The Direct Effect of Treaty Provisions
| Author | Anca-Magda Vlaicu |
| Pages | 235-249 |
Anca-Magda Vlaicu. Judge, Ph.D. candidate, Law Faculty, “Nicolae Titulescu”, Bucharest (e-mail: magda_vlaicu@yahoo.com).
Page 235
The purpose of the paper is to analyze the direct effect of Treaty provisions, starting from the moment when the doctrine of direct effect of Community law was created by ECJ up to the present time.
When the EC Treaty was drafted, the primary means by which Community law was thought to be enforced against the Member States was represented by the procedure set out in what is now article 226 EC; from its earliest case law until the present day, the Court has engaged in a prolonged and radical programme that has resulted in the judicial creation of a series of ways in which national courts, rather than the Court of Justice, are expected to play the main role in the enforcement of Community law against the Member States, national authorities and private parties.
Three principal means have been established: 1. the creation and subsequent expansion of the doctrine of direct effect; 2. the creation and subsequent expansion of the duty of consistent interpretation (also known as “indirect effect”); 3. the creation and subsequent expansion of the principle of states liability.
As pointed out before, this paper will analyze the doctrine of direct effect, focused on the direct effect of Treaty provisions; the importance of analysing the matter resides in the fact that thePage 236 topic dealt with is central to the study of EU law - it has been developed by the ECJ and it’s jurisprudence has become more complex over the years.
Thus, on the one hand, the doctrine of direct effect of EC law (which applies in principle to all binding Community law) presents major differences compared to the same notion in international law (notably referring to international treaties), and, on the other hand, the direct effect of EC law is one of the most important characteristics which define the relation between European law and domestic law and also the basis for supremacy of EC law.
In this context, the paper will analyze the meaning of the notion of “direct effect” (also making references to other close, but different notions – direct applicability, immediate applicability, invocability), will present the evolution of the notion and conditions under which Treaty provisions can achieve direct effect, as they derive from ECJ’ decisions, starting from vertical effect (raising EC law against the Member State or a state entity - in case of negative obligations, positive obligations, incomplete implementation of principles stipulated by Treaties, as a result of non-taking of appropriate measures at Community level), to horizontal effect (invoking EC law among private parties), and finally to the indirect effect (duty of consistent interpretation, requiring all national legislation to be interpreted in the light of the EC law by national courts).
The paper will also summarize, consequent to the presentation of the aspects indicated above, the meaning of the notion of “direct effect”, the actual conditions required for incidence in case of Treaty provisions, and the practical implications of the direct effect of Treaty provisions, both socially, and financially.
At the same time, in close relation to the presentation of ECJ’ decisions, the paper intends to present the main academic debates on the same issues (evolution of the notion and conditions for achieving direct effect), consequent to creation and evolution of the doctrine of “direct effect”.
The juridical literature relevant on the matter (1) emphasized that the starting point was the distinction between public and private enforcement - law can be enforced either through a public arm of government, which is accorded power to bring infringers to court, or through actions brought by private individuals, or an admixture of the two.
The Treaty embodied an express mechanism for public enforcement in Article 226, allowing the Commission to sue Member States before the ECJ for breach of Community law (this compulsory jurisdiction was itself unusual, since most international treaties contained no such mechanism). There are however limits to this kind of enforcement: on the one hand, the Commission did not have the institutional capacity to prosecute more than a tiny fraction of all possible infringements and therefore the remedy under article 226 was weak; on the other hand, the article could not be used against private individuals (2).
The ECJ therefore took the bold step of legitimating private enforcement by holding that Treaty articles could, subject to certain conditions, have direct effect, so that individuals could rely on them before their national courts and challenge inconsistent national action, thereby bringing individuals into the Community-legal order (this step had to be taken since the texts of the EC Treaties made no reference to the effect which their provisions were to imply, and thus the original Member States may not have thought that the provisions of these Treaties would be treated any differently from those of other international treaties).
In the same line of reasoning, other authors (3) pointed out that, when the EC Treaty was drafted, it was envisaged that the procedure as set out in what is now article 226 EC would be the primary means by which Community law is enforced against the Member States; still, the CourtPage 237 judicially created a series of ways in which national courts, rather than the Court of Justice, are expected to enforce Community law against the Member States, national authorities and private parties.
Three principal means established were: the creation and subsequent expansion of the law of direct effect (Van Gend en Loos and its progeny); the creation and subsequent expansion of the duty of consistent interpretation (also known as “indirect effect” - Von Colson and Marleasing); the creation and subsequent expansion of the principle of states liability (Francovich and Brasserie du Pêcheur/Factortame III).
The cases that have established and developed these principles are among the most important - and the most revolutionary - ever decided by the Court of Justice. The law that has been created in these decisions is, to a large extent, what marks the European Union out as being so different from other international organizations.
As for terminology, The ECJ used interchangeably the terms of “direct effect”, “direct applicability” and “immediate applicability”, which started a debate in juridical literature on whether they were synonyms or not and the meaning of each notion apart.
The English literature preferred the terminology of “direct effect” (4) and underlined a distinction between a broader and a narrower sense of the notion - in a broad sense, it means that provisions of binding EC law which are clear, precise, and unconditional enough to be considered justifiable can be invoked and relied on by individuals before national courts, and in the narrower (or classical) concept direct effect is defined in terms of the capacity of a provision of EC law to confer rights on individuals.
A part of French literature (5) opted for the term “direct applicability”, which meant that the European provision is unconditional and complete (it needs no transposition measures), pointing out that “direct effect” (in the narrow sense of the notion adopted by English literature) consisted in obtaining on the part of the national judge the application of the European norm in the case; therefore, concluded that the term “direct applicability” was preferable.
Also, they came to the conclusion that, at the present time, the criteria for recognizing direct effect reduce to a simple functional exigency, respectively a European provision has direct effect on the condition that it had characteristics to make it susceptible of jurisdictional application.
Connected to the “justiciability” of Community law, they stressed that a European provision fulfilled this condition even when the judge was called to appreciate upon it (which was not the case for legislative or executive appreciation); also, the “justiciability” depends on the type of application made by the national judge (in case of application of European law as a consequence of lack of national law relevant on the matter or in case of substitution of domestic law, the Community provision in discussion must be unconditional and sufficiently precise; in case that the national judge must appreciate upon compatibility between domestic and Community law, the latter was ”justiciable” even if domestic authorities possessed discretion on the matter, on the condition that it’s limits should be unconditional and sufficiently precise); finally, all Community law is ”justiciable” if it serves to interpretation of domestic law by a national judge.
Other French authors (6) made a difference between “invocability”, on the one hand, and “direct effect”, “direct applicability”, on the other hand, underlining that the expression “invocability” seemed to be preferred by the Court in case of certain secondary European law provisions (especially directives) in order to make a difference form other European law provisions (in case of which were generally used the expressions “direct effect”, “direct applicability”).
Others (7), using the expressions “direct effect”, “direct applicability” as ECJ did (interchangeably), mentioned generally that they referred to every individual’s right to ask thePage 238 national judge to apply treaties, regulations...
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