
would the substantive conditions for this liability differ from the ordinary criteria
established in Brasserie du Pêcheur? The Court found that this was not
the case: State liability for judicial decisions would be ‘governed by the same
conditions’.135
What did this mean for the second prong of the Brasserie test
requiring a ‘sufficiently serious’ breach of European law? For the Court this
meant that State liability for a judicial decision would only arise ‘in the exceptional
case where the court has manifestly infringed the applicable law’.136
And
this depended on, inter alia, ‘the degree of clarity and precision of the rule
infringed, whether the infringement was intentional, whether the error of law
was excusable or inexcusable’.137
The Court thus aligned its test for judicial acts
with the test for (discretionary) legislative acts. For unlike (non-discretionary)
executive acts, liability for judicial behaviour could not simply be established by
a misapplication of European law. Liability was limited to exceptional circumstances,
where a manifest infringement of European law had occurred; and this
was in particular the case, where the national court had disregarded the settled
jurisprudence of the ECJ.138
130
Ibid., para. 42. 131
Ibid., para. 39.
132
On this point, see Conclusion below.
133
Case C-224/01, Köbler, para. 53 (emphasis added): ‘State liability for an infringement
of [European] law by a decision of a national court adjudicating at last instance can be
incurred only in the exceptional case where the court has manifestly infringed the applicable
law.’
134
Köbler itself was subsequently confirmed in Case C-173/03, Traghetti del Mediterraneo v.
Italy [2006] ECR I-5177.
135
Case C-224/01, Köbler, para. 52.And the Court clarified in Case C-173/03, Traghetti del
Mediterraneo that ‘under no circumstances may such criteria impose requirements stricter
than that of a manifest infringement of the applicable law, as set out in paragraphs 53
to 56 of the Köbler judgment’ (ibid., para. 44), and that European law thus ‘precludes
national legislation which limits such liability solely to cases of intentional fault’ (ibid.,
para. 46). For a discussion of this decision, see B. Beutler,‘State Liability for Breaches of
Community Law by National Courts: Is the Requirement of a Manifest Infringement of
the Applicable Law an Insurmountable Obstacle?’ (2009) 46 CML Rev. 773.
136
Case C-224/01, Köbler, para. 53.
137
Ibid., para. 55. 138
Ibid., para. 56.
Governmental Powers430
In the present case, these conditions were not met. For although the Supreme
Administrative Court had wrongly interpreted European law,its incorrect application
of the Treaty was not ‘manifest in nature’ and thus did not constitute a
sufficiently serious breach of European law.139
b. Private Liability: The Courage Doctrine
The idea of ‘State liability’ applies – it almost goes without saying – where the
State is liable for a breach of European law.This vertical dimension of the liability
principle has long been established, but what about the principle’s horizontal
dimension? While the principles of equivalence and effectiveness may require
that breaches of European law by private parties be adequately compensated
under national remedial law, will there be a European remedy according to which
individuals are liable to pay damages for the losses suffered by other private par-
ties?140
From the very beginning,the Union legal order envisaged that European
law could directly impose obligations on individuals.141
But did this imply that a
failure to fulfil these obligations could trigger the secondary obligation to make
good the damage suffered by others?
The Court has given an ambivalent answer to this question in Courage v.
Crehan.142
The case concerned European competition law, which directly
imposes obligations on private parties not to conclude anticompetitive agreements
under Article 101 TFEU.143
The plaintiff had brought an action against
a public house tenant for the recovery of unpaid deliveries of beer.The tenant
attacked the underlying beer-supply agreement by arguing that it was void as an
anticompetitive restriction, and counterclaimed damages that resulted from the
illegal agreement. However, under English law a party to an illegal agreement
was not entitled to claim damages; and so the Court of Appeal raised the question
whether this absolute bar to compensation itself violated European law.The
European Court considered the issue as follows:
139
Ibid., paras. 120–4. For a similar result, see more recently Case C-168/15, Tomášová v.
Slovenská republika – Ministerstvo spravodlivosti SR, EU:C:2016:602.
140
In favour of this proposition, see Opinion of Advocate General van Gerven in Case
C-128/92, H. J. Banks & Co. Ltd v. British Coal Corporation [1994] ECR I-1209, paras.
40–1:‘[T]he question arises whether the value of the Francovich judgment as a precedent
extends to action by an individual (or undertaking) against another individual (or undertaking)
for damages in respect of breach by the latter of a Treaty provision which also
has direct effect in relations between individuals … In my view, that question must be
answered in the affirmative[.]’
141
On this point, see Chapter 3, Introduction.
142
Case C-453/99, Courage v. Crehan [2001] ECR I-6297.
143
Art. 101(1) TFEU states: ‘The following shall be prohibited as incompatible with the
internal market: all agreements between undertakings, decisions by associations of undertakings
and concerted practices which may affect trade between Member States and
which have as their object or effect the prevention, restriction or distortion of competition
within the internal market[.]’
Judicial Powers II 431
The Court here insisted on damages for losses suffered by a breach of European
competition law by a private party. But was this a national or a European remedy?
The original ambivalence surrounding the principle of State liability now
embraced the principle of private liability.145
Did Courage represent a horizontal extension of the liability principle? On
a minimal reading, the ruling could be regarded as a simple application of the
principle of effectiveness.146
After all, the last sentence of the above passage
seemed to outlaw a restriction to a national remedy.And the Court did not place
its reasoning inside the Brasserie test. On a maximal reading, by contrast, Courage
could be seen as a new constitutional doctrine that establishes a European remedy
against private parties violating European law.147
The constitutional language
and spirit of the ruling indeed pointed towards a new and independent source of
liability.148
And the Court did not place its reasoning into the analytical framework
governing the effectiveness principle.
144
Case C-453/99, Courage, paras. 26–7.
145
For an early expression of this ambivalence,see O.Odudu and J.Edelman,‘Compensatory
Damages for Breach of Article 81’ (2002) 27 EL Rev. 327 at 336:‘Though, on its face,
Courage does not suggest that a new remedy should be created to protect [European]
rights, simply that existing national remedies should not be denied, Courage can be
read as supporting the idea that compensatory damages must generally be provided for
breach of Article [101], and must be available to all those who have suffered from the
breach.’
146
Dougan, National Remedies (n. 18 above), 379 (pointing to the absolute bar on one party
seeking compensation).
147
N. Reich, “The “Courage” Doctrine: Encouraging or Discouraging Compensation for
Antitrust Injuries?’(2005) 42 CML Rev. 35 at 38;A.Komninos,‘Civil Antitrust Remedies
between Community and National Law’, in C. Barnard and O. Odudu (eds.), The Outer
Limits of European Law (Hart,2009),363 at 383:‘The enunciation of a [European] right in
damages and, by implication, of a principle of civil liability of individuals for breaches of
[European] law,is a logical consequence of the Court’s abundant case law on state liability,
and reflects a more general principle of [European] law that, everyone is bound to make
good loss or damage arising as a result of his conduct in breach of a legal duty.’
148
Case C-453/99, Courage, para. 19.
The full effectiveness of Article [101] of the [FEU] Treaty and, in particular, the practical
effect of the prohibition laid down in Article [101(1)] would be put at risk if it were
not open to any individual to claim damages for loss caused to him by a contract or
by conduct liable to restrict or distort competition. Indeed, the existence of such a
right strengthens the working of the [European] competition rules and discourages
agreements or practices, which are frequently covert, which are liable to restrict or
distort competition. From that point of view, actions for damages before the national
courts can make a significant contribution to the maintenance of effective competition
in the [Union]. There should not therefore be any absolute bar to such an action
being brought by a party to a contract which would be held to violate the competition
rules.144
Governmental Powers432
If we accept the wider reading of Courage, what conditions should the Court
apply to private party violations of European law? If Courage was the private
Francovich, then Manfredi is the private Brasserie. In Manfredi,149
Italian consumers
had brought an action against their insurance companies.They claimed that
those companies had engaged in anticompetitive behaviour; and, as a result of
this breach of the European competition rules, their car insurance was on average
20 per cent higher than the normal price would have been. Could they ask
for damages?
The Court here repeated that‘the practical effect of Article [101(1)] would be
put at risk if it were not open to any individual to claim damages for loss caused
to him by a contract or by conduct liable to restrict or distort competition’; and
concluded that therefore ‘any individual can claim compensation for the harm
suffered where there is a causal relationship between that harm and an agreement
or practice prohibited under Article [101 TFEU]’.150
This sounded like
a strict liability test, for there was no express reference to a sufficiently serious
breach. Had the Court thus dropped the second Brasserie criterion, because the
European competition rules were unconditional and sufficiently clear so that
‘the mere infringement of [European] law may be sufficient to establish the
existence of a sufficiently serious breach’?151
The Court has remained ambivalent
on this issue. Indeed, it has generally left the detailed procedural framework to
national law.152
The existence of a general liability test for public and private violations of
European law is thus in doubt. But even if Courage is eventually integrated
into a unified liability test, it is important to underline that the private liability
doctrine should be confined to breaches of obligations directly addressed
to individuals.153
Only where European law directly regulates private party
actions should the Courage doctrine apply. Private liability ought thus never to
originate in breaches of obligations addressed to public authorities – even if
they have horizontal direct effect.154
Not horizontal direct effect, but the narrower
criterion of whether a European norm addresses private party actions
should constitute the unwritten premise of private party liability.The Courage
doctrine should thus be confined to breaches of a – very – qualified part of
European law.
149
Joined Cases C-295/04 to C-298/04, Manfredi et al. v. Lloyd Adriatico Assicurazioni et al.
[2006] ECR I-6619.
150
Ibid.,para.61.For a more recent conformation of this approach,see Case C-557/12,Kone
and others v. ÖBB Infrastrukur, EU:C:2014:1317.
151
Case C-5/94, Hedley Lomas, para. 28.
152
Joined Cases C-295/04 to C-298/04, Manfredi, para. 62. On this point with regard to
Francovich liability more generally, see n. 197ff. below.
153
Similarly: S. Drake, ‘Scope of Courage and the Principle of “Individual Liability’ for
Damages: Further Development of the Principle of Effective Judicial Protection by the
Court of Justice’ (2006) 31 EL Rev. 841 at 861.
154
On the distinction between horizontal direct effect and private party actions,see Chapter
3, section 1(b).
Judicial Powers II 433
4. European Harmonisation: Judicial Cooperation
Let us recall the core principle governing the decentralised enforcement of
European law by national courts:
155
Case 33/76, Rewe, para. 5.
156
One of the more advanced areas here is EU competition law, see Directive 2014/104 on
certain rules governing actions for damages under national law for infringement of the
competition law provisions of the Member States and of the European Union [2014]
OJ L 349/1. For an analysis of the directive, see N. Dunne, ‘Courage and Compromise:
The Directive on Antitrust Damages’ (2015) 40 EL Rev. 581; and more generally: M.
Bergström et al.(eds.),Harmonising EU Competition Litigation:The New Directive and Beyond
(Hart, 2016). Apart from EU competition law, there are also other substantive areas in
which the Union has specifically tried to harmonise national procedural laws, yet even
here,‘the most common approach was – and indeed remains – to include at most only a
limited number of enforcement-related provisions in acts that primarily deal with substantive
matters’ (F. G. Wilman, ‘The End of the Absence? The Growing Body of EU
Legislation on Private Enforcement and the Main Remedies It provides for’ (2016) 53
CML Rev. 887 at 893).
157
With regard to civil law ‘EU remedies’, see E. Storskrubb, Civil Procedure and EU Law:A
Policy Area Uncovered (Oxford University Press, 2008). For an overview of EU legislation
in criminal proceedings, seeV. Mitsilegas, EU Criminal Law after Lisbon (Hart, 2016), chs.
6–7.
[I]n the absence of [European] rules on this subject, it is for the domestic legal system
of each Member State to designate the courts having jurisdiction and to determine
the procedural conditions governing actions at law intended to ensure the protection
of the rights which citizens have derived from the direct effect of [European] law …
In the absence of such measures of harmonisation the right conferred by [European]
law must [thus] be exercised before the national courts in accordance with the conditions
laid down by national rules.155
We saw above that this national procedural autonomy was however only relative;
and the first three sections of this chapter explored three constitutional
principles that have come to limit the procedural autonomy of national courts.
Importantly: these three principles – the principles of equivalence, effectiveness
and liability – generally come to operate in the absence of any European harmonisation.Whenever
European harmonisation has taken place, on the other hand, our
three constitutional principles may be replaced by more specific EU legislative
rules.
The process of procedural harmonisation has however been slow and piecemeal.
In the past decades, the Union has only managed to harmonise national
procedural laws in a small number of substantive areas156
while also only providing
a small number of general ‘EU remedies’ in civil (and criminal) proceedings.157
The primary focus of the Union’s harmonisation effort has thereby been
on the jurisdictional coordination of national courts. What is the problem
here? According to the idea of national sovereignty, national courts
Governmental Powers434
may – theoretically – claim ‘universal’ jurisdiction for all legal problems in the
world.158
In the context of the European Union, does that means that an EU
citizen could go to any national court when enforcing her EU rights? Imagine
the following scenario: a German consumer, living in the United Kingdom, has
bought a product from a French business that has violated the EU competition
rules: can she go to an English court to ask for damages? Or is she obliged to
seek redress in a French or a German court?
This question concerns the horizontal division of jurisdictional competences
between national courts; and EU harmonisation has here been adopted to ‘federally’coordinate
them so as to prevent‘parallel proceedings’on the same subject
matter. EU harmonisation in this context is not concerned with the question of
whether a national legal order offers efficient remedies for the enforcement of
EU law. It rather concerns the preliminary question which national legal order
will have jurisdiction; and this question is, in turn, important because the Union
legal order has tied this jurisdictional question to the idea of judicial cooperation
and the mutual recognition of national judgments in the Union.
a. Cooperation and Mutual Recognition in Civil Matters
The Union competence with regard to judicial cooperation in civil matters can
be found in Article 81 TFEU.159
It states:
1. The Union shall develop judicial cooperation in civil matters having cross-border
implications, based on the principle of mutual recognition of judgments and
of decisions in extrajudicial cases. Such cooperation may include the adoption
of measures for the approximation of the laws and regulations of the Member
States.
158
Many national legal orders have nevertheless recognised self-imposed restrictions especially
with regard to civil law.These limits are laid down in a State’s ‘private international
law’ legislation. For an analysis of the English ‘private international law’, see P.Torremans
et al. (eds.), Cheshire, North & Fawcett on Private International Law (Oxford University
Press, 2017).
159
The provision constitutes, on its own, Ch. 3 (‘Judicial Cooperation in Civil Matters’)
of Title V (‘Area of Freedom, Security and Justice’) of the TFEU. Importantly, all acts
adopted within Title V will generally not bind the United Kingdom and Ireland (see:
Protocol No. 21 on the Position of the United Kingdom and Ireland in Respect of the
Area of Freedom, Security and Justice). Despite this general opt-out, the Protocol has
allowed the UK and Ireland to ‘opt in’ to individual measures (ibid., Arts. 3 and 4), and
the two States have indeed, with very few exceptions, made use of this for the legislation
adopted under Art. 81 TFEU.A more complex situation, applies to Denmark, which also
benefits from a general opt-out (see Protocol No. 22 on the Position of Denmark).Yet
instead of generally opting back into EU secondary law, Denmark has preferred to generally
stay out.The major exception here is an international agreement concluded with
the EU on ‘jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters’([2005] OJ L 299/62).This Agreement extends,de facto,the Brussels
I Regulation to Denmark.
Judicial Powers II 435
The provision constitutes the modern fountain of ‘EU private international
law’.160
It explicitly deals with‘civil’law matters and therefore excludes all public
law, including administrative and criminal law.Article 81 thereby expressly distinguishes
between general civil law in paragraph 2 and the special case of family
law in paragraph 3;and with regard to both,the Union has further distinguished
between the jurisdictional question of ‘mutual recognition and enforcement’, on
the one hand,and the substantive question as to which national law applies (‘conflicts
of laws’), on the other.
This two-times-two division is today reflected in four famous regulations
that constitute the legislative core within this area of European law.These four
Regulations derive their names from two important and beautiful European cities:
Brussels and Rome; with the two ‘Brussels Regulations’ dealing with jurisdiction,
and the two ‘Rome Regulations’ dealing with the substantive question
which national (civil) law applies (see Table 11.1).
The following section concentrates on the general principles governing civil
and commercial law under the Brussels I Regulation.
aa. Dividing Competences between National Courts
The Brussels I Regulation generally deals with‘civil and commercial matters’;161
and its central aim is expressed as follows:
160
The historical evolution of EU private international law is fairly complex. For general
treatments here,see M.Bogdan,Concise Introduction to EU Private International Law (Europa
Law, 2015); and P. Stone, EU Private International Law (Elgar, 2014). Importantly, EU private
international law is not confined to dealing with the enforcement of substantive
European law in national courts. It more generally determines whether a national court
has jurisdiction and which national law applies in a specific case.
161
Certain civil and commercial matters are expressly excluded from the scope of the
Regulation, see Art. 1 (2).The provision principally excludes family law matters (subparas.
a and e), insolvency proceedings (subpara. b), arbitration (subpara. d) and succession
(subpara. f).
2. For the purposes of paragraph 1, the European Parliament and the Council, acting
in accordance with the ordinary legislative procedure, shall adopt measures,
particularly when necessary for the proper functioning of the internal market,
aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments
and of decisions in extrajudicial cases …
(c) the compatibility of the rules applicable in the Member States concerning
conflict of laws and of jurisdiction …
3. Notwithstanding paragraph 2, measures concerning family law with cross-border
implications shall be established by the Council, acting in accordance with a special
legislative procedure. The Council shall act unanimously after consulting the
European Parliament …
Governmental Powers436
In order to achieve this aim, the Regulation lays down a number of (default)
rules.163
Where the parties have not contractually settled on a specific court,
the Regulation holds ‘that jurisdiction is generally based on the defendant’s
domicile’.164
Article 4 of the Regulation confirms that ‘persons domiciled in
a Member State shall, whatever their nationality, be sued in the courts of that
Member States’.165
This general rule means two things. First, it clarifies that it is not ‘nationality’
but ‘domicile’ that is important; and, second, it gives clear preference to the
Table 11.1 EU Private International Law (Selection)
Brussels I
Regulation
Regulation 1215/2012 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (recast)
Brussels II
Regulation
Regulation 2201/2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of
parental responsibility
Rome I
Regulation
Regulation 593/2008 on the law applicable to contractual obligations
Rome II
Regulation
Regulation 864/2007 on the law applicable to non-contractual
obligations
Other
Regulations
Regulation 1259/2010 implementing enhanced cooperation in the area
of the law applicable to divorce and legal separation (Rome III)
Regulation 650/2012 on jurisdiction, applicable law, recognition and
enforcement of decisions and acceptance and enforcement
In the interests of the harmonious administration of justice it is necessary to minimise
the possibility of concurrent proceedings and to ensure that irreconcilable judgments
will not be given in different Member States. There should be a clear and effective
mechanism for resolving cases of lis pendens and related actions, and for obviating
problems flowing from national differences as to the determination of the time when
a case is regarded as pending.162
162
Brussels I Regulation, recital 21.
163
The Brussels I Regulation is – like much private law – only default legislation in that
the private parties can specifically decide to conclude a special contract that determines
which court they would like to give jurisdiction to (ibid., Art. 25). For an academic
treatment of these ‘choice-of-court’ agreements, seeT. Hartley, Choice-of-Court Agreements
under the European and International Instruments (Oxford University Press, 2013).
164
Brussels I Regulation, recital 15.
165
Ibid.,Art. 4.The question of what counts as being ‘domiciled’ in a Member State is generally
left to each Member State (ibid., Art. 62: ‘In order to determine whether a party
is domiciled in the Member State whose courts are seized of the matter, the court shall
apply its internal law’); yet with regard to legal persons,Art. 63 contains a number of EU
specific rules.
Judicial Powers II 437
defendant as opposed to the plaintiff by generally forcing the latter to go to the
courts of the Member State of his opponent.
And yet there are two major exceptions to this rule. For a number of areas,
such as contract and tort claims,166
insurance contracts,167
consumer contracts168
and employment contracts,169
the Union grants a parallel competence to other
national courts.With regard to consumer contacts, for example, the Regulation
states that, if certain conditions are fulfilled,170
the consumer has a choice:
A consumer may bring proceedings against the other party to a contract either in
the courts of the Member State in which that party is domiciled or, regardless of
the domicile of the other party, in the courts for the place where the consumer is
domiciled.171
But more importantly still: for some matters, the Brussels I Regulation designates
a jurisdiction as exclusively competent that is not related to the domicile of
either the defendant or the plaintiff.These heads of‘exclusive jurisdiction’are set
out in Article 24 of the Regulation,172
and whenever they apply, the general or
special jurisdictions discussed above are suspended. For example: with regard to
immovable property, it will always be the national courts in which that property
is located that enjoy exclusive jurisdiction within the Union.
How does the Regulation deal with jurisdictional conflicts where two or
more national courts claim jurisdiction simultaneously? For matters falling
within an exclusive jurisdictional competence, the Regulation unequivocally
states:
166
Ibid., s. 2, esp.Art. 7. 167
Ibid., s. 3 (Arts. 10–16).
168
Ibid., s. 4 (Arts. 17–19). 169
Ibid., s. 5 (Arts. 20–3).
170
The conditions for consumer contracts are set out in Art. 17 of the Regulation, and
the most important condition here is the situation described in Art. 17(1)(c).The consumer’s
‘home’ courts will thus only have (parallel) jurisdiction, where the seller either
has a commercial presence in that State, or where s/he has been specifically ‘directing’
her commercial activities to that State. On the notion of ‘directing’, see Joined Cases
C-585/08 and C-144/09, Pammer v. Reederei Schlüter and Hotel Alpenhof v. Heller [2010]
ECR I-12527.
171
Brussels I Regulation,Art. 18(1).
172
The provision states:‘The following courts of a Member State shall have exclusive jurisdiction,
regardless of the domicile of the parties: (1) in proceedings which have as their
object rights in rem in immovable property or tenancies of immovable property, the
courts of the Member State in which the property is situated … (2) in proceedings
which have as their object the validity of the constitution, the nullity or the dissolution
of companies or other legal persons or associations of natural or legal persons … (3) in
proceedings which have as their object the validity of entries in public registers,the courts
of the Member State in which the register is kept; (4) in proceedings concerned with
the registration or validity of patents, trade marks, designs, or other similar rights required
to be deposited or registered … (5) in proceedings concerned with the enforcement of
judgments, the courts of the Member State in which the judgment has been or is to be
enforced.’
Governmental Powers438
The Regulation here establishes a first-seized-first-jurisdiction rule.Whichever
court is first seized must first determine whether it is competent under the
Brussels I Regulation.Any other – second – court must wait until that first court
has made that determination; and only after the first court has itself rejected its
jurisdiction, may it resume jurisdiction under the Regulation.This first-comefirst-jurisdiction
rule is open to abuse;175
yet the European Court has clarified
that a second-seized court cannot issue anti-suit injunctions to stop a parallel trial
abroad,176
nor can it under any circumstances review the jurisdiction of a court
in another Member State.177
The jurisdictional autonomy of each and every national court has been justified
in Gasser as follows:
173
Ibid.,Art. 27. 174
Ibid.,Art. 29(1) and (3).
175
Where a dispute between two private parties arises, one party might be tempted to start
proceedings, out of the blue, in a Member States that has no link whatsoever to the civil
dispute with the sole aim of delaying the proceedings. Due to the legendary slowness of
the Italian legal system, this strategic move has been called the ‘Italian torpedo’.A party
here commences proceedings in an Italian court which might take years to find that it is
ultimately not competent.
176
Case 159/02, Turner v. Grovit [2004] ECR I-3565, esp. para 28:‘In so far as the conduct
for which the defendant is criticized consists in recourse to the jurisdiction of the court
of another Member State, the judgment made as to the abusive nature of that conduct
implies an assessment of the appropriateness of bringing proceedings before a court of
another Member State.Such an assessment runs counter to the principle of mutual trust[.]’
177
Brussels I Regulation, Art. 45(3): ‘[T]he jurisdiction of the court of origin may not be
reviewed’.
Where a court of a Member State is seised of a claim which is principally concerned
with a matter over which the courts of another Member State have exclusive
jurisdiction by virtue of Article 24, it shall declare of its own motion that it has no
jurisdiction.173
With regard to non-exclusive parallel competences, on the other hand, the
Regulation establishes the following rule (lis pendens):
[W]here proceedings involving the same cause of action and between the same
parties are brought in the courts of different Member States, any court other than
the court first seised shall of its own motion stay its proceedings until such time as
the jurisdiction of the court first seised is established … Where the jurisdiction of the
court first seised is established, any court other than the court first seised shall decline
jurisdiction in favour of that court.174
[T]he Brussels [Regulation] is necessarily based on the trust which the [Member
States] accord to each other’s legal systems and judicial institutions. It is that mutual
trust which has enabled a compulsory system of jurisdiction to be established, which
Judicial Powers II 439
bb. Mutual Recognition of National Judgments
The Brussels I Regulation is a ‘double instrument’. It regulates not only the
jurisdiction of national courts within the European Union but also the recognition
and enforcement of their judgments.179
Indeed: the rationale behind
centrally determining the horizontal division of powers between national
courts has always been to facilitate the mutual recognition and enforcement
of their judgments.The simple rules within the Brussels Regulation here are
these:
178
Case C-116/02, Gasser v. MISAT [2003] ECR I-14694, para. 72.
179
Bogdan, EU Private International Law (n. 160 above), 33.
180
Brussels I Regulation,Art. 36 (1).
181
Ibid.,Art. 39. 182
Ibid.,Art. 52.
183
The various grounds are listed in Art. 45 of the Regulation. For an extensive discussion
here, see Stone, EU Private International Law (n. 160 above), 230–45.
all the courts within the purview of the [Regulation] are required to respect, and as a
corollary the waiver by those States of the right to apply their internal rules on recognition
and enforcement of foreign judgments in favour of a simplified mechanism for
the recognition and enforcement of judgments.178
A judgment given in a Member State shall be recognised in the other Member States
without any special procedure being required.180
And:
A judgment given in a Member State which is enforceable in that Member State shall
be enforceable in the other Member States without any declaration of enforceability
being required.181
A national judgment given in one Member State will thus generally enjoy
the force of res judicata in all other Member States of the Union; and ‘[u]nder no
circumstances may a judgment given in a Member State be reviewed as to its
substance in the Member State addressed’.182
This mutual juridical recognition
is however not absolute. For the Brussels I Regulation recognises a number
of (limited) exceptions – the most important of which are a violation of the
jurisdictional rules of the Brussels Regulation and overriding public policy con-
siderations.183
Yet absent such specific grounds, a judgment given by a French
or German court will be ‘binding’ and ‘enforceable’ in all other Member States.
The mutual recognition of civil law judgments indeed constitutes one of the
cornerstones of the judicial federalism established by the Union. It finds a –
weaker – expression in criminal law to which we must now turn.
Governmental Powers440
b. Cooperation and Mutual Recognition in Criminal Matters
The Union competence(s) with regard to judicial cooperation in criminal matters
are found in Articles 82–6 TFEU.184
The central provision here states:
Judicial cooperation in criminal matters in the Union shall be based on the principle of
mutual recognition of judgments and judicial decisions and shall include the approximation
of the laws and regulations of the Member States in the areas referred to in
paragraph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the ordinary
legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of
all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States …
(d) Facilitate cooperation between judicial or equivalent authorities of the Member
States in relation to proceedings in criminal matters and the enforcement of
decisions.185
The provision deals, among other things, with the jurisdiction of national
courts and the mutual recognition of their judgments in the context of criminal
law.Like in the area of civil law,there may again be a number of situations where
more than one Member State claims jurisdiction for a particular criminal act;
and this is particularly problematic in criminal law because most legal orders
accept the principle that a crime cannot be judged twice (in Latin:ne bis in idem).
The Union has nevertheless not been very successful in removing conflicts
of criminal law jurisdiction.186
It has perhaps been slightly more successful with
regard to the ‘mutual recognition’ of national judgments; yet this success has not
been through Union legislation adopted on the basis of Articles 82–3 TFEU
but – anachronistically – through an international agreement between the
Member States.187
The latter here states:
184
The provisions constitute Ch. 4 (‘Judicial Cooperation in Criminal Matters’) of Title V
(‘Area of Freedom, Security and Justice’) of the TFEU. Importantly, Protocol No. 21 On
the Position of the United Kingdom and Ireland in Respect of the Area of Freedom,
Security and Justice and Protocol No. 22 On the Position of Denmark (see n. 159 above
for both) will of course apply here too.
185
Art. 82 (1) TFEU.
186
For a critical analysis of the EU efforts here, see S. Peers, EU Justice and Home Affairs:
Volume II: EU Criminal Law, Policing, and Civil Law (Oxford University Press, 2016), 228ff.
187
This international agreement is the Schengen Convention Implementing the Schengen
Agreement [2000] OJ L 239/19.
188
Schengen Implementing Convention,Art. 54.
A person whose trial has been finally disposed of in one Contracting Party may not be
prosecuted in another Contracting Party for the same acts provided that, if a penalty
has been imposed, it has been enforced, is actually in the process of being enforced
or can no longer be enforced under the laws of the sentencing Contracting Party.188
Judicial Powers II 441
In interpreting this provision, the European Court has clarified that its main
purpose is ‘that no one is prosecuted on the same facts in several Member States
on account of his having exercised his right to freedom of movement’.189
This
European ne bis in idem principle thereby applies regardless of whether or not
there has been any prior harmonisation of national criminal law;190
and while
the precise contours of the ne bis in idem principle continue to be litigated,191
its
‘constitutional’core is nevertheless clear:a judgment given by one national court
must, in principle, be recognised by all other Member States.
This principle of mutual recognition can also be found in relation to the
preparation and execution of a judgment. And the Union has here adopted its
most controversial criminal law measure:the European ArrestWarrant (EAW).192
The EWA is ‘a judicial decision issued by a Member State with a view to the
arrest and surrender by another Member Sate of a requested person,for the purposes
of conducting a criminal prosecution or executing a custodial sentence or
detention order’.193
The EWA has consequently a pre-trial and post-trial function;and
its controversial heart lies in the idea that a Member State must surrender
any person – even one of its nationals – where that person has been charged
or judged with a crime that may not be punishable in the surrendering State.194
The EWA however allows for a range of mandatory and optional exceptions
that permit non-execution;195
but the Court has held that this list of exceptions
is exhaustive. The Court justifies this result again by reference to the idea of
‘mutual trust’ on which the principle of mutual recognition in general, and the
EAW in particular, is based.196
Conclusion
Functionally,national courts are Union courts;yet the decentralised adjudication
of European law by national courts means that the procedural regime for the
enforcement of European rights is principally left to the Member States.
189
Joined cases C-187/01 and C-385/01, Gözütok and Brügge [2003] ECR I-1345, para. 38.
190
Ibid., para. 32.
191
For an analysis of the past jurisprudence here, see C. Janssens, The Principle of Mutual
Recognition in EU Law (Oxford University Press,2013),132–65.For a recent case,see Case
C-486/14, Kossowski, EU:C:2016:483.
192
Framework Decision 2002/584/JHA on the European Arrest Warrant and the surrender
procedures between Member States (2002) OJ L 190/1. The EWA was adopted prior
to the Lisbon Treaty and it was therefore adopted by means of a legal instrument that
was only known in the former ‘third pillar’ of the pre-Lisbon European Union. For an
academic analysis of the EWA, see E. Herlin-Karnell, ‘From Mutual Trust to the Full
Effectiveness of EU Law: 10Years of the European Arrest Warrant’ (2013) 38 EL Rev. 79.
193
Framework Decision 2002/584 (EAW),Art. 1(1) (emphasis added).
194
The abolition of the requirement of ‘double criminality’ can be found in ibid.,Art. 2(2). It
expands to the 32 most dangerous crimes.
195
Ibid.,Arts. 3–4a.
196
See Joined Cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert C ld raru v.
Generalstaatsanwaltschaft Bremen, EU:C:2016:198, esp. paras. 77–8.
Governmental Powers442
This rule of‘national procedural autonomy’is however qualified by four principles.
First, in the presence of European harmonisation, national courts must of
course apply the procedural arrangements offered by European law. But even
in the absence of European harmonisation, the European legal order has asked
national courts to provide national remedies to prevent or discourage breaches
of European law.The two key constitutional principles judicially developed by
the Court of Justice here are the equivalence and the effectiveness principles.
The former requests national courts to extend existing national remedies to
similar European actions.The latter demands that these national remedies must
not make the enforcement of European law ‘excessively difficult’. Finally, there
is a last limitation: the liability principle.The Francovich doctrine obliges national
courts to provide for damages that compensate for losses resulting from (sufficiently
serious) breaches of European law by a Member State. Courage may be
seen as the horizontal extension of this principle, but the jury on this point is
still out.
What is the relationship between national remedies and the Francovich remedy?
The Court seems to treat the latter as a remedy of last resort.197
We saw a
specific expression of this relation in the Köbler rule that the availability of appeal
procedures under national law precludes State liability for judicial breaches of
European law.However,this will not mean that national and European remedies
do not complement each other. Indeed, the specific procedural regime for the
EU remedy of State liability is governed by national rules.The enforcement of
the Francovich ‘remedy’ in the national courts will thus itself be subject to the
principles of equivalence and effectiveness.198
Let us look at one last point:what is the relationship between Francovich liability
and direct effect? From the early days of this remedy,the Court has been clear
that an individual may have a right to damages even for violations of directly
effective norms of European law.199
Thus, the fact that an action can be brought
197
See Case C-91/92, Faccini Dori v. Recreb [1994] ECR I-3325, para. 27:‘If the result prescribed
by the directive cannot be achieved by way of interpretation, it should also be
borne in mind that, in terms of the judgment in Joined Cases C-6/90 and C-9/90,
Francovich and others v.Italy [1991] ECR I-5357,paragraph 39,[European] law requires the
Member States to make good damage caused to individuals through failure to transpose a
directive, provided that three conditions are fulfilled.’
198
On the Francovich remedy being put into a national procedural context, see Case
C-168/15, Tomášová, para. 38: ‘[W]here the conditions for a State to incur liability are
satisfied, a matter which it is for the national courts to determine, it is on the basis of
national law that the State must make reparation for the consequences of the loss or damage
caused,provided that the conditions laid down by national law in respect of reparation
of loss or damage are not less favourable than those relating to similar domestic claims
(principle of equivalence) and are not so framed as to make it, in practice, impossible or
excessively difficult to obtain reparation (principle of effectiveness).’
199
Joined Cases C-46/93 and C-48/93, Brasserie du Pêcheur, paras. 20 and 22:‘The Court has
consistently held that the right of individuals to rely on the directly effective provisions
of the Treaty before national courts is only a minimum guarantee and is not sufficient in
Judicial Powers II 443
to force a national administration to apply European law is no barrier for the
availability of this secondary remedy.200
This makes profound sense as the application
of European law may only operate prospectively, whereas the compensation
for past misapplications of European law works retrospectively. However,
there can – of course – be liability without direct effect; and the State obligation
to make good any damage caused by a serious breach of European law will often
be the only option for an individual who cannot rely on the – vertical or horizontal
– direct effect of European law.
The final section of this chapter explored to what extent the EU has coordinated
national jurisdictions.The Brussels I Regulation here determines, with
regard to cross-border disputes in civil matters,which national court should have
competence; and once this is done, a judgment rendered by that national court
must in general be recognised and enforced in all other Member States.Within
the context of criminal law, similar principles have been established – yet, as we
shall see below, they have generated a range of human rights issues in the Union
legal order.
FURTHER READING
Books
M. Bogdan, Concise Introduction to EU Private International Law (Europa Law, 2015)
M. Claes, The National Courts’ Mandate in the European Constitution (Hart, 2005)
M. Dougan, National Remedies before the Court of Justice: Issues of Harmonisation and
Differentiation (Hart, 2004),
C. Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press,
2013)
C. Kilpatrick et al. (eds.), The Future of Remedies in Europe (Hart, 2000)
K. Lenaerts, I. Maselis and K. Gutman, EU Procedural Law (Oxford University Press,
2014)
V. Mitsilegas, EU Criminal Law After Lisbon: Rights and the Transformation of Justice in
Europe (Hart, 2016)
S. Peers, EU Justice and Home Affairs Law – Volume II: EU Criminal Law, Policing, and
Civil Law (Oxford University Press, 2016)
A. M. Slaughter, A. Stone Sweet and J. Weiler, The European Courts and National
Courts: Doctrine and Jurisprudence: Legal Change in its Social Context (Hart, 1998)
P. Stone, EU Private International Law (Elgar 2016)
E.Storskrubb,Civil Procedure and EU Law:A PolicyArea Uncovered (Oxford University
Press, 2008)
itself to ensure the full and complete implementation of the Treaty … It is all the more
so in the event of an infringement of a right directly conferred by a [European] provision
upon which individuals are entitled to rely before the national courts. In that event the
right to reparation is the necessary corollary of the direct effect of the [European] provisions
whose breach caused the damage sustained.’
200
See also Case C-150/99, Sweden v. Stockhold Lindöpark [2001] ECR I-493, para. 35.
Governmental Powers444
Articles (and Chapters)
A. Arnull, ‘The Principle of Effective Judicial Protection in EU Law: An Unruly
Horse?’ (2011) 36 EL Rev. 51
B. Beutler, ‘State Liability for Breaches of Community Law by National Courts:
Is the Requirement of a Manifest Infringement of the Applicable Law an
Insurmountable Obstacle?’ [2009] 46 CML Rev. 773
J. Convery,‘State Liability in the United Kingdom after Brasserie du Pêcheur [1997]
34 CML Rev. 603
M. Dougan,‘TheVicissitudes of Life at the Coalface: Remedies and Procedures for
Enforcing Union Law before the National Courts’, in P. Craig and G. de Búrca,
The Evolution of EU Law (Oxford University Press, 2011), 407
W. van Gerven,‘Of Rights, Remedies and Procedures’ (2000) 37 CML Rev. 501
B.Hess,The Brussels I Regulation:Recent Case Law of the Court of Justice and the
Commission’s Proposed Recast, (2012) 49 CML Rev. 1075
C. N. Kakouris, ‘Do the Member States Possess Judicial Procedural “Autonomy”?’
(1997) 34 CML Rev. 1389
J. Komarek, ‘Federal Elements in the Community Judicial System: Building
Coherence in the Community Legal System’ (2005) 42 CML Rev. 9
R. Lauwaars, ‘The Application of Community Law by National Courts ex officio’
(2007–2008) 31 Fordham International Law Journal 1161
S. Prechal, ‘Community Law in National Courts: The Lessons from Van Schijndel’
(1998) 35 CML Rev. 681
N. Reich, ‘The “Courage” Doctrine: Encouraging or Discouraging Compensation
for Antitrust Injuries?’ (2005) 42 CML Rev. 35
J. Steiner, ‘From Direct Effect to Francovich: Shifting Means of Enforcement of
Community Law’ (1993) 18 EL Rev. 3
F. G.Wilman,‘The End of the Absence? The growing Body of EU Legislation on
Private Enforcement and the Main Remedies It provides for’ (2016) 53 CML
Rev. 887
Cases on the Webpage
Case 26/62, Van Gend en Loos; Case 33/76, Rewe; Case 106/77, Simmenthal II;
Case 14/83, Von Colson; Case 177/88, Dekker; Case C-213/89, Factortame; Joined
Cases C-6 and 9/90, Francovich; Case C-271/91, Marshall II; Case C-338/91,
Steenhorst-Neerings; Joined Cases C-46 and 48/93; Brasserie du Pêcheur; Case
C-312/93, Peterbroeck; Joined Cases C-430–1/93, Van Schijndel; Case C-5/94,
Hedley Lomas; Case C-231/96, Edis; Case C-326/96, Levez; Case C-78/98, Preston;
Case C-453/99, Courage; Case C-118/00, Larsy; Case C-224/01, Köbler; Case
C-116/02, Gasser; Joined Cases C-295–8/04, Manfredi; Joined Cases C-392 and
422/04, i-22 Germany & Arcor v. Germany; Case C-222/05, Van der Weerd; Case
C-432/05, Unibet
12
Judicial Powers III
EU Fundamental Rights
Contents
Introduction 446
1. The ‘Unwritten’ Bill of Rights: Human Rights as ‘General Principles’ 447
a. The Birth of EU Fundamental Rights 448
aa. The European Standard – An ‘Autonomous’ Standard 450
bb. Limitations, and ‘Limitations on Limitations’ 453
b. United Nations Law: External Limits to European Human Rights? 455
2. The ‘Written’ Bill of Rights:The Charter of Fundamental Rights 458
a. The Charter: Structure and Content 458
aa. (Hard) Rights and (Soft) Principles 460
bb. Limitations, and ‘Limitations on Limitations’ 461
b. Relations with the European Treaties (and the European Convention) 465
aa. Harmonious Relations with the European Treaties 465
bb. Harmonious Relations with the European Convention 466
3. The ‘External’ Bill of Rights:The European Convention on Human Rights 467
a. The European Convention Standard for Union Acts 468
aa. Before Accession: (Limited) Indirect Review 468
bb. After Accession: (Full) Direct Review 471
b. Union Accession to the European Convention: Preconditions 472
aa. Union Accession I: Constitutional Preconditions 473
bb. Union Accession II: Procedural Conditions 475
4. The ‘Incorporation Doctrine’: EU Fundamental Rights and National Law 476
a. Incorporation and General Principles: Implementation and Derogation 476
b. Incorporation and the Charter of Fundamental Rights 479
aa. General Rules for All Member States 479
bb. Special Rules for Poland and the United Kingdom 483
c. Incorporation and the European Convention on Human Rights? 486
d. Excursus: Human Rights and Private Party Actions 486
Conclusion 487
Further Reading 488
Governmental Powers446
Introduction
The protection of human rights is a central task of many judiciaries.1
Judicial
review in light of fundamental human rights may here be limited to the review
of the executive;2
yet in its expansive form, it includes the judicial review of
legislative acts.3
The European Union follows this second tradition.Fundamental
rights set substantive – judicial – limits to all governmental powers and processes
within the Union.They indeed constitute one of the most popular grounds of
judicial review in actions challenging the validity of European Union law.
What are the sources of human rights in the Union legal order? Despite the
absence of a ‘bill of rights’ in the original Treaties,4
three sources for EU fundamental
rights were subsequently developed.The European Court first began
distilling fundamental rights from the constitutional traditions of the Member
States.This unwritten bill of rights was inspired and informed by a second bill of
rights: the European Convention on Human Rights.This external bill of rights
was subsequently matched by a – third – written bill of rights specifically drafted
for the European Union: the EU Charter of Fundamental Rights.
These three sources of EU fundamental rights are now expressly referred to –
in reverse order – in Article 6 of the Treaty on European Union.The provision
reads:
1
On human rights as constitutional rights,seeA.Sajó,Limiting Government (Central European
University Press, 1999), ch. 8; and on the role of the judiciary in this context, see M.
Cappelletti, Judicial Review in the ContemporaryWorld (Bobbs-Merrill, 1971).
2
For the classic doctrine of parliamentary sovereignty in the United Kingdom, see A. V.
Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982).
3
On the idea of human rights as‘outside’majoritarian (democratic) politics,see Sajó,Limiting
Government (n. 1 above), ch. 2, 5ff.
4
P. Pescatore,‘Les Droits de l’homme et l’intégration européenne’ (1968) 4 Cahiers du droit
européen 629.
1. The Union recognises the rights, freedoms and principles set out in the Charter
of Fundamental Rights of the European Union of 7 December 2000, as adopted
at Strasbourg, on 12 December 2007, which shall have the same legal value as
the Treaties …
2. The Union shall accede to the European Convention for the Protection of Human
Rights and Fundamental Freedoms. Such accession shall not affect the Union’s
competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the
Protection of Human Rights and Fundamental Freedoms and as they result from
the constitutional traditions common to the Member States, shall constitute general
principles of the Union’s law.
This chapter investigates each of the Union’s three bills of rights and the
constitutional principles that govern them. Section 1 starts with the discovery
of an ‘unwritten’ bill of rights in the form of general principles of European
Judicial Powers III 447
law. Section 2 then moves to an analysis of the Union’s ‘written’ bill of rights:
the EU Charter of Fundamental Rights, which was adopted to codify existing
human rights in the Union legal order. Section 3 investigates the formal
relationship between the Union and the European Convention on Human
Rights. Finally, section 4 explores the relationship between all three bills of
rights and the Member States. It will be seen that each of the three Union
bills applies, at least to some extent, also to the Member States. National courts
may thus be obliged to review the legality of national law also in light of EU
fundamental rights.
1. The ‘Unwritten’ Bill of Rights: Human Rights as ‘General
Principles’
Neither the 1951 ParisTreaty nor the 1957 RomeTreaty contained any express
references to human rights.5
The silence of the former could be explained by its
limited scope.The silence of the latter, by contrast, could have its origin in the
cautious climate following the failure of the ‘European Political Community’.6
With political union having failed, the ‘grander’ project of a human rights bill
was replaced by the ‘smaller’ project of economic integration.7
Be that as it may, the European Court would – within the first two dec-
ades – develop an (unwritten) bill of rights for the European Union.8
These
fundamental rights would be European rights, that is: rights that were independent
from national constitutions.The discovery of human rights as general
principles of European law will be discussed first. Thereafter, this section
discusses possible structural limits to EU human rights in the form of international
obligations flowing from the United Nations Charter.
5
For speculations on the historical reasons for this absence, see P. Pescatore, ‘The Context
and Significance of Fundamental Rights in the Law of the European Communities’ (1981)
2 Human Rights Journal 295. For a new look at the historical material, see G. de Búrca,‘The
Evolution of EU Human Rights Law’, in P. Craig and G. de Búrca (eds.), The Evolution of
EU Law (Oxford University Press, 2011), 465.
6
On the European Political Community, see Chapter 1, section 1(b).This grand project had
asked the (proposed) Community ‘to contribute towards the protection of human rights
and fundamental freedoms in the Member States’ (Art. 2), and would have integrated the
European Convention on Human Rights into the Community legal order (Art. 3).
7
Pescatore,‘Context and Significance’ (n. 5 above), 296.
8
The judicial motifs of the European Court in developing human rights are controversially
discussed in the literature. It seems accepted that the Court discovered human rights as
general principles – at least partly – in defence to national Supreme Courts challenging the
absolute supremacy of European law (see Chapter 4, section 2).Apart from this ‘defensive’
use, the Court has been accused of an ‘offensive use’ in the sense of ‘employ[ing] fundamental
rights instrumentally’ by ‘clearly subordinat[ing] human rights to the end of closer
economic integration in the [Union]’ (see J. Coppel and A. O’Neill,‘The European Court
of Justice:Taking Rights Seriously?’ (1992) 29 CML Rev. 669, 670 and 692).This ‘offensive’
thesis has – rightly – been refuted (see J. H. H.Weiler and N. Lockhart,‘“Taking Rights
Seriously” Seriously: The European Court and Its Fundamental Rights Jurisprudence’
(1995) 32 CML Rev. 51 (pt. I) and 579 (pt. II)).
Governmental Powers448
a. The Birth of EU Fundamental Rights
The birth of EU fundamental rights did not happen overnight.The Court had
been invited – as long ago as 1958 – to judicially review a Union act in light of
fundamental rights.
In Stork,9
the applicant had challenged a European decision on the grounds
that the Commission had infringed German fundamental rights. In the absence
of a European bill of rights, this claim drew on the so-called ‘mortgage theory’.
According to this theory, the powers conferred on the European Union were
tied to a human rights ‘mortgage’. National fundamental rights would bind the
European Union,since the Member States could not have created an organisation
with more powers than themselves.10
When they thus transferred powers to the
Union, the very transfer was subject to the respective ‘constitutional tradition’ of
each Member State.This argument was however – correctly11
– rejected by the
Court.The task of the Union institutions was to apply European laws ‘without
regard for their validity under national law’.12
National fundamental rights could
thus be no direct source of EU fundamental rights.
This position of the European Union towards national fundamental rights
indeed never changed. However, the Court’s view has significantly evolved with
regard to the existence of implied European fundamental rights.Having originally
found that European law did‘not contain any general principle,express or otherwise,
guaranteeing the maintenance of vested rights’,13
the Court subsequently discovered‘fundamental
human rights enshrined in the general principles of [European]
law’.14
This new position was spelled out in Internationale Handelsgesellschaft.15
The
Court here – again – rejected the applicability of national fundamental rights to
European law, as this would challenge the supremacy of European over national
law; yet the judgment now also confirmed the existence of an ‘analogous guarantee’
in European Union law.To quote the famous passage in full:
9
Case 1/58, Stork & Cie v. High Authority of the European Coal and Steel Community [1958]
ECR (English Special Edition) 17.
10
As the Latin legal proverb makes clear:‘Nemo dat quod non habet’.
11
For a criticism of the‘mortgage theory’,see H. G.Schermers,‘The European Communities
Bound by Fundamental Rights’ (1990) 27 CML Rev. 249, 251.
12
Case 1/58, Stork v. High Authority, 26: ‘Under Article 8 of the [ECSC] Treaty the
[Commission] is only required to apply Community law. It is not competent to apply the
national law of the Member States. Similarly, under Article 31 the Court is only required
to ensure that in the interpretation and application of the Treaty, and of rules laid down
for implementation thereof, the law is observed. It is not normally required to rule on
provisions of national law. Consequently, the [Commission] is not empowered to examine
a ground of complaint which maintains that, when it adopted its decision, it infringed
principles of German constitutional law (in particular Articles 2 and 12 of the Basic Law).’
13
Joined Cases 36–8/59 and 40/59, Geitling Ruhrkohlen-Verkaufsgesellschaft mbH, Mausegatt
Ruhrkohlen-Verkaufsgesellschaft mbH and I. Nold KG v. High Authority of the European Coal
and Steel Community [1959] ECR (English Special Edition) 423, 439 (emphasis added).
14
Case 29/69, Stauder v. City of Ulm [1969] ECR 419, para. 7.
15
Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- undVorratsstelle für Getreide und
Futtermittel [1979] ECR 1125.
Judicial Powers III 449
From this moment, fundamental rights were seen as an integral part of the
general principles of European Union law.They were ‘inspired by the constitutional
traditions common to the Member States’, with the latter representing an
indirect source for the Union’s fundamental rights.
But what was the exact nature of this indirect relationship between national
human rights and European human rights? And how would the former influence
the latter? A constitutional clarification was offered in Nold.17
Drawing on
its previous jurisprudence, the Court held:
[T]he 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 [Union] law and without the legal basis of the
[Union] itself being called in question. Therefore the validity of a [Union] 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. However, an examination
should be made as to whether or not any analogous guarantee inherent in [Union]
law has been disregarded. In fact, respect for fundamental rights forms an integral
part of the general principles of law protected by the Court of Justice. The
protection of such rights, whilst inspired by the constitutional traditions common
to the Member States, must be ensured within the framework of the structure and
objectives of the [Union].16
[F]undamental rights form an integral part of the general principles of law, the
observance of which it ensures. In safeguarding these rights, the Court is bound to
draw inspiration from constitutional traditions common to the Member States, and it
cannot therefore uphold measures which are incompatible with fundamental rights
recognised and protected by the constitutions of those States. Similarly, international
treaties for the protection of human rights on which the Member States have
collaborated or of which they are signatories, can supply guidelines which should be
followed within the framework of [European] law.18
16
Ibid., paras. 3–4 (emphasis added).
17
Case 4/73, Nold v. Commission [1974] ECR 491.
18
Ibid., para. 13 (emphasis added).
In searching for fundamental rights inside the general principles of European
law, the Court would thus draw ‘inspiration’ from the common constitutional
traditions of the Member States.One – ingenious – way of identifying an‘agreement’
between the various national constitutional traditions was to use international
agreements of the Member States. And one such international agreement
in place then was the European Convention on Human Rights. Having been
Governmental Powers450
ratified by all Member States and dealing specially with human rights,19
the
Convention would soon assume a ‘particular significance’ in identifying fundamental
rights for the European Union.20
And yet, none of this conclusively
characterised the legal relationship between European human rights, national
human rights and the European Convention on Human Rights.
Let us therefore look at the question of the Union human rights standard first,
before analysing the judicial doctrines governing limits to EU human rights.
aa. The European Standard – An ‘Autonomous’ Standard
Human rights express the fundamental values of a society. Each society may
wish to protect distinct values and give them a distinct level of protection.21
Not all societies may thus choose to protect a constitutional ‘right to work’,22
while most liberal societies will protect ‘liberty’; yet, the level at which liberty is
protected might vary.23
Which fundamental rights exist in the European Union, and what is their
level of protection? From the very beginning, the Court of Justice felt not completely
free to invent an unwritten bill of rights. Instead, and in the words of
the famous Nold passage, the Court was ‘bound to draw inspiration from constitutional
traditions common to the Member States’.24
But how binding would
that inspiration be? Could the Court discover human rights that not all Member
States recognise as a national human right? And would the Court consider itself
under an obligation to use a particular standard for a human right?
19
When the E(E)C Treaty entered into force on 1 January 1958, five of its Member States
were already parties to the European Convention for the Protection of Human Rights and
Fundamental Freedoms, signed in Rome on 4 November 1950. Ever since France joined
the Convention system in 1974, all EU Member States have also been members of the
European Convention legal order. For an early reference to the Convention in the jurisprudence
of the Court, see Case 36/75, Rutili v. Ministre de l’intérieur [1975] ECR 1219,
para. 32.
20
See Joined Cases 46/87 and 227/88, Höchst v. Commission [1989] ECR 2859, para. 13:
‘The Court has consistently held that fundamental rights are an integral part of the general
principles of law the observance of which the Court ensures, in accordance with
constitutional traditions common to the Member States, and the international treaties
on which the Member States have collaborated or of which they are signatories. The
European Convention for the Protection of Human Rights and Fundamental Freedoms
of 4 November 1950 (hereinafter referred to as “the European Convention on Human
Rights”) is of particular significance in that regard.’
21
‘Constitutions are not mere copies of a universalist ideal, they also reflect the idiosyncratic
choices and preferences of the constituents and are the highest legal expression of the
country’s value system.’ See B. de Witte, ‘Community Law and National Constitutional
Values’ (1991–2) 2 Legal Issues of Economic Integration 1 at 7.
22
Art. 4 of the Italian Constitution states:‘The Republic recognises the right of all citizens
to work and promotes those conditions which render this right effective.’
23
To illustrate this point with a famous joke: ‘In Germany everything is forbidden, unless
something is specifically allowed, whereas in Britain everything which is not specifically
forbidden, is allowed.’ (The joke goes on to claim that:‘In France everything is allowed,
even if it is forbidden; and in Italy everything is allowed, especially when it is forbidden.’)
24
Case 4/73, Nold, para. 13 (emphasis added).
Judicial Powers III 451
The relationship between the Union standard and the various national standards
is not an easy one.Would the obligation to draw inspiration from the constitutional
traditions common to the States not imply a common minimum standard?
Serious practical problems follow from this view. For, if the European Union
consistently adopted the lowest common human rights denominator to assess
the legality of its acts, this would inevitably lead to charges that the European
Court refuses to take human rights seriously.25
Should the Union thus favour
the maximum standard among the Member States,26
as ‘the most liberal interpretation
must prevail’?27
This time, there are serious theoretical problems with this
view. For the maximalist approach assumes that courts always balance private
rights against public interests. But this is not necessarily the case;28
and, in any
event, the maximum standard is subject to a ‘communitarian critique’ that insists
that the public interest should also be taken seriously.29
The Court has consequently
rejected both approaches.
What about the European Convention on Human Rights (ECHR) as a –
common – Union standard? What indeed is the status of the Convention in
the Union legal order? The relationship between the European Union and the
European Convention has remained ambivalent.The Court of Justice has not
found the ECHR to be formally binding on the Union;30
and it has never considered
itself materially bound by the interpretation given to the Convention
by the European Court of Human Rights. This interpretative freedom has
created  the possibility of a distinct Union standard for fundamental rights;
yet it equally entails the danger of diverging interpretations of the European
Convention in Strasbourg and Luxembourg.31
25
For an early (implicit) rejection of the minimalist approach, see Case 44/79, Hauer v. Land
Rheinland-Pfalz [1979] ECR 3727, para. 32 (emphasis added) – suggesting that a fundamental
right only needs to be protected in ‘several Member States’.
26
In favour of a maximalist approach,see L.Besselink,‘Entrapped by the Maximum Standard:
On Fundamental Rights, Pluralism and Subsidiarity in the European Union’ (1998) 35
CML Rev. 629.
27
This ‘Dworkinian’ language comes from Case 29/69, Stauder, para. 4.
28
The Court of Justice was faced with such a right–right conflict in Case C-159/90, Society
for the Protection of Unborn Children Ireland Ltd v. Stephen Grogan and others [1991] ECR
I-4685, but (in)famously refused to decide the case for lack of jurisdiction.
29
J.Weiler,‘Fundamental Rights and Fundamental Boundaries: On Standards andValues in
the Protection of Human Rights’, in N. Neuwahl and A. Rosas (eds.), The European Union
and Human Rights (Brill, 1995), 51 at 61:‘If the ECJ were to adopt a maximalist approach
this would simply mean that for the [Union] in each and every area the balance would be
most restrictive on the public and general interest.A maximalist approach to human rights
would result in a minimalist approach to [Union] government.’
30
See Case 4/73,Nold.On the idea that Member State treaties are binding on the Union,see
Chapter 8, section 3(b/dd).
31
See Joined Cases 46/87 and 227/88, Höchst AG v. Commission [1989] ECR 2859. For
an excellent analysis, see R. Lawson,‘Confusion and Conflict? Diverging Interpretations
of the European Convention on Human Rights in Strasbourg and Luxembourg’, in R.
Lawson and M. de Blois (eds.), The Dynamics of the Protection of Human Rights in Europe, 3
vols. (Martinus Nijhoff, 1994), III, 219 esp. 234–50.
Governmental Powers452
Has the Lisbon Treaty changed this ambivalent relationship overnight? Today,
there are strong textual reasons for claiming that the European Convention is
materially binding on the Union.32
For according to the (new) Article 6(3)TEU,
fundamental rights as guaranteed by the Convention ‘shall constitute general principles
of the Union’s law’.33
Will this formulation not mean that all Convention
rights are general principles of Union law? If so, the Convention standard would
henceforth provide a direct standard for the Union (see Figure 12.1). But if this
route were chosen,the Convention standard would – presumably – only provide
a minimum standard for the Union’s general principles.34
In conclusion, the Union standard for the protection of fundamental rights is
an autonomous standard.While drawing inspiration from the constitutional traditions
common to the Member States and the European Convention on Human
Rights,the Court of Justice has – so far – not considered itself directly bound by
a particular national or international standard.The Court has therefore remained
free to distil and protect what it sees as the shared values among the majority of
people(s) within the Union and thereby assisted – dialectically – in the establishment
of a shared identity for the people(s) of Europe.35
32
In Case C-617/10, Åklagaren v. Fransson EU: C: 2013: 105, the Court has however confirmed
that the ECHR would – even after Lisbon – not be formally (!) binding on the
Union (ibid., para. 44): ‘[I]t is to be remembered that whilst, as Article 6(3) TEU confirms,
fundamental rights recognised by the ECHR constitute general principles of the
European Union’s law and whilst Article 52(3) of the Charter requires rights contained in
the Charter which correspond to rights guaranteed by the ECHR to be given the same
meaning and scope as those laid down by the ECHR,the latter does not constitute,as long
as the European Union has not acceded to it, a legal instrument which has been formally
incorporated into European Union law.’
33
Art. 6(3) TEU (emphasis added).
34
This is the solution that appears to have been chosen for the Charter, see section 2 below.
35
T.Tridimas,‘Judicial Federalism and the European Court of Justice’, in J. Fedtke and B. S.
Markesinis (eds.), Patterns of Federalism and Regionalism: Lessons for the UK (Hart, 2006),
149 at 150 – referring to the contribution of the judicial process ‘to the emergence of a
European demos’.
Figure 12.1 Inspiration Theory versus Incorporation Theory
ECHR
MS MSMS
(Material) IncorporationInspiration
EU General PrinciplesEU General Principles
ECHR
Judicial Powers III 453
bb. Limitations, and ‘Limitations on Limitations’
Within the European constitutional tradition, some rights are absolute rights.
They cannot – under any circumstances – be legitimately limited.36
However,
most fundamental rights are relative rights that may be limited in accordance
with a public interest. Private property may thus be taxed, and individual freedom
be restricted – if such actions are justified by the common good.
Has the European legal order recognised such limits to human rights? From
the very beginning, the Court indeed clarified that human rights are ‘far from
constituting unfettered prerogatives’,37
and that they may thus be subject‘to limitations
laid down in accordance with the public interest’.38
Nonetheless, liberal
societies would cease to be liberal if they permitted unlimited limitations to
human rights. Many legal orders therefore recognise limitations on public interest
limitations.These ‘limitations on limitations’ to fundamental rights restrictions
can be relative or absolute in nature (see Figure 12.2).
According to the principle of proportionality, each restriction of a fundamental
right must always be ‘proportionate’ in relation to the public interest
pursued.39
The principle of proportionality is thus a relative principle. It balances
interests: the greater the public interest protected, the greater the right restrictions
permitted. In order to limit this relativist logic, a second principle may
come into play.
According to the ‘essential core’ doctrine any limitation of human rights –
even proportionate ones – must never undermine the ‘very substance’ of a
Figure 12.2 Rights Limitations: Relative and Absolute
Fundamental Right
Essential
Core
Public Interest
Limitations
36
The European Court of Justice followed this tradition and recognised the existence of
absolute rights in Case C-112/00, Schmidberger [2003] ECR I-5659, para. 80: ‘the right
to life or the prohibition of torture and inhuman or degrading treatment or punishment,
which admit of no restriction’.
37
Case 4/73, Nold v. Commission, para. 14.
38
Ibid.
39
Case 44/79, Hauer, para. 23.
Governmental Powers454
fundamental right. This sets an absolute limit to all governmental actions by
identifying an ‘untouchable’ core within a fundamental right.Yet while the
principle of proportionality is almost omnipresent in the jurisprudence of the
Court,40
the existence of an ‘essential core’ doctrine is still unclear.41
The Court appears to have finally confirmed the existence of an ‘essential
core’ doctrine in Zambrano.42
Two Columbian parents challenged the rejection
of their Belgian residency permits on the grounds that their children
had been born in Belgium and thereby assumed Belgian and thus European
citizenship.43
And since minor children would inevitably have to follow their
parents, the question arose whether the latter’s deportation would violate their
children’s fundamental status as European citizens.The Court here held that
the Belgian measures violated the Treaties, as they would ‘have the effect of
depriving citizens of the Union of the genuine enjoyment of the substance of
the rights conferred by virtue of their status of citizens of the Union’.44
The
recognition of an untouchable ‘substance’ of a fundamental right here functioned
like the essential core doctrine. In subsequent jurisprudence, the Court
has however clarified that it will give a narrow construction of what constitutes
the ‘substance’ of Union citizenship. The expulsion of a third-country
husband will thus not as such constitute an unjustifiable limitation on the right
to family life, where it does not force the Union citizen herself to leave the
Union territory.45
40
On the proportionality principle, see also Chapter 10, section 1(b/bb).
41
The European Courts appear to implicitly accept the doctrine; see Case 4/73, Nold, 14:
‘Within the [Union] legal order it likewise seems legitimate that these rights should, of
necessity, be subject to certain limits justified by the overall objectives pursued by the
[Union], on condition that the substance of these rights is left untouched’.
42
Case C-34/09, Zambrano v. Office national de l’emploi [2011] ECR I-1177. Admittedly,
there are many questions that this – excessively – short case raises (see ‘Editorial: Seven
Questions for Seven Paragraphs’ (2011) EL Rev. 161).
43
According to Art. 20(1)TFEU:‘Citizenship of the Union is hereby established. Every person
holding the nationality of a Member State shall be a citizen of the Union. Citizenship
of the Union shall be additional to and not replace national citizenship.’
44
Case C-34/09,Zambrano,para.42 (emphasis added);and see also para.44:‘In those circumstances,
those citizens of the Union would, as a result, be unable to exercise the substance
of the rights conferred on them by virtue of their status as citizens of the Union.’ See also
Case C-86/12, Alokpa & Moudoulou v. Ministre du Travail, de l’Emploi et de l’Immigration,
EU:C:2013:645.
45
See Case C-434/09, McCarthy v. Secretary of State for the Home Department [2011] ECR
I-3375;Case C-256/11,Dereci v.Bundesministerium für Inneres [2011] ECR I-11315.For an
analysis of these cases,see S.Adam and P.van Elsuwege,‘Citizenship and the Federal Balance
between the European Union and Its Member States: Comment on Dereci’ (2012) 37 EL
Rev. 176. For more recent case law, see Case C-165/14, Rendón Marín v. Administración del
Estado, EU:C:2016:675; Case C-304/14, Secretary of State for the Home Department v. CS,
EU:C:2016:674.The last judgment is especially problematic, as it seems to suggest that the
essential core of a right can somehow be limited if that limitation is proportionate (ibid.,
para. 50).
Judicial Powers III 455
b. United Nations Law: External Limits to European Human Rights?
The European legal order is a constitutional order based on the rule of law.46
This implies that an individual, where legitimately concerned,47
must be
able to challenge the legality of a European act on the basis that his human
rights have been violated. Should there be exceptions to this rule, especially
in the context of foreign affairs? This question is controversially debated in
comparative constitutionalism; and it has, in the context of the European
Union, received much attention in a special form: will European fundamental
rights be limited by international obligations flowing from the United Nations
Charter?
The classic answer to this question was offered by Bosphorus.48
The case dealt
with a European regulation implementing the United Nations embargo against
the Federal Republic of Yugoslavia.49
Protesting that its fundamental right to
property was violated, the plaintiff judicially challenged the European act; and
the Court had no qualms in judicially reviewing the European legislation – even
if a lower review standard was applied.50
The constitutional message behind the
classic approach was clear:where the Member States decided to fulfil their international
obligations under the United Nations qua European law, they would
have to comply with the constitutional principles of the Union legal order and,
in particular: European human rights.
This classic approach was however challenged by the General Court in
2005 by Kadi.51
The applicant was a presumed Taliban terrorist, whose financial
assets had been frozen as a result of European legislation that reproduced
UN Security Council Resolutions.52
Kadi claimed that his fundamental
46
Case 294/83, Parti Écologiste ‘LesVerts’ v. European Parliament [1986] ECR 1339.
47
On the judicial standing of private parties in the Union legal order,see Chapter 10,section
1(c).
48
Case C-84/95, Bosphorus HavaYollariTurizm veTicaret AS v. Minister forTransport, Energy and
Communications and others [1996] ECR I-3953.
49
Council Regulation 990/93 concerning trade between the European Economic Community
and the Federal Republic of Yugoslavia (Serbia and Montenegro) [1993] OJ L 102, 14) was
based on UN Security Council Resolution 820 (1993).
50
For a critique of the standard of review, see I. Canor, ‘“Can Two Walk Together, Except
They Be Agreed?”The Relationship between International Law and European Law:The
Incorporation of United Nations Sanctions againstYugoslavia into European Community
Law through the Perspective of the European Court of Justice’ (1998) 35 CML Rev.
137–87.
51
Case T-315/01, Kadi v. Council and Commission [2005] ECR II-3649.
52
The legal challenge principally concerned Council Regulation 881/2002 imposing certain
specific restrictive measures directed against certain persons and entities associated
with Usama bin Laden, the Al-Qaida network and the Taliban, and repealing Regulation
467/2001 [2002] OJ L 139/9.The Regulation aimed to implement UN Security Council
Resolution 1390 (2002) laying down the measures to be directed against Usama bin Laden,
members of theAl-Qaida network and theTaliban and other associated individuals,groups,
undertakings and entities.
Governmental Powers456
rights of due process and property had been violated. The Union organs
intervened in the proceedings and argued – to the surprise of many – that ‘the
Charter of the United Nations prevail[s] over every other obligation of international,
[European] or domestic law’ to the effect that European human rights should
be inoperative.53
To the even greater surprise – if not shock – of European constitutional
scholars,54
the General Court accepted this argument. How did the Court come
to this conclusion? It had recourse to a version of the ‘succession doctrine’,
according to which the Union may be bound by the international obligations of
its Member States.55
While this conclusion was in itself highly controversial, the
dangerous part of the judgment related to the consequences of that conclusion.
For the General Court recognised ‘structural limits, imposed by general international
law’ on the judicial review powers of the European Court.56
In the words
of the Court:
Any review of the internal lawfulness of the contested regulation, especially having
regard to the provisions or general principles of [European] law relating to
the protection of fundamental rights, would therefore imply that the Court is to
consider, indirectly, the lawfulness of those [United Nations] resolutions. In that
hypothetical situation, in fact, the origin of the illegality alleged by the applicant
would have to be sought, not in the adoption of the contested regulation but in
the resolutions of the Security Council which imposed the sanctions. In particular,
if the Court were to annul the contested regulation, as the applicant claims
it should, although that regulation seems to be imposed by international law,
on the ground that that act infringes his fundamental rights which are protected
by the [Union] legal order, such annulment would indirectly mean that the resolutions
of the Security Council concerned themselves infringe those fundamental
rights.57
The General Court thus declined jurisdiction to directly review European
legislation because it would entail an indirect review of the United Nations resolutions.
The justification for this self-abdication was that United Nations law was binding
on all Union institutions, including the European Courts.
53
Case T-315/01, Kadi, paras. 156 and 177 (emphasis added).
54
P. Eeckhout, Does Europe’s Constitution Stop at the Water’s Edge: Law and Policy in the
EU’s External Relations (Europa Law, 2005); and R. Schütze, ‘On “Middle Ground”:
The European Community and Public International Law’, EUI Working Paper
2007/13.
55
Case T-315/01, Kadi, paras. 193ff. On the doctrine, see Chapter 8, section 3(b/dd).
56
Case T-315/01, Kadi, para. 212.
57
Ibid., paras. 215–16 (references omitted).
Judicial Powers III 457
From a constitutional perspective, this reasoning was prisoner to a number of
serious mistakes.58
And in its appeal judgment,59
the Court of Justice remedied
these constitutional blunders and safely returned to the traditional Bosphorus
approach.The Court held:
[T]he obligations imposed by an international agreement cannot have the effect of
prejudicing the constitutional principles of the [European Treaties], which include
the principle that all [Union] acts must respect fundamental rights, that respect
constituting a condition of their lawfulness which it is for the Court to review
in the framework of the complete system of legal remedies established by the
Treat[ies].60
The United Nations Charter, while having ‘special importance’ within the
European legal order,61
would thus not be different from other international
agreements.62
Like ‘ordinary’ international agreements, the United Nations
Charter might – if materially binding – have primacy over European legislation
but ‘[t]hat primacy at the level of [European] law would not, however, extend to
primary law, in particular to the general principles of which fundamental rights
form part’.63
European human rights would thus not find an external structural
limit in the international obligations stemming from the United Nations.64
The
Union was firmly based on the rule of law,and this meant that all European legislation
– regardless of its ‘domestic’ or international origin – would be limited
by the respect for fundamental human rights.
58
First, even if one assumes that the Union succeeded the Member States and was thus
bound by United Nations law, the hierarchical status of international agreements is below
the European Treaties. It would thus be European human rights that limit international
agreements – not the other way around.The Court’s position was equally based on a
second mistake: the General Court believed the United Nations Charter prevails over
every international and domestic obligation (ibid., para. 181). But this is simply wrong
with regard to the ‘domestic law’ part.The United Nations has never claimed ‘supremacy’
within domestic legal orders, and after the constitutionalisation of the European
Union legal order, the latter now constitutes such a ‘domestic’ legal order vis-à-vis
international law.
59
Case C-402/05P, Kadi and Al Barakaat International Foundation v. Council and Commission
[2008] ECR I-6351.
60
Ibid., para. 285.
61
Ibid., para. 294.
62
Ibid., para. 300: ‘[I]mmunity from jurisdiction for a [Union] measure like the contested
regulation, as a corollary of the principle of the primacy at the level of international law
of obligations under the Charter of the United Nations, especially those relating to the
implementation of resolutions of the Security Council adopted under ChapterVII of the
Charter, cannot find a basis in the [European Treaties].’
63
Ibid., para. 308.
64
Ibid., para. 327.
Governmental Powers458
2. The ‘Written’ Bill of Rights: The Charter of Fundamental Rights
The desire for a written bill of rights for the European Union first expressed
itself,by the end of the 1970s,in arguments favouring accession to the European
Convention on Human Rights.65
Yet an alternative strategy became prominent
in the late twentieth century: the Union’s own bill of rights.
The initiative for a ‘Charter of Fundamental Rights’ came from the European
Council, which transferred the drafting mandate to a ‘European Convention’.66
The idea behind an internal Union codification was to strengthen the protection
of fundamental rights in Europe ‘by making those rights more visible in a
Charter’.67
The Charter was proclaimed in 2000,but it was then not legally binding.Its
status was similar to the European Convention on Human Rights:it provided
an informal inspiration but imposed no formal obligation on the European
Union.68
This ambivalent status was immediately perceived as a constitutional
problem.69
But it took almost a decade before the Lisbon Treaty recognised the
Charter as having ‘the same legal value as the Treaties’.
This second section looks at the structure and content of the Charter, before
investigating its relationship with the European Treaties. The relationship is
complex, since Article 6(1) TEU ‘appends’ the – amended70
– Charter to the
European Treaties. Not unlike the US ‘Bill of Rights’,71
the Charter is thus
placed outside the Union’s general constitutional structure.
a. The Charter: Structure and Content
The Charter ‘reaffirms’ the rights that result ‘in particular’ from the constitutional
traditions common to the Member States,the European Convention on
65
Commission, ‘Memorandum on the Accession of the European Communities to the
European Convention for the Protection of Human Rights and Fundamental Freedoms’
(1979) Bulletin of the European Communities – Supplement 2/79, esp. 11ff.
66
On the drafting process, see G. de Búrca,‘The Drafting of the European Union Charter of
Fundamental Rights’ (2001) 26 EL Rev. 126.
67
Charter, preamble 4. For a criticism of the idea of codification, see J. Weiler, ‘Does the
European Union Truly Need a Charter of Rights’ (2000) 6 ELJ 95 at 96:‘[B]y drafting a
list, we will be jettisoning one of the truly original features of the current constitutional
architecture in the field of human rights – the ability to use the legal system of each of
the Member States as an organic and living laboratory of human rights protection which
then,case by case,can be adapted and adopted for the needs of the Union by the European
Court in dialogue with its national counterparts.’ The argument however – wrongly –
assumed that the EU Charter would replace the Court’s general principles jurisprudence.
68
See Case C-540/03, Parliament v. Council [2006] ECR I-5769, para. 38:‘the Charter is not
a legally binding instrument’.
69
The Charter was announced at the Nice European Council, and its status was one of the
questions in the 2000 Nice ‘Declaration on the Future of the Union’.
70
The‘Convention’drafting the‘ConstitutionalTreaty’amended the Charter.The amended version
was first published in [2007] OJ C 303/1 and can now be found in [2010] OJ C 83/389.
71
The US ‘Bill of Rights’ is the name given to the first ten amendments to the 1787 US
Constitution.
Judicial Powers III 459
Human Rights and the general principles of European law.72
This formulation
suggests two things. First, the Charter aims to codify existing fundamental
rights and was thus not intended to create ‘new’ ones.And, second, it codifies
European rights from various sources – and thus not solely the general principles
found in the European Treaties. To help identify the source(s) behind
individual Charter articles, the Member States decided to give the Charter its
own commentary: the ‘Explanations’.73
These ‘Explanations’ are not strictly
legally binding, but they must be given ‘due regard’ in the interpretation of
the Charter.74
The structure of the Charter is shown in Table 12.1.The Charter divides the
Union’s fundamental rights into six classes.The classic liberal rights are covered
by Titles I to III as well as TitleVI.The controversial Title IV codifies the rights
of workers; yet, provision is here also made for the protection of the family and
the right to healthcare.75
TitleV deals with ‘citizens’ rights’, that is: rights that a
Table 12.1 Structure of the EU Charter
EU Charter of Fundamental Rights
Preamble
Title I – Dignity
Title II – Freedoms
Title III – Equality
Title IV – Solidarity
Title V – Citizens’ Rights
Title VI – Justice
Title VII – General Provisions
Article 51 – Field of Application
Article 52 – Scope and Interpretation of Rights and Principles
Article 53 – Level of Protection
Article 54 – Prohibition of Abuse of Rights
Protocol No. 30 on Poland & the United Kingdom
Explanations
72
Charter, preamble 5.
73
Art. 6(1) TEU – second indent.These so-called ‘Explanations’ are published in [2007] OJ
C 303/17.
74
Art. 6(1) TEU and Art. 52(7) Charter:‘The explanations drawn up as a way of providing
guidance in the interpretation of this Charter shall be given due regard by the courts of
the Union and of the Member States.’
75
See, respectively:Arts. 33 and 35 of the Charter.
Governmental Powers460
polity provides exclusively to its members.76
This includes the right to vote and
to stand as a candidate in elections.77
The general principles on the interpretation and application of the Charter
are finally set out in Title VII. These general provisions establish four fundamental
principles. First, the Charter is addressed to the Union and will only
exceptionally apply to the Member States.78
Second, not all provisions within
the Charter are ‘rights’, that is: directly effective entitlements for individuals.
Third, the rights within the Charter can, within limits, be restricted by Union
legislation.79
Fourth,the Charter tries to establish harmonious relations with the
European Treaties and the European Convention, as well as the constitutional
traditions common to the Member States.80
In the context of the present section,
principles two, three and four warrant special attention.81
aa. (Hard) Rights and (Soft) Principles
It is important to note that the Charter makes a distinction between ‘rights’ and
‘principles’.The Charter indeed expressly recognises the separate existence of
‘principles’ in TitleVII.82
The distinction between rights and principles seems to contradict the jurisprudence
of the Court with regard to fundamental rights as general principles in
the context of the European Treaties.Yet what the Charter here means is that
only those provisions that have direct effect will be ‘rights’ in that they can be
invoked before a court. Not all provisions within the Charter are rights in this
strict sense. Indeed, the Court has found that Charter provisions that are not
unconditional and sufficiently precise would require (legislative) concretisation
before they can become effective.83
What are these principles in the Charter, and what is their effect? The
‘Explanations’ offer a number of illustrations, for example: Article 37 of the
Charter dealing with ‘Environmental Protection’.The provision reads: ‘A high
76
Not all rights in this title appear to be citizens’ rights. For example,Art. 41 of the Charter
protecting the ‘right to good administration’ states (emphasis added):‘Every person has the
right to have his or her affairs handled impartially, fairly and within a reasonable time by
the institutions, bodies, offices and agencies of the Union.’
77
Art. 39 Charter.
78
Ibid.,Art. 51.
79
Ibid.,Art. 52(1).
80
Ibid.,Art. 52(2)–(4) and (6).
81
Principle one will be discussed in section 4(b) below.
82
Arts.51(1) and 52(5) of the Charter.For a good discussion of these provisions,and the case
law here,see J.Krommendijk,‘Principled Silence or Mere Silence on Principles?The Role
of the EU Charter’s Principles in the Case Law of the European Court of Justice’ (2015)
11 European Constitutional Law Review 321.
83
See e.g. Case C-176/12, Association de médiation sociale v. Union locale des syndicats CGT
and others, EU:C:2014:2, paras. 45 and 48:‘It is therefore clear from the wording of Article
27 of the Charter that, for this article to be fully effective, it must be given more specific
expression in European Union or national law … Accordingly,Article 27 of the Charter
cannot, as such, be invoked in a dispute, such as that in the main proceedings[.]’
Judicial Powers III 461
level of environmental protection and the improvement of the quality of the
environment must be integrated into the policies of the Union and ensured in accordance
with the principle of sustainable development.’84
This wording contrasts
strikingly with that of a classic right provision. For it constitutes less a limit to
governmental action than an aim for governmental action. Principles indeed
come close to orienting objectives, which ‘do not however give rise to direct
claims for positive action by the Union institutions’.85
They are not subjective
rights, but objective guidelines that need to be observed.86
Thus:
The provisions of this Charter which contain principles may be implemented by legislative
and executive acts taken by institutions … They shall be judicially cognisable
only in the interpretation of such acts and in the ruling on their legality.87
The difference between rights and principles is thus one between a hard and
a soft judicial claim.An individual will not have an (individual) right to a high
level of environmental protection, but in line with the classic task of legal prin-
ciples,88
the courts must generally draw ‘inspiration’ from the Union principles
when interpreting European law.
How is one to distinguish between ‘rights’ and ‘principles’? Sadly, the Charter
offers no catalogue of principles. Nor are its principles neatly grouped into a
section within each substantive title.And even the wording of a particular article
will not conclusively reveal whether it contains a right or a principle. But
most confusingly, even a single article ‘may contain both elements of a right and
of a principle’.89
How is this possible? The best way to make sense of this is to
see rights and principles not as mutually exclusive concepts, but as distinct yet
overlapping legal constructs.90
‘Rights’ are situational crystallisations of principles,
and therefore derive from principles.A good illustration may be offered by
Article 33 of the Charter on the status of the family and its relation to professional
life as pictured by Figure 12.3.
bb. Limitations, and ‘Limitations on Limitations’
Every legal order protecting fundamental rights recognises that some rights can
be limited to safeguard the general interest. For written bills of rights, these
limitations are often specifically recognised for each constitutional right.While
84
Emphasis added.
85
‘Explanations’ (n. 73 above), 35.
86
Art. 51(1) of the Charter:‘respect the rights, observe the principles’.
87
Ibid.,Art. 52(5).
88
See R. Dworkin, Taking Rights Seriously (Duckworth, 1996).
89
‘Explanations’ (n. 73 above), 35.
90
In this sense,see R.Alexy,ATheory of Constitutional Rights (Oxford University Press,2002),
47 – using theWittgensteinian concept of‘family resemblance’to describe the relationship
between ‘rights’ and ‘principles’.
Governmental Powers462
the Charter follows this technique for some articles,91
it also contains a provision
that establishes general rules for limitations to all fundamental rights.
These general rules are set out in Article 52 of the Charter. The provision
states:
Figure 12.3 Principles and Rights within the Charter
Principle
Family and Professional Life
Right
1 The family shall enjoy legal, economic
and social protection.
2 To reconcile family and
professional life, everyone shall
have the right to protection
from dismissal for a reason
connected with maternity and
the right to paid maternity leave
and to parental leave following the
birth or adoption of a child.
Any limitation on the exercise of the rights and freedoms recognised by this Charter
must be provided for by law and respect the essence of those rights and freedoms.
Subject to the principle of proportionality, limitations may be made only if they are
necessary and genuinely meet objectives of general interest recognised by the Union
or the need to protect the rights and freedoms of others.92
The provision subjects all limitations to EU Charter rights to three constitutional
principles.
First, any limitation of fundamental rights must be provided for ‘by law’.This
(new Lisbon) requirement seems to prohibit, out of hand, human rights violations
that are the result of individual acts based on autonomous executive pow-
ers.93
The Court has confirmed this in Knauf Gips v. Commission.94
The problem is still this: will a limitation of someone’s fundamental rights
require the (democratic) legitimacy behind formal legislation? Put differently:
91
See Art. 17 (Right to Property) of the Charter, which states in para. 1:‘No one may be
deprived of his or her possessions, except in the public interest and in the cases and under
the conditions provided for by law, subject to fair compensation being paid in good time
for their loss.The use of property may be regulated by law in so far as is necessary for the
general interest.’
92
Ibid.,Art. 52(1) (emphasis added).
93
On autonomous executive acts, see Chapter 9, section 2.
94
Case C-407/08P, Knauf Gips v. Commission [2010] ECR I-6371, esp. paras. 91–2.
Judicial Powers III 463
must every‘law’limiting a fundamental right be adopted under a‘legislative pro-
cedure’?95
This view would significantly affect the balance between fundamental
rights and the (democratic) pursuit of the common good. For if Article 52 outlaws
all limitations of fundamental rights that are the result of delegated executive
acts, much of the governmental machinery of the Union would come to a halt.
In order to prevent such a ‘petrification’ of the executive branch, the Court
has rejected a formal concept of‘law’.Its material reading of the phrase‘provided
for by law’ was confirmed in Schecke & Eifert.96
The case concerned two farmers
who had received money under the Union’s Common Agricultural Policy
(CAP). One of the conditions for the receipt of money was the requirement to
consent to the publication of information on the beneficiaries of the aid.This
requirement had been established by a Union regulation adopted by the Council
(!), which was subsequently implemented by a Commission (!) regulation.The
two farmers claimed, inter alia, that their fundamental right to the protection of
personal data under Article 8 of the Charter had been infringed;97
and the question
arose whether the publication of their names was ‘provided for by law’.The
Court indeed held that this was the case by simply pointing to the Commission
(!) regulation requiring such publication.98
In light of this judgment, the best reading of the first requirement in Article
52 EU Charter is therefore this: the requirement that each limitation of a fundamental
right be ‘provided for by law’ does not require direct democratic legitimation
of all fundamental right interferences.99
The provision rather insists on
the liberal demand that all such interferences are rooted in a generally applicable
norm.The generality of the norm is here a guarantee against arbitrary interferences
that violate the central pillar of modern liberalism: equality before the law.
95
In favour of this view, see D.Triantafyllou,‘The European Charter of Fundamental Rights
and the “Rule of Law”: Restricting Fundamental Rights by Reference’ (2002) 39 CML
Rev. 53–64 at 61: ‘Accordingly, references to “law” made by the Charter should ideally
require a co-deciding participation of the European Parliament’.
96
Joined Cases C-92–3/09, Schecke & Eifert v. Land Hessen [2010] ECR I-11063.
97
Art. 8(1) EU Charter states: ‘Everyone has the right to the protection of personal data
concerning him or her.’
98
Joined Cases C-92–3/09, Schecke & Eifert, para. 66: ‘First, it is common ground that the
interference arising from the publication on a website of data by name relating to the
beneficiaries concerned must be regarded as “provided for by law” within the meaning
of Article 52(1) of the Charter.Articles 1(1) and 2 of Regulation No. 259/2008 expressly
provide for such publication.’
99
In this sense,see also Case C-130/10,Parliament v.Council,EU:C:2012:472,esp,para.83:‘So
far as concerns the Parliament’s argument that it would be contrary to Union law for it to
be possible for measures to be adopted that impinge directly on the fundamental rights of
individuals and groups by means of a procedure excluding the Parliament’s participation, it
is to be noted that the duty to respect fundamental rights is imposed, in accordance with
Article 51(1) of the Charter of Fundamental Rights of the European Union, on all the
institutions and bodies of the Union.’The Court has now also expressly confirmed that an
international agreement may constitute a‘law’for the purposes ofArt.52 of the EU Charter,
see:Opinion 1/15,EU:C:2017:592,esp.paras.145–6.The reasoning here comes nevertheless
suspiciously close to requiring a formal legislative act – at least for the internal sphere.
Governmental Powers464
Be that as it may,Article 52(1) of the Charter mentions, of course, two additional
limitations on limitations. Most importantly:Article 52 has confirmed the
independent existence of an absolute limit to public interferences into fundamental
rights by insisting that each limitation must always ‘respect the essence’
of the right in question.The codification of the ‘essential core’ doctrine is to be
welcomed; and its independence from the principle of proportionality has been
consistently confirmed.100
Finally, and according to the principle of proportionality, each restriction
of fundamental rights must be necessary in light of the general interest of the
Union or the rights of others.This imposes an obligation on the Union to balance
the various rights and interests at stake.In Digital Rights Ireland,for example,
the Court found that Union Directive 2006/24 on data retention could not be
justified on public security grounds. In the words of the Court:
As regards the necessity for the retention of data required by Directive 2006/24, it
must be held that the fight against serious crime, in particular against organised
crime and terrorism, is indeed of the utmost importance in order to ensure public
security and its effectiveness may depend to a great extent on the use of modern
investigation techniques … In this respect, it must be noted, first, that Directive
2006/24 covers, in a generalised manner, all persons and all means of electronic
communication as well as all traffic data without any differentiation, limitation or
exception being made in the light of the objective of fighting against serious crime
… It follows from the above that Directive 2006/24 does not lay down clear and
precise rules governing the extent of the interference with the fundamental rights
enshrined in Articles 7 and 8 of the Charter. It must therefore be held that Directive
2006/24 entails a wide-ranging and particularly serious interference with those fundamental
rights in the legal order of the EU, without such an interference being
precisely circumscribed by provisions to ensure that it is actually limited to what is
strictly necessary … Having regard to all the foregoing considerations, it must be
held that, by adopting Directive 2006/24, the EU legislature has exceeded the limits
imposed by compliance with the principle of proportionality in the light of Articles
7, 8 and 52(1) of the Charter.101
100
Case C-293/12,Digital Rights Ireland Ltd v.Minister for Communications,Marine and Natural
Resources.The Court here clearly distinguished between a violation of the essential core
doctrine (ibid., paras. 39–40) and a breach of the principle of proportionality (ibid., paras.
45–69). For more recent confirmation, see Case C-547/14, Philip Morris and others v.
Secretary of State for Health, EC:C:2016:325, esp. para. 151.
101
Case C-293/12, Digital Rights Ireland Ltd, paras. 51–69.Arts. 7 and 8 of the Charter deal,
respectively, with the respect for private and family life and the protection of personal
data.
The Court consequently annulled the relevant Union legislation because it
constituted a disproportionate interference with EU fundamental rights.
Judicial Powers III 465
b. Relations with the European Treaties (and the European Convention)
aa. Harmonious Relations with the European Treaties
The EU Charter has come to be the focal point for all judicial analysis of fundamental
rights violations in the Union legal order. Instead of referring back
to the older (unwritten) general principles, the Court now prefers to start with
the Charter.The Charter is however not ‘inside’ the Treaties but ‘outside’ them.
The question therefore arises as to its relationship with the European Treaties.
According to Article 6(1) TEU, the Charter has the same legal value as the
Treaties and its relationship to them is governed by Title VII of the Charter.
Article 52(2) here specifically governs the relationship between the Charter and
the Treaties. It states:
Rights recognised by this Charter for which provision is made in the Treaties shall be
exercised under the conditions and within the limits defined by those Treaties.
The Charter thus adopts the Latin rule of lex specialis derogat lex generalis: the
more specific – constitutional – law controls the more general law.Where the
Charter codifies a fundamental right or freedom from the Treaties, the EU
Treaties will have precedence and the Court is likely to confine its analysis to
the provision(s) in the Treaties only.102
But this elegant theoretical solution suffers from practical uncertainties. How
are we to identify the rights the Charter ‘recognises’ as (unwritten) fundamental
rights within the European Treaties? The ‘Explanations’ are not of much assistance.A
question to be resolved in future jurisprudence will thus be this: has the
Charter recognised rights from the constitutional traditions of the Member States
outside those recognised as general principles within the European Treaties?103
If
that was the case, those Charter rights would not be subject to the conditions
and limits defined by the Treaties. And even where a Charter right does correspond
to a general principle in the Treaties, the latter could have a narrower
scope than the corresponding right in the Charter. In such cases, the question
102
Case C-233/12, Gardella v. INPS, EU:C:2013:449, esp. paras. 39 and 41: ‘In that vein,
Article 15(2) of the Charter reiterates inter alia the free movement of workers guaranteed
by Article 45 TFEU, as confirmed by the explanations relating to that provision …
Consequently, in order to answer the questions referred, an analysis of Articles 45 TFEU
and 48 TFEU is sufficient.’
103
Art. 52(4) of the Charter states:‘In so far as this Charter recognises fundamental rights as
they result from the constitutional traditions common to the Member States, those rights
shall be interpreted in harmony with those traditions.’The‘Explanations’(n.73 above),34,
tell us that Art. 52(4) has been based on the wording of Art. 6(3) TEU and demands that
‘rather than following a rigid approach of “a lowest common denominator”, the Charter
rights concerned should be interpreted in a way offering a high standard of protection
which is adequate for the law of the Union and in harmony with the common constitutional
traditions’.
Governmental Powers466
arises whether the entire Charter right is subject to the limitations established by
the Treaties for the general principle.104
bb. Harmonious Relations with the European Convention
The Charter’s relation to the European Convention is even more puzzling.The
Charter seemingly offers a simple solution in its Article 52(3):
In so far as this Charter contains rights which correspond to rights guaranteed by
the Convention for the Protection of Human Rights and Fundamental Freedoms, the
meaning and scope of those rights shall be the same as those laid down by the
said Convention. This provision shall not prevent Union law providing more extensive
protection.
The provision appears to materially incorporate the European Convention on
Human Rights into the Charter. On its surface, the first sentence of the provision
thereby extends the lex specialis rule established in the previous paragraph
for the European Treaties. It thus seems that for those Charter rights that correspond
to Convention rights, the conditions and limits of the latter will apply.105
But the logic of Convention precedence is contradicted by the second sentence.
For if we allow Charter rights to adopt a higher standard of protection than that
established in the European Convention,106
it must be the Charter that constitutes
the lex specialis for the European Union.
The wording of Article 52(3) is thus – highly – ambivalent.The best way to
resolve the textual contradiction is to interpret the provision to simply mean that
104
This excellent point is made by K. Lenaerts and E. de Smijter,‘A “Bill of Rights” for the
European Union’ (2001) 38 CML Rev. 273, 282–4.The authors compare the scope of
the respective non-discrimination rights of the Charter (Art. 21 of the Charter) with that
of the Treaties (Art. 19 TFEU).The scope of the former seems thereby broader than the
scope of the latter.The question therefore arises whether the Court will subject the‘additional’
scope of Art. 21 of the Charter to the conditions set out in the TFEU.The same
question potentially arises in the context of the freedom to conduct a business within
the Charter (Art. 16 of the Charter) and its relationship to the free movement provisions
within the TFEU.
105
The ‘Explanations’ (n. 73 above), 33, contain a list of rights that ‘at the present stage’
must be regarded as corresponding to rights in the ECHR. For a recent case on the
first sentence of Art. 52(3) Charter, see Case C-279/09, Deutsche Energiehandels- und
Beratungsgesellschaft mbH.
106
It has been argued that this contradiction would dissolve if ‘Union law’ is understood as
referring to the European Treaties or European legislation – and not to the Charter (T.
Schmitz,‘Die Grundrechtscharta als Teil derVerfassung der Europäischen Union’ [2004]
Europarecht 691 at 710).But there are serious textual,historical and teleological arguments
against this view.First,why should Art.52(3) of the Charter not deal with the relationship
between the Charter and the ECHR? Put differently, if the second sentence were confined
to the higher standard established by the European Treaties, why was this not clarified
in Art. 6(2) TEU or Art. 6(3) TEU? Second, historically, the European Convention
Working Group had expressly argued for a higher standard within the Charter (see
Working Group II (Final Report) (2002) CONV 354/02, 7: ‘The second sentence of
Judicial Powers III 467
‘the level of protection afforded by the Charter may never be lower than that
guaranteed by the ECHR’.107
Convention rights will thus offer a baseline – a
minimum standard – for Charter rights.
3. The ‘External’ Bill of Rights: The European Convention on
Human Rights
The discovery of an unwritten bill of rights and the creation of a written bill of
rights for the Union have been ‘internal’ achievements.They did ‘not result in
any form of external supervision being exercised over the Union’s institutions’.108
Indeed,until recently,the Union was not a party to a single international human
rights treaty.109
And, by preferring its internal human rights over any external
international standard, the Court has been accused of a ‘chauvinist’ and ‘parochial’
attitude.110
This bleak picture is distorted – at the very least, when it comes to one
international human rights treaty that has always provided an external standard
to the European Union: the European Convention on Human Rights. From
the very beginning, the Court of Justice took the Convention very seriously,111
Article 52 §3 of the Charter serves to clarify that this article does not prevent more extensive
protection already achieved or which may subsequently be provided for (i) in Union
legislation and (ii) in some articles of the Charter which, although based on the ECHR,
go beyond the ECHR because Union law acquis had already reached a higher level of
protection (e.g.Article 47 on effective judicial protection,orArticle 50 on the right not to
be punished twice for the same offence).Thus,the guaranteed rights in the Charter reflect
higher levels of protection in existing Union law’). Third, there are good teleological
arguments for allowing a higher Charter standard (see D. Chalmers et al., European Union
Law (Cambridge University Press, 2010), 244: ‘The ECHR covers forty-six states. It is
committed to a less intense form of political integration and governs a more diverse array
of situations than the European Union. It is not clear that the judgments of a court such
as the European Court of Human Rights, operating in that context, should be accepted
almost unquestioningly’).
107
‘Explanations’(n.73 above),33.The‘Explanations’subsequently distinguish between a list
of Charter rights ‘where both the meaning and the scope are the same as the corresponding
Articles of the ECHR’, and those Charter rights ‘where the meaning is the same as
the corresponding Articles of the ECHR, but where the scope is wider’ (ibid., 33–4).
108
I. de Jesús Butler and O. de Schutter, ‘Binding the EU to International Human Rights
Law’ (2008) 27 YEL 277 at 278.This statement is correct only if limited to direct external
supervision.
109
Ibid., 298.The Union has now acceded to the United Nations Convention on the Rights
of Persons with Disabilities, see [2010] OJ L 23/35. On the negotiating history of the
Convention, see G. de Búrca, ‘The European Union in the Negotiation of the UN
Disability Convention’ (2010) 35 EL Rev. 174.
110
G.de Búrca,‘The European Court of Justice and the International Legal Order after Kadi’
(2010) 51 Harvard International Law Journal 1. In a later publication, Professor de Búrca
softens her charge that the European Union ignores or snubs international or regional
human rights law, see de Búrca,‘Evolution’ (n. 5 above), 489.
111
See S. Douglas-Scott,‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing
European Human Rights Acquis’ (2006) 43 CML Rev. 629.And in the words of a distinguished
judge of the Court:‘[C]ontrary to what sometimes seems to be assumed in the
Governmental Powers468
sometimes even too seriously.112
The Union has for a long time indeed acted as
if it was bound by the ECHR,113
and even the ECHR has developed some form
of external review of Union acts. Nonetheless, there are still many complexities
and shortcomings in the Union’s relations to the European Convention as long
as the Union is not formally bound by it. In the words of the Court:
[I]t is to be remembered that whilst, as Article 6(3) TEU confirms, fundamental rights
recognised by the ECHR constitute general principles of the European Union’s law
and whilst Article 52(3) of the Charter requires rights contained in the Charter which
correspond to rights guaranteed by the ECHR to be given the same meaning and
scope as those laid down by the ECHR, the latter does not constitute, as long as the
European Union has not acceded to it, a legal instrument which has been formally
incorporated into European Union law.114
This third section explores the external Convention standard before and after
Union accession in a first step.Thereafter, we shall quickly look at the accession
(pre)conditions imposed by the Union legal order.
a. The European Convention Standard for Union Acts
aa. Before Accession: (Limited) Indirect Review
The Union is not a formal party to the European Convention.And the European
Convention system has not found the European Union to have ‘succeeded’ its
Member States.115
Could the Member States thus escape their international
obligations under the Convention by transferring decision-making powers to
the European Union? In order to avoid a normative vacuum, the European
legal literature, I am not aware of a single case where the ECJ has gone clearly against an
interpretation advanced by the European Court of Human Rights.’ See A. Rosas, ‘The
European Court of Justice in Context: Forms and Patterns of Judicial Dialogue’ (2007) 1
European Journal of Legal Studies 1 at 10.
112
See Case C-145/04, Spain v. United Kingdom [2006] ECR I-7917. In that case, Spain
had – rightly – argued that the extension of the right to vote in elections to the
European Parliament to persons who are not citizens of a Member State violates Art. 20
TFEU.Yet the Court, expressing ‘[a]t the outset’ (Ibid., para. 60) its wish to comply with
the judgment of the European Court of Human Rights in Matthews v. United Kingdom
[1999] 28 EHRR 361, misinterpreted the federal foundations of the European Union
to pursue this aim to the end (paras. 94–5).
113
There however seems to be a decline in the material use of the ECHR as a point of
reference after the adoption of the EU Charter (see G. de Búrca,‘After the EU Charter
of Fundamental Rights:The Court of Justice as a Human rights Adjudicator?’ (2013) 20
Maastricht Journal of European and Comparative Law 168).
114
For this pertinent reminder, see Case C-617/10, Åklagaren v. Hans Åkerberg Fransson,
EU:C:2013:105, para. 44 (emphasis added).
115
Conféderation Française Démocratique du Travail v. European Communities (alternatively, their
Member States) [1978] 13 DR 231, 240:‘In so far as the application is directed against the
European [Union] as such the Commission points out that the European [Union] [is]
Judicial Powers III 469
Convention system has developed a form of indirect judicial review of Union
acts.
This indirect review is based on the doctrine of (limited) State responsibility
for acts of the Union.This complex construction draws on the idea of a human
rights mortgage: the ECHR Member States cannot transfer powers to the EU
without being bound – at least to some extent – by the European Convention
to which they are formal parties. In M & Co. v. Germany,116
the European
Commission of Human Rights thus found that, whereas ‘the Convention does
not prohibit a Member State from transferring powers to international organisations’,‘a
transfer of powers does not necessarily exclude a State’s responsibility under
the Convention with regard to the exercise of the transferred powers’.117
This would
however not mean that the State was to be held responsible for all actions of the
Union, because:‘it would be contrary to the very idea of transferring powers to
an international organisation to hold the Member States responsible … in each
individual case’.118
And consistent with its chosen emphasis on State responsibility,
the Convention system would therefore not concentrate on a concrete
Union act, but on the States’ decision to transfer powers to the Union. This
transfer of powers was thereby deemed ‘not incompatible with the Convention
provided that within that organisation fundamental rights will receive an equivalent
protection’.119
In Bosphorus,120
the European Court of Human Rights justified this ‘middle
ground’ position as follows:
not a Contracting Party to the European Convention on Human Rights (Art 66 of the
Convention).To this extent the consideration of the applicant’s complaint lies outside the
Commission’s jurisdiction ratione personae.’
116
M& Co. v. Federal Republic of Germany (1990) 64 DR 138.
117
Ibid., 145 (emphasis added).
118
Ibid., 146.
119
Ibid., 145 (emphasis added).
120
Bosphorus HavaYollariTurizm veTicaret Anonim Sirketi v. Ireland [2006] 42 EHRR 1.
The Convention does not, on the one hand, prohibit Contracting Parties from transferring
sovereign power to an international (including a supranational) organisation
in order to pursue co-operation in certain fields of activity. Moreover, even as
the holder of such transferred sovereign power, that organisation is not itself held
responsible under the Convention for proceedings before, or decisions of, its organs
as long as it is not a Contracting Party. On the other hand, it has also been accepted
that a Contracting Party is responsible under Article 1 of the Convention for all acts
and omissions of its organs regardless of whether the act or omission in question
was a consequence of domestic law or of the necessity to comply with international
legal obligations. Article 1 makes no distinction as to the type of rule or measure
concerned and does not exclude any part of a Contracting Party’s ‘jurisdiction’ from
scrutiny under the Convention.
In reconciling both these positions and thereby establishing the extent to which
a State’s action can be justified by its compliance with obligations flowing from its
Governmental Powers470
In its indirect review of Union acts (via its Member States), the Convention
Court would thus not apply its ‘normal’ standard.122
Because the Union protected
human rights in an ‘equivalent’ manner to that of the Convention, the
European Court of Human Rights would operate a‘presumption’that the States
had not violated the Convention by transferring powers to the European Union.
This presumption translates into a lower review standard for acts adopted by the
European Union,123
since the presumption of equivalent protection will only
be rebutted where the actual treatment of human rights within the Union was
‘manifestly deficient’.124
This lower review standard represents a compromise between two extremes:
no control (as the Union is not a Convention member) and full control;and this
compromise has been said to be ‘the price for Strasbourg achieving a level of
control over the EU, while respecting its autonomy as a separate legal order’.125
membership of an international organisation to which it has transferred part of its
sovereignty, the Court has recognised that absolving Contracting States completely
from their Convention responsibility in the areas covered by such a transfer would
be incompatible with the purpose and object of the Convention … In the Court’s
view, State action taken in compliance with such legal obligations is justified as long
as the relevant organisation is considered to protect fundamental rights, as regards
both the substantive guarantees offered and the mechanisms controlling their observance,
in a manner which can be considered at least equivalent to that for which the
Convention provides. By ‘equivalent’ the Court means ‘comparable’; any requirement
that the organisation’s protection be ‘identical’ could run counter to the interest of
international co-operation pursued.121
121
Ibid., paras. 152–5 (emphasis added).
122
For a criticism of this point, see Joint Concurring Opinion of Judges Rozakis et al. (ibid.
paras. 3–4):‘The right of individual application is one of the basic obligations assumed by
the States on ratifying the Convention. It is therefore difficult to accept that they should
have been able to reduce the effectiveness of this right for persons within their jurisdiction
on the ground that they have transferred certain powers to the European [Union]. For the
Court to leave to the [Union’s] judicial system the task of ensuring“equivalent protection”
without retaining a means of verifying on a case-by-case basis that that protection is indeed
“equivalent”, would be tantamount to consenting tacitly to substitution, in the field of
[European] law,of Convention standards by a [Union] standard which might be inspired by
Convention standards but whose equivalence with the latter would no longer be subject to
authorised scrutiny … In spite of its relatively undefined nature, the criterion “manifestly
deficient”appears to establish a relatively low threshold,which is in marked contrast to the
supervision generally carried out under the European Convention on Human Rights.’
123
J. Callewaert,‘The European Convention on Human Rights and European Union Law:
A Long Way to Harmony’ [2009] European Human Rights Law Review 768, 773:‘through
the Bosphorus-presumption and its tolerance as regards “non manifest” deficiencies, the
protection of fundamental rights under [European] law is policed with less strictness than
under the Convention’.
124
Bosphorus (n. 120 above), paras. 156–7.
125
Douglas-Scott,‘Tale of Two Courts’ (n. 111 above), 639.
Judicial Powers III 471
Under the European Convention, Member States are consequently not responsible
for every European Union act that – theoretically – violates the European
Convention.
When can a Member State benefit from the Bosphorus presumption, and
when not?The Convention system has introduced an important distinction in
this context:where a Member State executes compulsory or non-discretionary
Union acts, it would benefit from limited review; whereas voluntary or discretionary
State acts would be subject to a full review. For all EU primary
law, the Member States will thus be directly and fully responsible because
European primary law is freely ‘authored’ by the Member States – not the
European Union.126
European secondary law, by contrast, is always ‘authored’
by the Union; yet the Bosphorus presumption will here only apply to ‘fully
determined’ European Union acts, that is: acts that do not involve any discretionary
implementation by the Member States.Where Union secondary law
offers Member States a choice on how to implement Union law, these discretionary
national acts are national acts – not Union acts – and therefore subject
to a full Convention review.127
bb. After Accession: (Full) Direct Review
The present Strasbourg jurispsrudence privileges the Union in not subjecting it
to the full external review by the European Court of Human Rights.This privilege
is not the result of the Union being a‘model’member.Instead it results from
the Union not being a formal member of the European Convention system.
Will the presumption that the Union – in principle – complies with
the European Convention disappear with accession? It seems compelling
that the Bosphorus presumption will cease once the Union accedes to the
Convention. For ‘[b]y acceding to the Convention, the European Union will
have agreed to have its legal system measured by the human rights standards
of the ECHR’, and will ‘therefore no longer deserve special treatment’.128
The replacement of an indirect review by a direct review should therefore – at
least in theory – lead to the replacement of the limited review by a full review.
Yet the life of law is not always logical, and the Strasbourg Court may well
decide to cherish past experiences by applying a lower review standard to the
(acceded) European Union.
126
On the European law principles governing the authorship of an act, see R. Schütze,‘The
Morphology of Legislative Powers in the European Community: Legal Instruments and
the Federal Division of Powers’ (2006) 25YEL 91, 98ff.
127
Bosphorus (n. 120 above), paras. 148 and 157.
128
T. Lock,‘EU Accession to the ECHR: Implications for Judicial Review in Strasbourg’
(2010) 35 EL Rev. 777 at 798. See also O. de Schutter, ‘Bosphorus Post-Accession:
Redefining the Relationship between the European Court of Human Rights and
the Parties to the Convention’, inV. Kosta et al. (eds.), The EU Accession to the ECHR
(Hart, 2014), 177: ‘This chapter argues that there will be no argument to justify the
survival of the doctrine in its current form following the accession of the EU to the
ECHR[.]’
Governmental Powers472
What seems however certain is that accession will widen the scope of application
of the European Convention to all Union actions.As we saw above, the
external review of Union acts prior to accession depended on the Member States
implementing Union acts; and this, by definition, required that a Member State
had acted in some way and thereby exercised ‘its’ authority (even if this national
authority was confined to non-discretionary choices). By contrast, in situations
where the Union institutions had acted directly upon an individual without any
mediating Member State measure, this Union act could not – even indirectly –
be reviewed.129
For in the absence of a connecting factor to one of the signatory
States, the Union act was outside the Convention’s jurisdiction.130
This should
definitely change once the Union accedes to the Convention. Henceforth all
Union actions that directly enforce European law would fall within the jurisdiction
of the Strasbourg Court.
b. Union Accession to the European Convention: Preconditions
The EU Commission has,long ago,suggested that an accession to the Convention
should be pursued.131
But under the originalTreaties,the European Union lacked
the express power to conclude human rights treaties. The Commission had
thus proposed using the Union’s general competence: Article 352 TFEU; yet –
famously – the Court rejected this strategy in Opinion 2/94.132
Since accession by
the Union would have ‘fundamental institutional implications’ for the Union and its
Member States,it would go beyond the scope ofArticle 352TFEU.133
Only a subsequentTreaty
amendment could provide the Union with the power of accession.
This power has now been granted by the Lisbon amendment. According to
Article 6(2)TEU,the European Union‘shall accede to the European Convention
for the Protection of Human Rights and Fundamental Freedoms’. The ‘shall’
formulation indicates that the Union is even constitutionally obliged to become
a member of this organisation.134
However, membership must not ‘affect the
Union’s competences as defined in the Treaties’;135
and, even more importantly,
Union accession to the European Convention needs to pay due regard to the
‘specific characteristics of the Union and Union law’.136
These constitutional
129
See Connolly v. Fifteen Member States of the European Union (Application No. 73274/01).
130
Art.1 of the ECHR states:‘The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section I of this Convention.’
131
Commission,‘Memorandum’ (n. 65 above).
132
Opinion 2/94 (Accession to ECHR) [1996] ECR I-1759.
133
Ibid., paras. 35–6 (emphasis added). On this point, see: Chapter 7, section 1(b/bb).
134
Membership of the European Convention is now open to the European Union. For a
long time,accession to the European Convention was confined to States (see Art.4 of the
Statute of the Council of Europe).This has recently changed with the amendment to Art.
59 of the Convention, para. 2 of which now states:‘The European Union may accede to
this Convention.’
135
Art. 6(2) TEU.
136
Protocol No. 8 relating to Art. 6(2) of the Treaty on European Union on the Accession
of the Union to the European Convention on the Protection of Human Rights and
Judicial Powers III 473
preconditions have recently been given a controversial interpretation in Opinion
2/13 (Accession to the ECHR II).
aa. Union Accession I: Constitutional Preconditions
No Opinion by the Court has generated more – negative – commentary
in recent years than Opinion 2/13.137
The Court had been asked to preview
the constitutionality of an agreement negotiated between the Union and the
ECHR Member States that would have affected the accession of the Union.
And, infamously, the Court gave a resounding ‘no’.This ‘no’ went against the
three principal Union institutions as well as the absolute majority of Member
States,138
and yet: the Court was, with regard to its overall result, correct to find
that the (draft) accession agreement violated the ‘specific characteristics of the
Union and Union law’.139
What was the main problem for the Court? The Court recalled that the
Union is not a State; and that its legal order was a ‘new kind of legal order’ that
was neither international nor national in nature.140
The special characteristics
of the Union were thereby partly manifested in the horizontal relations between
the Member States and found particular expression in the principle of mutual
Fundamental Freedoms,Art. 1.According to the provision, this duty includes in particular:‘(a)
the specific arrangements for the Union’s possible participation in the control
bodies of the European Convention’; and,‘(b) the mechanisms necessary to ensure that
proceedings by non-Member States and individual applications are correctly addressed
to Member States and/or the Union as appropriate’. According to Art. 2: ‘The agreement
referred to in Article 1 shall ensure that accession of the Union shall not affect the
competences of the Union or the powers of its institutions. It shall ensure that nothing
therein affects the situation of Member States in relation to the European Convention,
in particular in relation to the Protocols thereto, measures taken by Member States derogating
from the European Convention in accordance with Article 15 thereof and reservations
to the European Convention made by Member States in accordance with Article
57 thereof.’
137
For a selection of the numerous academic discussions, see Editorial,‘The EU’s Accession
to ECHR – a “NO” from ECJ!’ (2015) 52 CML Rev. 1; P. Gragl,‘The Reasonableness
of Jealousy: Opinion 2/13 and EU Accession to the ECHR’ (2015) 15 EuropeanYearbook
on Human Rights 27; T. Lock, ‘The Future of the European Union’s Accession to the
European Convention of Human Rights after Opinion 2/13: Is It Still Possible and Is
It Still Desirable?’ (2015) 11 European Constitutional Law Review 239; B. de Witte and S.
Imamovic, ‘Opinion 2/13 on Accession to the ECHR: Defending the EU Legal Order
against a Foreign Human Rights Court’ (2015) 40 EL Rev 683.
138
The Commission, the Parliament, the Council as well as 24(!) Member States had all
intervened and pleaded in favour of accession.
139
This does not mean that one must agree with all aspects, formal or substantive, of the
Opinion. Especially the discussions with regard to Art. 53 of the EU Charter (ibid., paras.
179–90) and the preliminary ruling mechanism (ibid.,paras.196–200) are,in my view,weak.
By contrast,the Court’s arguments with regard to the CFSP are,in my view,rather convincing.
For as long as the Member States are unwilling to grant the ECJ jurisdiction on CFSP
matters,it would be incongruous to confer such jurisdiction‘exclusively on an international
court which is outside the institutional and judicial framework of the EU’ (ibid., para. 256).
140
Ibid., paras. 156–8.
Governmental Powers474
trust and mutual recognition.141
These – federal – principles constitute, as we
saw in Chapter 11, a key founding stone of the Union legal order.The principle
of mutual recognition demands that Member States must generally accept the
decisions of other Member States as if they had adopted these decisions themselves.
For example: Germany cannot, in principle, refuse to recognise a decision of
a French court because it believes that the decision of the latter violates fundamental
human rights; and, according to the ECJ, this logic would have been
undermined by the draft accession agreement:
[W]hen implementing EU law, the Member States may, under EU law, be required to
presume that fundamental rights have been observed by the other Member States,
so that not only may they not demand a higher level of national protection of fundamental
rights from another Member State than that provided by EU law, but, save in
exceptional cases, they may not check whether that other Member State has actually,
in a specific case, observed the fundamental rights guaranteed by the EU.
The approach adopted in the agreement envisaged, which is to treat the EU as a
State and to give it a role identical in every respect to that of any other Contracting
Party, specifically disregards the intrinsic nature of the EU and, in particular, fails to
take into consideration the fact that the Member States have, by reason of their
membership of the EU, accepted that relations between them as regards the matters
covered by the transfer of powers from the Member States to the EU are governed by
EU law to the exclusion, if EU law so requires, of any other law. In so far as the ECHR
would, in requiring the EU and the Member States to be considered Contracting
Parties not only in their relations with Contracting Parties which are not Member
States of the EU but also in their relations with each other, including where such relations
are governed by EU law, require a Member State to check that another Member
State has observed fundamental rights, even though EU law imposes an obligation of
mutual trust between those Member States, accession is liable to upset the underlying
balance of the EU and undermine the autonomy of EU law.142
The passage is problematic because the Court was wrong to insinuate that
the problem with the accession agreement lay in the fact that it ‘treat[ed] the
EU as a State and to give it a role identical in every respect to that of any other
Contracting Party’. Indeed, the opposite was the case. For the true problem
with the agreement was treating the Member States (!) like any third contracting
party – without due regard to their being Member States of the European
Union.While a third State may thus need to check compliance with the ECHR
standard when it extradites one of its nationals, within a federal Union – which
141
Ibid., para. 168 (emphasis added):‘This legal structure is based on the fundamental premise
that each Member State shares with all the other Member States, and recognises that
they share with it, a set of common values on which the EU is founded, as stated in
Article 2 TEU.That premise implies and justifies the existence of mutual trust between
the Member States that those values will be recognised and, therefore, that the law of the
EU that implements them will be respected.’
142
Ibid., paras. 192–4 (emphasis added).
Judicial Powers III 475
is itself (eventually) bound by the ECHR – this obligation undermines the principle
of mutual recognition and trust. And in the eyes of the Court it was this
lack of federal sensitivity towards the Member States as States within the European
Union that was ‘liable adversely to affect the specific characteristics of EU law
and its autonomy’.143
If that reading is accepted, the problem with the accession agreement was not
that it treated the EU like a State but rather that it treated it too much like an
international organisation of ‘sovereign’ contracting parties. That is, instead of
allowing Member States to mutually trust each other within a federal Union
of States and blame the Union for failures in the principle of mutual trust, the
accession agreement overemphasised the independent contracting status of each
State. For many a human rights lawyer, this view has been hard to swallow.144
And it is difficult to see how a new accession agreement would soon emerge
on the horizon.
bb. Union Accession II: Procedural Conditions
How would a – future – negotiated accession agreement be concluded? On
the Union side, accession will principally depend on the Member States of the
Union:
143
Ibid., para. 200.
144
For a good overview of some of the – truly exaggerated – claims, and in particular
the accusation that the ECJ was a ‘danger to human rights protection’ (see Gragl,
‘Reasonableness of Jealousy’ (n. 137 above)).
145
Art. 218(8) TFEU – second indent.
146
Ibid.,Art. 218(6)(a)(ii).
The Council shall … act unanimously for the agreement on accession of the Union
to the European Convention for the Protection of Human Rights and Fundamental
Freedoms; the decision concluding this agreement shall enter into force after it has
been approved by the Member states in accordance with their respective constitutional
requirements.145
The Council will thus have to agree unanimously, having previously
obtained the consent of the European Parliament,146
and unlike ordinary
international agreements of the Union, the Union decision concluding the
accession agreement will – like a mixed agreement – only come into force
once each and every Member State has ratified it. The Member States will
therefore be able to block Union accession twice: once in the Council and
once outside it.And while they technically are under a constitutional obligation
to consent to accession as members of the Council, this is not the case
for the second consent. For the duty to accede to the Convention expressed
in Article 6(2) TEU will only bind the Union – and its institutions – but not
the Member States.
Governmental Powers476
4. The ‘Incorporation Doctrine’: EU Fundamental Rights and
National Law
European fundamental rights are of course binding on the European Union to
which they are addressed.147
Yet will they also bind the Member States?
Two options here exist. According to a ‘separation model’, European fundamental
rights exclusively apply to the Union, while national fundamental rights
exclusively apply to the Member States.148
By contrast,according to an‘incorporation
model’, European fundamental rights are ‘incorporated’ into the national
legal orders and thus apply to European as well as national authorities by virtue
of the fact that they always concern Union rights that must be guaranteed regardless
of who interferes with them.
The European Union has, like the United States today,149
chosen a solution
in between these two extremes. While rejecting ‘total’ incorporation, it
has developed a doctrine of ‘selective’ incorporation whereby EU fundamental
rights may – in certain situations – directly apply to the Member States.150
This
fourth – and final – section analyses those situations in which the Union’s three
bills of rights have been found to apply to national authorities.
a. Incorporation and General Principles: Implementation and Derogation
The incorporation doctrine started out in the context of the Union’s general
principles jurisprudence. The need for such a doctrine in this context could
have been doubtful in light of the fact that EU fundamental rights here are a
product of the common constitutional traditions of the Member States. How
can there be a need for incorporation? The answer lies in the Union’s autonomous
human rights standard that may be higher than a particular national
147
Fundamental rights can of course be invoked against the Union legislature as well as the
Union executive; and as regards the latter, the Court has recently held that EU fundamental
rights will even bind the Union institutions when acting ‘outside the EU legal
framework’ (see Joined Cases C-8/15P to C-10/15P, Ledra and others v. Commission and
European Central Bank,EU:C:2016:701,para.67).The Court here held that whenever the
Commission acts – even outside EU law – it would be bound by EU fundamental rights.
148
This separation model originally applied in US constitutionalism, because the federal Bill
of Rights was here seen to be exclusively addressed to the Union; and it therefore could
not bind the States, see Barron v. Mayor of Baltimore, 32 US (7 Pet) 243 (1833).
149
With the rise of the doctrine of incorporation in the early twentieth century, the US
(federal) Bill of Rights started to be considered to also apply to the States. See Gitlow
v. New York 268 US 652 (1925). For a comparison between the US and the European
incorporation doctrines,see R.Schütze,‘European Fundamental Rights and the Member
States: From “Selective” to “Total” Incorporation?’ (2011–12) 14 CYELS 337.
150
The question of incorporation is distinct from the question of direct effect.The doctrine
of direct effect concerns the question whether provisions are sufficiently clear and precise.
If they are,fundamental rights (like any ordinary European law) will need to be applied by
the executive and judicial branches. By contrast, the doctrine of incorporation concerns
the addressee, that is the question against whom they can be applied, in this case: whether
European human rights may – exceptionally – also be addressed to the Member States.
Judicial Powers III 477
standard.151
National legislation may thus respect national human rights, and
yet violate the (higher) European standard.The Court has thus indeed invented
an ‘incorporation doctrine’ for the general principles of the Union legal order.
However,this European incorporation doctrine is‘selective’in that it only applies
in two situations.The first situation concerns the implementation of European
law (implementation situation).The second situation concerns derogations from
European law (derogation situation).
The Court expressly confirmed that EU human rights bind national
authorities when implementing European law in Wachauf.152
European fundamental
rights would be ‘binding on the Member States when they implement
[European] rules’.153
What is the constitutional rationale behind this?
Incorporation has here been justified on the grounds that the Member
States functionally act as the Union’s decentralised executive branch.154
It
would be – black – magic, so the argument goes, if the Union could escape
its human rights control by leaving the implementation of controversial
European policies to the Member States. Individuals will thus be entitled to
challenge national acts executing European law if they violate fundamental
European rights. But while this is a reasonable rationale in situations in which
the Member States strictly execute European law to the letter, should it also
extend to situations where the Member States are left with autonomous discretion?
This tricky question appears, in principle, to be answered in the
positive.155
151
On this point, see section 1(a/aa) above.
152
Case 5/88, Wachauf v. Bundesamt für Ernährung und Forstwirtschaft [1989] ECR 2609.The
idea had been implicit in the (earlier) Rutili ruling.
153
Case 5/88, Wachauf, para. 19 (emphasis added).
154
On the Member States acting as the Union executive, see Chapter 9, section 4.
155
Three cases support this point. In Case 5/88, Wachauf, the Court expressly referred to the
margin of appreciation left to the Member States in the implementation of European law
(para. 22):‘The [Union] regulations in question accordingly leave the competent national
authorities a sufficiently wide margin of appreciation to enable them to apply those rules
in a manner consistent with the requirements of the protection of fundamental rights,
either by giving the lessee the opportunity of keeping all or part of the reference quantity
if he intends to continue milk production, or by compensating him if he undertakes to
abandon such production definitively.’ Second, in Case C-2/92, The Queen v. Ministry of
Agriculture, Fisheries and Food, ex p. Dennis Clifford Bostock [1994] ECR I-955), the plaintiff
brought proceedings against the British Ministry of Agriculture, arguing that the United
Kingdom had violated his property rights by failing to implement a compensation
scheme for outgoing tenants and thus wrongly implementing European agricultural legislation.While
finding that the European legislation did not require such a compensation
scheme,the Court nonetheless examined whether European fundamental rights had been
violated by the national legislation. This was confirmed in Case C-275/06, Promusicae
v. Telefónica de España [2008] ECR I-271.The case will be discussed in section 4(b/aa)
below. However, there are also judicial authorities against extending the implementing
situation to cases where the Member States go beyond minimum harmonisation; see
Case C-2/97, Società italiana petroli SpA (IP) v. Borsana [1998] ECR I-8597, esp. para. 40:
‘Since the legislation at issue is a more stringent measure for the protection of working
Governmental Powers478
The Court has also come to accept a second situation in which European
human rights are ‘incorporated’.This is the case when Member States ‘derogate’
from European law.This ‘derogation situation’ was first accepted in ERT.156
The
plaintiff had been granted an exclusive licence under Greek law to broadcast
television programmes, which had been violated by a local television station. In
the course of national proceedings, the defendant claimed that the Greek law
restricted its freedom to provide services protected under the European Treaties
and also violated its fundamental right to freedom of expression. In a preliminary
ruling, the European Court held that where a Member State relied on
European law ‘in order to justify rules which are likely to obstruct the exercise
of the freedom to provide services, such justification, provided by [Union] law,
must be interpreted in the light of the general principles of law and in particular
fundamental rights’.157
In this derogating situation, national rules would be subject
to European fundamental rights, in this case: freedom of expression.
The Court’s judgment in ERT was a silent revolution, since it implicitly overruled
an earlier decision to the contrary.158
The constitutional rationale behind
the derogation situation however remains contested.159
Moreover,the ERT judgment
was – as many revolutions are – ambivalent about its ambit.Would European
human rights apply to national measures even outside the ‘derogation situation’?
A wider rationale had indeed been suggested in one part of the ERT judgment
that simply spoke of national rules falling within the scope of European law.160
And while it is clear that a national law must first fall within the scope of
European law,161
the relationship between the derogation rationale and the wider
conditions compatible with theTreaty and results from the exercise by a Member State of
the powers it has retained pursuant to Article [153] of the [FEU] Treaty, it is not for the
Court to rule on whether such legislation and the penalties imposed therein are compatible
with the principle of proportionality’; Case C-6/03, Deponiezweckverband Eiterköpfe v.
Land Rheinland-Pfalz [2005] ECR I-2753.
156
Case C-260/89,Elliniki RadiophoniaTiléorassi (ERT) et al. v.Dimotiki Etairia Pliroforissis and
Sotirios Kouvelas and Nicolaos Avdellas et al. [1991] ECR I-2925.
157
Ibid., para. 43 (emphasis added).
158
In Cases 60 and 61/84, Cinéthèque SA and others v. Fédération nationale des cinémas français
[1985] ECR 2605.
159
See in particular F. Jacobs, ‘Human Rights in the European Union: The Role of the
Court of Justice’ [2001] EL Rev. 331 at 336–7; P. M. Huber,‘The Unitary Effect of the
Community’s Fundamental Rights:The ERT-Doctrine Needs to Be Revisited’(2008) 14
European Public Law 323 at 328:‘Though this concept is approved from various sides, it is
neither methodologically nor dogmatically convincing.’
160
Case C-260/89,ERT,para.42:‘[W]here such rules do fall within the scope of [European]
law, and reference is made to the Court for a preliminary ruling, it must provide all the
criteria of interpretation needed by the national court to determine whether those rules
are compatible with the fundamental rights the observance of which the Court ensures
and which derive in particular from the European Convention on Human Rights.’ In the
subsequent paragraph the Court then refers to the derogation rationale as a ‘particular’
expression of this wider rationale.
161
See Case C-159/90, Grogan, in which the Court declared that the defendants could not
invoke their European fundamental right to freedom of expression against Irish legislation
Judicial Powers III 479
scope rationale has never been conclusively resolved.162
And even if the wider
rationale is the right one,the question remains what exactly is meant by the phrase
‘the scope of European law’.Various meanings here compete with each other.
First,the Court may identify the scope of European law with the scope of existing
European legislation.163
Second, the formulation could refer to the Union’s legislative
competences.164
(This would broaden the applicability of incorporation to areas
in which the Union has not yet adopted positive legislation.) Finally, the Court
might wish to include all situations that fall within the scope of theTreaties,period.
b. Incorporation and the Charter of Fundamental Rights
aa. General Rules for All Member States
Will the ‘Charter of Fundamental Rights of the European Union’ be binding on
the Member States?The Charter answers this question in Article 51 establishing
its field of application:
prohibiting activities assisting abortion.According to the European Court, the defendants
had not distributed information on abortion clinics on behalf of those clinics and it
thus followed that ‘the link between the activity of the students’ associations of which Mr
Grogan and the other defendants are officers and medical terminations of pregnancies
carried out in clinics in another Member State is too tenuous for the prohibition on the
distribution of information to be capable of being regarded as a restriction within the
meaning of … the Treaty’ (ibid., para. 24).The national legislation thus lay outside the
scope of European law (ibid., para. 31).
162
See Case C-299/95, Kremzow v. Austria [1997] ECR I-2629, para. 16:‘The appellant in
the main proceedings is an Austrian national whose situation is not connected in any way
with any of the situations contemplated by the Treaty provisions on freedom of movement
for persons.Whilst any deprivation of liberty may impede the person concerned
from exercising his right to free movement, the Court has held that a purely hypothetical
prospect of exercising that right does not establish a sufficient connection with
[European] law to justify the application of [European] provisions[.]’
163
See Case C-309/96, Annibaldi v. Sindaco del Comune di Guidonia and Presidente Regione
Lazio [1997] ECR I-7493, paras. 21 and 24:‘Against that background, it is clear, first of
all,that there is nothing in the present case to suggest that the Regional Law was intended
to implement a provision of [Union] law either in the sphere of agriculture or in that of
the environment or culture … Accordingly, as [European] law stands at present, national
legislation such as the Regional Law, which establishes a nature and archaeological park
in order to protect and enhance the value of the environment and the cultural heritage
of the area concerned, applies to a situation which does not fall within the scope of
[European] law.’See also Case C-323/08 Rodríguez Mayor v.Herencia yacente de Rafael de las
Heras Dávila [2009] ECR I-11621,para.59:‘However,as is clear from the findings relating
to the first two questions, a situation such as that at issue in the dispute in the main proceedings
does not fall within the scope of Directive 98/59, or, accordingly, within that of
[Union] law.’
164
This appears to be the meaning of the phrase in Joined Cases 60–1/84, Cinéthèque, para.
26:‘Although it is true that it is the duty of this Court to ensure observance of fundamental
rights in the field of [European] law, it has no power to examine the compatibility
with the European Convention of national legislation which concerns, as in this case, an
area which falls within the jurisdiction of the national legislator.’
Governmental Powers480
The provision clarifies that the Charter is in principle addressed to the Union,
and will only exceptionally apply to the Member States ‘when they are implementing
Union law’.This codifies the Wachauf jurisprudence.The article is, however,
silent on the second scenario: the derogation situation.
Is the incorporation doctrine under the Charter thus more ‘selective’? The
‘Explanations’relating to the Charter are inconclusive.They state:‘As regards the
Member States, it follows unambiguously [sic] from the case-law of the Court of
Justice that the requirement to respect fundamental rights defined in the context
of the Union is only binding on the Member States when they are in the scope
of Union law.’166
The ‘Explanations’ then substantiate this statement by referring
both to Wachauf and ERT; yet ultimately revert to a formulation according to
which European fundamental rights ‘are binding on Member States when they
implement [Union] rules’.167
In light of this devilish inconsistency, the ‘Explanations’ have not much value.
The wording of Article 51, on the other hand, is crystal clear and could have
proven an insurmountable textual barrier.168
But it seems that the Court has
elected to extend its ‘general principles’ jurisprudence also to the Charter. In
Fransson,169
the Court thus gave an extremely broad reading to the ‘incorporation
situation’ within Article 51 of the Charter. It held:
165
Art. 51(1) of the Charter (emphasis added).
166
‘Explanations’ (n. 73 above), 32 (emphasis added).
167
Ibid. (emphasis added). The ‘Explanations’ here quote Case C-292/97, Karlsson [2000]
ECR I-2737, para. 37 (itself referring to Case C-2/92, Bostock, para. 16).
168
This view is taken by C. Barnard, ‘The “Opt-Out” for the UK and Poland from the
Charter of Fundamental Rights:Triumph of Rhetoric over Reality?’, in S. Griller and
J. Ziller (eds.), The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty?
(Springer, 2008), 256 at 263:‘Even if the explanations are wider, it is unlikely that they
will be used to contradict the express wording of the Charter since the Explanations are
merely guidance on the interpretation of the Charter.The Charter will therefore apply to
states only when implementing [European] law[.]’
169
Case C-617/10, Åklagaren v. Fransson, EU:C:2013:105.
The provisions of this Charter are addressed to the institutions, bodies, offices and
agencies of the Union with due regard for the principle of subsidiarity and to the
Member States only when they are implementing Union law. They shall therefore
respect the rights, observe the principles and promote the application thereof in
accordance with their respective powers and respecting the limits of the powers of
the Union as conferred on it in the Treaties.165
[T]he Charter’s field of application so far as concerns action of the Member States is
defined in Article 51(1) thereof, according to which the provisions of the Charter are
addressed to the Member States only when they are implementing European Union
law. That article of the Charter thus confirms the Court’s case-law relating to the
Judicial Powers III 481
extent to which actions of the Member States must comply with the requirements
flowing from the fundamental rights guaranteed in the legal order of the European
Union.
The Court’s settled case-law indeed states, in essence, that the fundamental
rights guaranteed in the legal order of the European Union are applicable in all
situations governed by European Union law, but not outside such situations. In
this respect the Court has already observed that it has no power to examine the
compatibility with the Charter of national legislation lying outside the scope of
European Union law. On the other hand, if such legislation falls within the scope
of European Union law, the Court, when requested to give a preliminary ruling,
must provide all the guidance as to interpretation needed in order for the national
court to determine whether that legislation is compatible with the fundamental
rights the observance of which the Court ensures (see inter alia, to this effect, Case
C-260/89 ERT [1991] I-2925) … Since the fundamental rights guaranteed by the
Charter must therefore be complied with where national legislation falls within the
scope of European Union law, situations cannot exist which are covered in that way
by European Union law without those fundamental rights being applicable. The
applicability of European Union law entails applicability of the fundamental rights
guaranteed by the Charter.170
170
Ibid., paras. 17–19 and 21. 171
Ibid., para. 24.
172
For a recent use of the broad‘all situations’formulation,see Case C-685/15,Online Games
and others, EU:C:2017:452, para. 55: ‘[Art. 51(1) of the Charter] confirms the Court’s
settled case-law, which states that the fundamental rights guaranteed in the legal order of
the European Union are applicable in all situations governed by EU law.’
In the present case, the Court thus found – over the protesting Member
States – that the relevant national measure had to be judicially reviewed in light
of EU fundamental rights because it was ‘connected’ to European Union law.171
This seems to identify ‘implementation’ with any action within the scope of
Union law – a reading that would naturally include the derogation situation.
But more than that: the ‘all situations governed by EU law’ formulation comes
close to a form of total incorporation, admittedly, within the scope of EU law.172
What does this generous incorporation doctrine mean for the relationship
between the (incorporated) European and a higher national human rights standard?
What happens, for example, where a Member State, when implementing
European law, respects the European standard but violates a higher national
standard? Should European law here prevent a Member State from applying its
higher standard to a situation governed by European law?The problem seems to
be addressed by Article 53 of the Charter, which states:
Nothing in this Charter shall be interpreted as restricting or adversely affecting human
rights and fundamental freedoms as recognised, in their respective field of application,
by Union law … and by the Member States’ constitutions.
Governmental Powers482
The provision has been said to challenge the supremacy of European law,173
yet the Court has expressly rejected this reading in Melloni.174
The Spanish
Constitutional Court here made a preliminary reference to the European Court
of Justice about the possibility of refusing to execute a European ArrestWarrant.
The wish not to extradite the Italian defendant stemmed from the Spanish constitutional
order insisting on an opportunity for retrial in cases where the original
conviction had been given in absentia.This opportunity did not exist in Italy,
and the question thus arose whether the higher Spanish fundamental right could
be invoked under Article 53 of the Charter to disapply the Union obligation
under the European arrest warrant.
The European Court of Justice had none of it:
173
For a discussion of this point, see J. B. Liisberg,‘Does the EU Charter of Fundamental
Rights Threaten the Supremacy of Community Law?’ (2001) 38 CML Rev. 1171.
174
Case C-399/11,Melloni v.Ministerio Fiscal,EU:C:2013:107.For an extensive discussion of
the case, and its context, see L. Besselink,‘The Parameters of Constitutional Conflict after
Melloni’ (2014) 39 EL Rev. 531.
175
Case C-399/11, Melloni, paras. 56–8 (emphasis added).
176
Liisberg,‘EU Charter of Fundamental Rights’ (n. 173 above) at 1198.
177
Case C-275/06, Promusicae v. Telefónica de España.
The interpretation envisaged by the national court at the outset is that Article 53
of the Charter gives general authorisation to a Member State to apply the standard
of protection of fundamental rights guaranteed by its constitution when that
standard is higher than that deriving from the Charter and, where necessary, to
give it priority over the application of provisions of EU law. Such an interpretation
would, in particular, allow a Member State to make the execution of a European
arrest warrant issued for the purposes of executing a sentence rendered in absentia
subject to conditions intended to avoid an interpretation which restricts or adversely
affects fundamental rights recognised by its constitution … Such an interpretation
of Article 53 of the Charter cannot be accepted. That interpretation of Article 53 of
the Charter would undermine the principle of the primacy of EU law inasmuch as it
would allow a Member State to disapply EU legal rules which are fully in compliance
with the Charter where they infringe the fundamental rights guaranteed by that
State’s constitution.175
Is Article 53 EU Charter therefore a – legally – meaningless political ‘ink-
blot’?176
This is not necessarily so,when viewed from the – right – perspective of
the principle of pre-emption. Article 53 here simply states that a higher national
human rights standard will not be pre-empted by a lower European standard as
regards the validity of national law.
An illustration of the parallel application of European and national fundamental
rights can be seen in Promusicae v. Telefónica de España.177
Representing
producers and publishers of musical recordings, the plaintiff had asked the
defendant to disclose the identities and physical addresses of persons whom
it provided with Internet services.These persons were believed to have used
Judicial Powers III 483
the KaZaA file exchange programme, thereby infringing intellectual property
rights.The defendant refused the request on the grounds that under Spanish
law such a disclosure was solely authorised in criminal – not civil – proceedings.
Promusicae responded that the national law implemented European
law, and it consequently had to respect the European fundamental right to
property.
The question before the European Court therefore was this: must Articles 17
and 47 of the Charter‘be interpreted as requiring Member States to lay down,in
order to ensure effective protection of copyright, an obligation to communicate
personal data in the context of civil proceedings’?178
Not only did the Court
find that there was no such obligation, it added that the existing European legislation
would ‘not preclude the possibility for the Member States of laying down
an obligation to disclose personal data in the context of civil proceedings’.179
A
higher national standard for the protection of property was thus not prohibited.
However, this higher national standard would need to be balanced against ‘a further
[European] fundamental right, namely the right that guarantees protection
of personal data and hence of private life’.180
And it was the obligation of the
national court to reconcile the two fundamental rights by striking‘a fair balance’
between them.181
This jurisprudence has been confirmed in Fransson.182
The decisive criterion
as to when a higher national fundamental right standard may still apply
in a situation governed by EU law seems therefore to be whether EU law
entirely or partially ‘determines’ (or ‘pre-empts’) a situation. Where it completely
pre-empts national law, the higher national standard cannot apply. By
contrast, where EU law leaves a margin of discretion to national law and that
national law does not conflict with European law, the higher national standard
will be allowed.
bb. Special Rules for Poland and the United Kingdom
The general rules governing the relationship between the Charter and the
Member States are qualified for Poland and the United Kingdom.The two States
have a special Protocol that governs the application of the Charter to them.183
178
Ibid.,para.41.Arts.17 and 47 of the Charter protect,respectively,the right of property and
the right of an effective remedy.
179
Ibid., para. 54.
180
Ibid., para. 63.
181
Ibid., paras. 65 and 68.
182
Case C-617/10, Åklagaren v. Fransson, esp. para. 29.
183
Protocol No. 30 on the Application of the Charter of Fundamental Rights of the
European Union to Poland and to the United Kingdom. The European Council had
originally agreed that the Czech Republic would be added to Protocol No. 30; see
European Council (29–30 October 2009), Presidency Conclusions – Annex I: (Draft)
Protocol on the Application of the Charter of Fundamental Rights of the European
Union to the Czech Republic. However, the current Czech government appears to have
formally withdrawn the request to be included in Protocol No. 30.
Governmental Powers484
The Protocol is not a full ‘opt-out’ from the Charter. It expressly requires ‘the
Charter to be applied and interpreted by the courts of Poland and the United
Kingdom’.184
The Court has confirmed this reading in NS:‘Protocol (No. 30)
does not call into question the applicability of the Charter in the United Kingdom
or in Poland.’185
However, opinions differ as to whether the Protocol constitutes
a simple clarification for the two States – not unlike the ‘Explanations’;186
or
whether it does indeed represent a partial opt-out by establishing special principles
for the two countries.187
The two Articles that make up the Protocol state:
184
Protocol No. 30, preamble 3.
185
Joined Cases C-411/10 and C-493/10, NS v. Secretary of State for the Home Department
[2011] ECR I-13905, para. 119.
186
Protocol No. 30, preamble 8: ‘Noting the wish of Poland and the United Kingdom to
clarify certain aspects of the application of the Charter’. For a sceptical view on the purpose
of the Protocol, see M. Dougan,‘The Treaty of Lisbon 2007:Winning Minds, Not
Hearts’ (2008) 45 CML Rev. 617 at 670:‘[T]he Protocol’s primary purpose is to serve as
an effective political response to a serious failure of public discourse. Indeed, the Protocol
emerges as a fantasy solution to a fantasy problem[.]’
187
Ibid., preamble 10:‘Reaffirming that references in this Protocol to the operation of specific
provisions of the Charter are strictly without prejudice to the operation of other
provisions of the Charter.’
Article 1
1. The Charter does not extend the ability of the Court of Justice of the European
Union, or any court or tribunal of Poland or of the United Kingdom, to find that
the laws, regulations or administrative provisions, practices or action of Poland or
of the United Kingdom are inconsistent with the fundamental rights, freedoms
and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter
creates justiciable rights applicable to Poland or the United Kingdom except in so
far as Poland or the United Kingdom has provided for such rights in its national
law.
And:
Article 2
To the extent that a provision of the Charter refers to national laws and practices,
it shall only apply to Poland or the United Kingdom to the extent that the rights or
principles that it contains are recognised in the law or practices of Poland or of the
United Kingdom.
In what ways, if any, do the two articles establish special rules qualifying any
incorporation under Article 51 of the Charter? According to Article 1(1) of the
Protocol, the Charter must not extend the review powers of the national courts
to find national laws of these States incompatible with European rights. This
Judicial Powers III 485
provision appears to assume that the Charter rights go beyond the status quo
offered by the Union’s unwritten bill of rights.This is not (yet) certain, but if the
Court were to find Charter rights that did not correspond to human rights in
theTreaties, then Poland and the United Kingdom would not be bound by these
‘additional’rights when implementing European law.188
The Protocol would consequently
constitute a partial opt-out from the Charter.This is repeated ‘for the
avoidance of any doubt’ in the context of the ‘solidarity’ rights in Article 1(2).189
But what is the constitutional purpose behind Article 2 of the Protocol?
In order to understand this provision, we need to keep in mind that some
Charter  rights expressly refer to ‘national laws governing the exercise’ of a
European right.190
Take for example the ‘right to marry and right to found a
family’– a right of particular concern to Poland.191
According to Article 9 of the
Charter ‘[t]he right to marry and the right to found a family shall be guaranteed
in accordance with the national laws governing the exercise of these rights’.
Assume that the Court confirms the existence of a directly effective European
right that would, in implementing situations, bind the Member States.Would 28
different national laws govern the exercise of this right? Or would the Court
revert to the common constitutional traditions of the Member States? And even
if the former were the case, could a couple consisting of a Spaniard and a Pole
claim a right to celebrate their same-sex marriage – a marriage that is allowed in
Spain but prohibited in Poland? To avoid any normative confusion,Article 2 of
the Protocol thus clarifies that any reference to national laws and practices only
refers to ‘law or practices of Poland or of the United Kingdom’.
188
It is not yet certain whether the Court will follow this logic. In Joined Cases C-411/10
and C-493/10, NS, the Court seemed to reduce Art. 1(1) to a simple explanation of Art.
51 (ibid., para. 120):‘Article 1(1) of Protocol (No 30) explains Article 51 of the Charter
with regard to the scope thereof and does not intend to exempt the Republic of Poland
or the United Kingdom from the obligation to comply with the provisions of the Charter
or to prevent a court of one of those Member States from ensuring compliance with
those provisions.’
189
And yet,this might only be true for Britain as Declaration No.62 looks like a Polish‘optout’
from the opt-out in Protocol No. 30. It states: ‘Poland declares that, having regard
to the tradition of social movement of “Solidarity” and its significant contribution to the
struggle for social and labour rights, it fully respects social and labour rights, as established
by European Union law, and in particular reaffirmed in Title IV of the Charter of
Fundamental Rights of the European Union.’
190
The following Charter rights use this phrase: Art. 9 – ‘Right to marry and to found a
family’; Art.10 –‘Freedom of thought,conscience,and religion’; Art.14 –‘Right to education’;
Art. 16 – ‘Freedom to conduct a business’; Art. 27 – ‘Workers’ right to information
and consultation within the undertaking’; Art. 28 – ‘Right of collective bargaining
and action’; Art. 30 – ‘Protection in the event of unjustified dismissal’; Art. 34 – ‘Social
security and social assistance’; Art. 35 – ‘Health care’;Art. 36 – ‘Access to services of general
economic interest’.
191
Declaration No. 61 by the Republic of Poland on the Charter of Fundamental Rights of
the European Union:‘The Charter does not affect in any way the right of Member States
to legislate in the sphere of public morality, family law, as well as the protection of human
dignity and respect for human physical and moral integrity.’
Governmental Powers486
c. Incorporation and the European Convention on Human Rights?
All Member States are formal parties to the European Convention,and therefore
directly bound by it. Is there thus any need for an incorporation doctrine once
the European Union accedes to the ECHR?
The answer is – surprisingly – ‘Yes’. For while the substantive human rights
standard established by the Convention is, after accession, likely to be the same
for the Union and its Member States, the formal legal effects of the Convention
will differ. As an international agreement, the European Convention currently
only binds the Member States under classic international law; and under classic
international law, States remain free as to which domestic legal status to grant
to an international treaty. For a majority of Member States,192
the Convention
indeed only enjoys a status equivalent to national legislation, that is: it is placed
below the national constitution. In the event of a conflict between a European
Convention right and a national constitution, the latter will prevail.193
This normative hierarchy will change when the Union becomes a party to
the European Convention.For once the Convention has become binding on the
Union, it will also bind the Member States qua European law.This follows from
Article 216 TFEU, according to which ‘[a]greements concluded by the Union
are binding upon the institutions of the Union and on its Member States’.194
The
provision ‘incorporates’ all Union agreements into the national legal orders.195
The European Convention will thus be doubly binding on the Member States:
they are directly bound as parties to the Convention and indirectly bound as members
of the Union.And,with regard to the binding effect of the Convention qua
European law, the Convention will have a hierarchical status above the national
constitutions.
d. Excursus: Human Rights and Private Party Actions
This section has so far explored whether national authorities could be subject to
EU fundamental rights.A very different question however is this: should fundamental
rights also apply to private parties?
192
On this point, see N. Krisch,‘The Open Architecture of European Human Rights Law’
(2008) 71 MLR 183 at 197:‘[F]rom the perspective of the domestic courts national constitutional
norms emerge as ultimately superior to European human rights norms and
national courts as the final authorities in determining their relationship. This seems to
hold more broadly: asked about their relationship to Strasbourg, 21 out of 32 responding
European constitutional courts declared themselves not bound by ECtHR rulings.’
193
For the German legal order, see the relatively recent confirmation by the German
Constitutional Court in Görgülü (2 BvR 1481/04) available in English, at: www.bverfg
.de/entscheidungen/rs20041014_2bvr148104en.html.
194
Emphasis added.
195
A. Peters, ‘The Position of International Law within the European Community Legal
Order’ (1997) 40 German Yearbook of International Law 9–78 at 34: ‘transposing international
law into [European] law strengthens international rules by allowing them to partake
in the special effects of [European] law’.
Judicial Powers III 487
Traditionally, fundamental rights are solely addressed to public authorities.
They are designed to protect private individuals against public power; and, as
such, they will not address situations in which a private party violates another
private party’s fundamental rights. But if a private company systematically pays
women less than men, does this not also violate the fundamental principle of
equal treatment? For many legal orders, the answer here depends on the comparability
of private and public conduct.Although State action generally covers
everyone, private actions may only apply to a limited number of persons;
and in safeguarding private choices – even morally indefensible ones – classic
constitutional doctrine generally denies the direct application of fundamental
rights to private parties. Nonetheless, in seeing fundamental rights as objective
values, some constitutional orders accept their indirect or limited direct
application.196
How has the European constitutional order solved this question? Some articles
of the European Treaties have indeed been found to address private as well
as public parties.197
By contrast, the European Convention on Human Rights
is not addressed to private actions; and the argument has been extended to the
Charter.198
Yet even if the Charter does not directly apply to private parties, it
may, as we saw above, still have an indirect effect whenever the Court uses it to
interpret European primary or secondary law.
Conclusion
The protection of human rights is a central task of the European judiciary.
Unfortunately, the Union has not reserved one place for human rights, but has
instead developed three bills of rights. Its unwritten bill of rights results from
the general principles of Union law; the Charter of Fundamental Rights adds a
written bill of rights for the Union; and the European Convention on Human
Rights has provided an external bill of rights – even prior to formal accession
by the Union. This chapter has analysed these three bills of rights and their
respective relations to each other.The picture shown in Figure 12.4 has thereby
emerged.
The EU’s human rights ‘surplus’ has created a range of technical problems.
We saw above, that the complexity of the Union’s fundamental rights regime is
196
For German constitutionalism, see BVerfGE 7, 198 (Lüth).
197
See Art. 157 TFEU on the right to equal pay, which the Court held to apply to private
parties in Case 43/75, Defrenne v. Sabena [1976] ECR 455, para. 39: ‘The prohibition
on discrimination between men and women applies not only to the action of public
authorities, but also extends to all agreements which are intended to regulate paid labour
collectively, as well as to contracts between individuals.’
198
P. Craig, The LisbonTreaty: Law, Politics, andTreaty Reform (Oxford University Press, 2010):
‘[The Charter] will not bind private parties such as employers.’ If this view is accepted,
there will indeed exist ‘an uneasy tension in normative terms between the solely vertical
scope of the Charter rights, when compared to the vertical and horizontal scope of some
Treaty articles’ (ibid., 209).
Governmental Powers488
mainly rooted in the parallel coexistence of three sources of fundamental rights.
For even if the EU Charter has become the primary instrument for the judicial
review on fundamental right grounds, the relationship between the Charter and
the EU Treaties (and the ECHR) is still not perfectly clarified.With regard to
the EUTreaties, it thus continues to be unclear to what extent the more specific
provisions within the Treaties will always determine the substantive outcome in
a human rights challenge; and, as regards the ECHR, there remains some doubt
as to what extent the Treaties and the Charter are (materially) bound by the
Convention standard.
A second major complexity has arisen out of the coexistence of European and
national fundamental rights. For instead of choosing either a simple separation
model or a simple incorporation model, the Union has chosen a selective incorporation
model according to which the Member States are sometimes bound
by EU fundamental rights. Unlike the US legal order, incorporation thereby
does not depend on which fundamental right is at stake but rather depends on
the situation in which a Member State acts. Classically, if a State adopts national
measures to implement or derogate from European law, it will be bound by EU
fundamental rights; and nationals of that Member State can thus invoke these
EU fundamental rights against their own State.
FURTHER READING
Books
P.Alston (ed.), The EU and Human Rights (Oxford University Press, 1999)
E. Ellis (ed.), The Principle of Proportionality in the Laws of Europe (Hart, 1999)
S.Morano-Foadi and L.Vickers,Fundamental Rights in the EU:A Matter forTwo Courts
(Hart, 2017)
S. Peers et al. (eds.), The EU Charter of Fundamental Rights: A Commentary (Hart,
2014)
T.Tridimas, The General Principles of EU Law (Oxford University Press, 2007)
S. de Vries et al. (eds.), The Protection of Fundamental Rights in the EU After Lisbon
(Hart, 2013)
Figure 12.4 Relationship between the Union’s Three ‘Bills of Rights’
Unwritten Bill
General Principles
Member State Constitutions
ECHR ECHR
ECHR
Charter
Written Bill External Bill
Judicial Powers III 489
S. de Vries et al. (eds.), The EU Charter of Fundamental rights as a Binding Instrument
(Hart, 2015)
A. Williams, EU Human Rights Policies: A Study in Irony (Oxford University Press,
2004)
Articles (and Chapters)
L. Besselink, ‘Entrapped by the Maximum Standard: On Fundamental Rights,
Pluralism and Subsidiarity in the European Union’ (1998) 35 CML Rev. 629
G.de Búrca,‘The Evolution of EU Human Rights Law’,in P.Craig and G.de Búrca
(eds.), The Evolution of EU Law (Oxford University Press, 2011), 465
J. Coppel and A. O’Neill,‘The European Court of Justice:Taking Rights Seriously?’
(1992) 29 CML Rev. 669
C. Costello, ‘The Bosphorus Ruling of the European Court of Human Rights:
Fundamental Rights and Blurred Boundaries in Europe’ (2006) 6 Human Rights
Law Review 87
S. Douglas-Scott,‘A Tale of Two Courts: Luxembourg, Strasbourg and the Growing
European Human Rights Acquis’ (2006) 43 CML Rev. 629
J. Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of
the EU Charter’s Principles in the Case Law of the Court of Justice’ (2015) 11
European Constitutional Law Review 321
K.Lenaerts,‘Exploring the Limits of the EU Charter of Fundamental Rights’(2012)
8 European Constitutional Law Review 375
J. B.Liisberg,‘Does the EU Charter of Fundamental RightsThreaten the Supremacy
of Community Law?’ (2001) 38 CML Rev. 1171
T.Lock,‘The Future of the European Union’sAccession to the European Convention
on Human Rights after Opinion 2/13: Is It Still Possible and Is It Still Desirable?’
(2015) 11 European Constitutional Law Review 239
D.Triantafyllou, ‘The European Charter of Fundamental Rights and the “Rule of
Law”: Restricting Fundamental Rights by Reference’ (2002) 39 CML Rev. 53
J. Weiler, ‘Fundamental Rights and Fundamental Boundaries: On Standards and
Values in the Protection of Human Rights’, in N. Neuwahl and A. Rosas (eds.),
The European Union and Human Rights (Brill, 1995), 51
J. Weiler, ‘Does the European Union Truly Need a Charter of Rights’ (2000) 6
ELJ 95
Cases on the Webpage
Case 1/58, Stork; Case 11/70, Internationale Handelsgesellschaft; Case 4/73, Nold; Case
5/88, Wachauf; Case C-260/89, ERT; Case C-84/95, Bosphorus; Case C-402/05P,
Kadi; Case C-275/06, Promusicae v. Telefonica; Case C-34/09, Zambrano; Case
C-407/08P, Knaut Gips; Joined Cases C-92–3/09, Schecke & Eifert; Joined Cases
C-411 and 493/10, NS; Case C-617/10, Fransson; Case C-399/11, Melloni; Case
C-293/12, Digital Rights Ireland; Opinion 2/13 (ECHR Accession II)