'The distinctive character of the first (Community) pillar of the European Union can be seen not only in the kind of legal rules which are made under that pillar, but also in the relationship between those rules and rules of Member State law.' Explain.

Elizabeth Pearce

‘The distinctive character of the first (Community) pillar of the European Union can be seen not only in the kind of legal rules which are made under that pillar, but also in the relationship between those rules and rules of Member State law.’

Explain and discuss this statement.

In this essay I intend to explore the character of the European Community, explaining the different functions of different institutions involved in Law making and the different types of Laws made. I will also critically evaluate these rules and the relationship between them and rules of member state law. The relationship between European and national law has always been a 'classic' theme of European legal research, but it has gained new importance in recent years

The European Community is the Supranational organisation of (currently) 15 member states, including the United Kingdom, formed by the amalgamation of three other communities.

The European Community now forms the first pillar of the European Union and is the source of much of the law applicable in Member states. The treaty of the European Union (Maastricht treaty) came into force on November 1st 1993, and on this date it became legally correct to refer to the European Community- changing from the European Economic Community to signify that there has been a change of emphasis towards non-economic provisions such as citizenship.

The original three communities (the European Coal and Steel community, European Atomic Energy Community and the European Economic Community) were subsumed into only two communities; EURATROM (European Atomic Energy Community) and the European Community (as the policy areas of coal and steel transferred into the E.C treaty). Thus we now have two communities, but the E.C is the most important pillar of the E.U and the E.C treaty, as amended by the treaty on European Union, still dominates.

The Post- Maastricht European Union is composed of these 3 communities which form the first and central pillar of the E.U plus two other ‘pillars’ or frameworks for action. One pillar is in relation to common foreign affairs and security policy. The other is in relation to justice and home affairs (police and judicial co-operation in criminal matters).

Supranationalism is when states agree to a significant degree of integration by transferring sovereignty in relation to specified areas of activity to common institutions. It is this type of organisation that makes the European Community distinctive in its character. This makes direct law-making powers in these institutions and the supranational law supplants that of the individual states. What is covered by the European Community in terms of policy would be legally binding on every state. In a supranational organisation such as the European Community there are no exceptions, and there is no ‘opting out’; action is commonly binding.

On joining the European Community, each member state must ensure that E.C law would be properly recognised in their own national system. How each state does that depends entirely on their own constitutional laws. Some states will amend their written constitution. The UK, (which does not have a written constitution) enacted an Act of Parliament. This is a matter which I will later look at in more detail.

As already stated, the Community institutions have law making powers. Therefore, an important question arises; In which way do treaty provisions and secondary legislation apply within the legal orders of ...

This is a preview of the whole essay

As the European Court of Justice bases itself on the transfer of sovereign powers to the Communities, the doctrine of supremacy or primacy of community law has been expounded. Broadly speaking, Treaty provisions or rules of secondary legislation, which are applicable to circumstances within the national legal orders because of substance and purpose, do so and overrule any existing conflicting national rules, whatever the status of the latter.

The pronouncements of the ECJ on supremacy (or primacy) of Community law are therefore widely acknowledged. In Community case law, direct effect and supremacy were established in Case 26/62 Van Gend en Loos and Case 6/64 Costa v ENEL respectively. In Costa an action was brought in Italy against the nationalized National Electricity Board (ENEL) over a bill of 1,950 lire which then amounted to less than £1. Mr Costa claimed he was not obliged to pay the bill as the nationalisation legislation had infringed Italian and EC law. A reference was made by the Italian court under Art.234 EC (ex 177 EC). The Italian government argued that such a reference was “absolutely inadmissible” because the national court had to apply national law.

The European court of justice held that;

“By contrast with ordinary international treaties, the EEC 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.”

Thus, although this was a case which involved very little money, the principle that Community law prevails was established. If it was otherwise “the obligations under the Treaty would be called into question” by any subsequent national legislation the government of a Member State passed through its legislature. Costa developed this principle which had been set down one year earlier in Van Gend en Loos v Nederlanse Tarief commissie.

The treaties do not expressly mention the principle of supremacy, however, a number of provisions do require it; for the European Court of Justice the position is unequivocal. The case law is directed at the national courts who apply the law in the cases which come before them and apply effective remedies. Full recognition of the principle of supremacy was given in the case of R v Secretary for State for transport, Ex p. Factortame Ltd where it was established that Community law will prevail over inconsistent UK legislation, even where the legislation has been enacted by Parliament subsequent to the entry into force of the Community rule. For example, in Equal Opportunities Commission v Secretary of State for Employment , the House of Lords held that Employment Protection (Consolidation) Act 1978 requirements concerning periods of employment were contrary to European Law.

As mentioned before, when a state joins the European Community, it is obliged to reconcile its constitution with Community membership (by making provision for the application of Community law within its territory and for the supremacy of Community law over national law). There are two conceptions of international law that states may have, and upon these conceptions depends how states will make provision for Community law. The Monist approach is the theory that national and international law form part of one legal structure, in which international law is supreme. In countries that take the monist approach there is no reason why the national courts should not apply international law, provided the correct procedures have been gone through to establish them as part of the national system. Monist countries (such as France and the Netherlands) usually recognize the supremacy of treaty provisions when there is conflict with treaty provisions. The other approach is the Dualist approach, which holds that international law and national law are separate systems operating in different fields. Therefore, in countries which adopt this approach, international treaties won’t be applied by national courts until domestic legislation makes this possible. The UK is one such country, and therefore the European Communities Act 1972 was specifically enacted to make provision for UK membership of the Community. Sections 2 and 3 have the internally binding effect.

The types of rules made under the first pillar can be split into Primary Community Law and Secondary Community Law. Primary Community Law is composed of the various treaties on which the Community is founded. Treaty provisions are ‘directly applicable’ in all member states- they do not need further implementation from National courts. Provisions that are also said to be ‘directly effective’ create rights immediately enforceable by individuals. Such rights may be enforced ‘vertically’ (against the state) or horizontally (between individuals).

Secondary Community Law is again split into directly applicable laws and non-directly applicable laws. Regulations are of general application, binding in their entirety (horizontally and vertically), and directly applicable in all member states without the need for member states to enact these domestically. In direct contrast to the direct applicability of regulations, Art.249 EC (ex 189 EC) states that directives are addressed to Member States and are binding as to the result to be achieved. There is usually a time limit by which implementation should be achieved. It is still possible for a directive that has not been implemented to have direct effect i.e. of conferring rights on individuals in various circumstances.

For example, in the case of Van Duyn v The Home office the content of the directive is clear and concise. In this case, Van Duyn, a Dutch national sought a declaration that the UK government was wrong to deny her admission to take up employment with the Church of Scientology, a sect which the government considered undesirable. On a preliminary reference under Art.234 EC (ex 177 EC) the ECJ held that the Directive was directly effective. Craig and De Burca write in EU Law text, cases and materials;

“Directive 64/221 allowed Member States to take measures restricting the movement of non-nationals on grounds such as public policy, without defining the permissible range of non-nationals on grounds such as public policy concerns. Was this degree of discretion too great to permit a national court to say that the Directive prohibited a given State from adopting a particular restrictive measure? The ECJ ruled it was not, and that, by providing that measures taken on public policy grounds had to be based on the personal conduct of the individual, the directive had limited the discretionary power conferred on states. The obligation imposed was clear, precise and legally complete”

A directive may also be capable of having direct effect if the directive being relied upon by an individual in proceedings against an ‘emanation’ of state whether acting in its public or private capacity. In the important case of Case 271/91 Marshall v Southampton and South West Hampshire AHA the UK government had failed to properly implement the Equal Treatment Directive 76/207, which was held to be directly effective. Directives are only capable of having vertical effect and therefore not enforceable by the state against an individual.

Decisions are another type of secondary Community Law and may be made by the Council, or with the Council’s authority, by the Commission. They may be addressed to states, individuals or companies and are binding in their entirety. Decisions of the European Court of Justice are binding on national courts, and in these decisions, greater definition is given to the requirements of the EC Treaty consequent regulations and directives.

One of the outstanding achievements of the Court of Justice of the European Communities is that is has enforced the direct applicability of Community law despite the initial resistance of certain Member States, and has thus guaranteed the existence of the Community legal order. Therefore it would appear that importance of Community Law reflects the enormous power held by the institution and this is a distinctive characteristic of the first Pillar of the European Union.

Looking now at the relationship between the relationship between Member state Law and Community Law, It is quite apparent, through looking at the types of Community Law that there is a backdrop of the concept of autonomy of the community legal order. However, even if Community law constitutes a legal order that is self-sufficient in relation to the legal orders of the Member States, it does not mean that the Community Legal Order and the Legal systems of the Member States are totally superimposed on one another. The fact that they are applicable to the same people who simultaneously become citizens of national State and of the EU, negates such a rigid demarcation of these legal orders. Also, an approach such as this only becomes operational if it forms part of Member State Law; therefore the truth is that the Community legal order and the national legal orders are interlocked and interdependent.