European law

States, and to the preliminary reference procedure in Article 234, which clearly envisages that parties could raise questions of Community law in the national courts. This illustrates that individual rights have become a part of the ECJ’s legal heritage.

It would appear that the key to the legal basis for the direct effect of Treaty Articles could be found in the method of interpretation used by the ECJ. This has been described as the purposive or teleological approach. Thus in Van Gend en Loos

Article 12 was interpreted in the light of the overall aims of the Community established by the EC Treaty. The court refers to the establishment of the common market, which suggests that the only aim of the creation of direct effect doctrine is to fulfil the aim of the EC. In general, it could be argued that the ECJ does not consider its role to be one of interpreting the bald text of the treaties, but it wants to identify what the goal of European law is and then interpret the article in conformity with that goal. Nevertheless, these aims are often set out in a broad term, for example the interpretative approach gives the ECJ a significant wide scope and the technical limit of the courts decision making are often weak.

In its subsequent case law, the ECJ went further and held that secondary legislation could also create directly effective rights, which individuals could rely upon in their national courts. This took place from the notion of Van Duyn v Home Office in

which, Mrs Van Duyn, a Dutch national, was entitled to invoke the provisions of EC Directive 64/221 to challenge a refusal to allow her to work in the United Kingdom.

This was pursued in Grad v Finanzamt Traunstein in which a decision addressed to

the German government was held to be directly effective.

However, limitations were placed on the doctrine of direct effect. These have to

ensure that national courts do not have difficulty in applying Community law and that the measure or provision in question must be unconditional and sufficiently precise,

along with leaving no discretion to the Member State as to how it should be implemented are not strictly applied. In Van Duyn, the ECJ stated that if there was doubt as to how a particular provision of Community law should be construed, the national court could refer the question to the ECJ under the preliminary reference procedure.

Directives are binding, ‘as to the result to be achieved’. They are binding on member states and do not bind individuals until they have been transposed into national law.

The legal basis for the direct effect of Directives is again highly controversial. The challenge to the legitimacy of the concept came is manifested from the French Conseil d’Etat, the highest court in France dealing with administrative law, which refused to give effect to it and from the Bundesfinanzhof, the German federal tax court who denied that directives had direct effect. Consequently, the ECJ considered this and placed limitations on the direct effect of directives.

The Court held that Directives are directly effective only once the time limit has expired this evident from the case of Pubblico Ministero v Ratti. What’s more, it was controversial when the question arose, whether Directives had horizontal direct effect as well as vertical direct effects .In Defrenne v SABENA  it was held that

Treaty provisions, in this case the provision for equal pay for equal work in Article 119, could be invoked against private employers. However, while the concept of horizontal direct effect added further protection to individuals’ Community law rights, at the same time it  appeared to breach the principle of legal certainty.

The question of whether Directives had horizontal direct effects arose in the case of Marshall v Southampton and South West Hampshire HA. This case concerned the effect of Directive 76/207 on Equal Treatment of Men and Women in Employment. The ECJ held that the Directive had direct effects, and the legal basis was stated to be that the State could not rely in court on its own failure to meet its obligations; given this legal basis, the Court then continued to hold that Directives therefore had vertical direct effect and not horizontal direct effect.

This issue however was subject to many criticisms and become more debatable as not everyone agreed to the requirement that directives should not have direct effect. Advocates General felt that granting horizontal direct effect to directives would remove distortions and inconsistencies created by the incremental way in which the law has developed on the bases of case law.

Article 249 explicitly provides that Regulations are to be directly applicable thus does not state that Directives are to have direct applicability. This would suggest that it was not the intention that individuals should be able to invoke the provisions of

Directives, which are addressed specifically to Member States, this issue was raised Van Duyn by the UK’s government.

Overall it would appear that the Court has acted less out of regard for strict legal principles and is more of a political body. Nevertheless, the Court was certainly influenced by the rebellion from the French Conseil d’Etat and the German Bundesfinanzhof. Anderson, writing at the time, commented that: “The present concern of the Court is to consolidate the advances of the 1970s rather than face the legal complexities and political risks of attempting to extend the doctrine further”.

It is likely in the light of Marshall, that decisions will also have vertical direct effect only.

The ECJ’s rejection to allow the horizontal direct effect of directives resulted in diminishing their effectiveness. In sequence to put this right they developed the doctrine of indirect effect. This concept was first introduced in the cases of von Colson and Kamann v Land Nordrhein-Westfalen and Harz v Deutsche Tradax GmbH, which came before the Court on the same day. The plaintiffs in both cases sought to invoke the provisions of Directive 76/207 (the Equal Treatment Directive) in almost identical circumstances. The distinction was that in von Colson the

Directive was being invoked against the German prison service (a public body) and in Harz the Directive was being invoked against a private employer.

The Directive in question had been implemented by the German authorities, but the implementing legislation did not appear to provide an adequate remedy as required by the Directive. The ECJ held that the national court was obliged to interpret the implementing legislation so as to give effect to the Directive. The case was referred back to the German Labour Court who re-interpreted the national law and awarded damages to the plaintiffs in both cases.

The court went further in Marleasing SA v La Comercial Internacional de Alimentación SA and held that the principle of indirect effect applied whether the national legislation being construed was enacted before or after the Directive. In that case the Spanish authorities made no attempt whatsoever to implement the Directive in question, so there was no question of assuming that the intention of the authorities had been to give effect to the Directive. This decision was based on the principle of the supremacy of EC law, again a principle which the ECJ managed to derive from the EC Treaty.

The doctrine of supremacy means that Community law takes precedence over confliction rules of national law. This was implied in Van Gend en Loos and in Costa v Enel. In Costa, the Court found that the treaty constituted a permanent limitation of the sovereign rights of the Member States. By taking into account the terms and the spirit of the treaty, the Court concluded that it was impermissible for a Member State to give precedence to its own laws over those of the Community, regardless of the constitutional status of the Treaty in domestic law. Furthermore, the

ECJ decided an extraordinary case which caused the principle of national law procedural autonomy to be rewritten. This happened due to the case Factortame in which the ECJ and the Parliament had conflicts. However the ECJ proved that it is the most superior court and all other national courts have to bind with its decisions.

The way EU has constitutionalised to make the treaty work is by putting it together and creating a system in order to bring all the members together in a common market. One of the main reason for creating direct effect is to make the EC law effective and for integration to take place. It gives the ability to rely on national court before the

ECJ and wants individual to rely on the national courts provision, if so this will indicate that the legal system functions. If one is enable to use the article then the common Market is going to fail to work. Therefore, the ECJ has created this doctrine in order to make the community system work.

On one hand, the ECJ is giving individuals rights but it also restricts individual’s rights to challenge any decision. The ECJ do not want individuals to challenge the

law, as it does not want anyone to challenge its validity. However restricting these rights may be justified by the fact that allowing individuals to challenge the ECJ decision can possibly open floodgates.

Judicial review is applicants stating that an institution has applied the legislation or an act unlawfully. The ECJ has revealed that acts other than recommendations and opinions may be challenged. The function of this system is to ensure that the community institutions behave within their respective ability as specified in the Treaty. The system of judicial review is complicated but it could be broken down into three separate actions. These are article 230 EC, Article 232 EC and article 288 EC.

Article 230, provides that a judicial is a mean of controlling the legality of the binding act of the Community institution. In other words it gives legal protection to those individuals whose rights could be negatively affected by the illegal conduct of the institution. However, there are certain grounds in sequence to bring a challenge. The treaty specifies the following grounds under which an action may be brought which are: lack of competence, infringement of an essential procedural requirement, and infringement of the treaty and any rule of law relating to its application along with misuse of powers.

The area that causes contentious are in regards to who can bring in an action. The treaty gives an automatic locus standi to the member states, the council of EU, the commission and, given the amendments made by the ToN, the EP. This shows an example of parliament sovereignty and its increasing powers. The ECJ has accepted the parliament’s right to bring in an action, this is evident from the Chernobyl case. 

The Court of Appeal and the ECB may commence an action, in cases where rights or interests are clearly affected. Furthermore, the treaty provides that any natural or legal person may bring an action where he is the addressee of a decision and there is a little

problem demonstrating locus standi in such situation.

Nevertheless, the treaty provides that where a decision has been addressed to another person, that person may bring in an action as long as they can demonstrate that the act has affected them directly and individually. This arose from the notion of the Plaumann test.  In Plaumann, the applicant was an importer of Clementine’s. He wanted to challenge a decision addressed to the German Government, as it allowed them to amend the duty on Clementine’s imported from outside the EC. The ECJ prescribed that, in order to demonstrate individual concern the applicant must be able to demonstrate that he was distinguishable from other persons generally, due to certain attributes or circumstances. In other words Plaumann had to show he was a member of a ‘closed class’. Yet, Plaumann failed in his action because any other person could have carried the commercial activity in which he was involved and therefore he was not a part of a closed class.

This test has been criticised, mainly due to it being restrictive, yet it remains the seminal case in this area. What’s more, it has been recently subject of judicial activity and academic speculation. AG Jacobs in the UPA case proposed that there should be a redefinition of the test for ‘individual concern’. This was later supported by the CFI in Jego Querre, suggesting that the rather narrow definition provided in Plaumann should be broadened and made easier to satisfy. However, this was rejected by the ECJ following that it was not for them to reform the conditions for lucus standi but rather it was a matter for legislation. This was rather amazing because the ECJ has previously in its willingness tried to ensure that citizens have sufficient opportunities to enforce their rights. Where there is a legislative act in question is a regulation the court has continued to apply the Plaumann test.

Once the applicant has demonstrated ‘individual concern, he must then prove that the act was of ‘direct concern’. Direct concern can be defined as measures of effects on an applicant. There is a time limit on brining an action, the claimant only has two months from the day it should have come to his attention.  

Actions under Article 232 can be seen as contrary to article 230. It provides that if the European parliament, the council or the commission, are in infringement of this treaty or fail to act, an action may be brought before the ECJ.

Community may be liable for wrongful acts on part of one institution and wrongful acts on part of its servants. In accordance the institution can be sued. In the case of faute personelle, the community was liable on the principle of vicarious liability albeit being interpreted in a narrow sense then in which it was understood.

In conclusion, the ECJ has taken a wide scope in order to maintain the common market and has made the law effective for all member states, hence achieving the aim of the ever closer union. The fact that it restricts individual rights does seem to be harsh, such as Plaumann but could be justifiable by the fact that it could possibly open flood gates. The ECJ is superior and will do all it could to maintain integration.  

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