The European Court of Justice and the Supremacy of Ec Law

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Last Updated: 04 Jul 2021
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In the making and promulgation of Community law, the European Court of Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are not to be found in the Treaties, or secondary EC legislation, but in the case law of the European Court. No provision of the Treaty on European Union (TEU) contains an express term regulating the issue of the supremacy between the Community and the various national laws of the Member States.

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The only implied reference to the issue of supremacy is Article 10[1] of the TEU which imposes a duty on all Member States to adopt appropriate measures to ensure that the obligations of the Treaty are observed, together with an additional duty to abstain from all acts which might jeopardise the achievement of the objectives of the Treaty. Article 10 states that: “Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community.

They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty. ”. Thus, the principle of the supremacy of Community law over national law was first established by the European Court of Justice whose role is explicitly stated in Article 220[2] of the TEU: “The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed. ”

Prior to an analysis of the doctrine of supremacy and the relevant case law and implementation of the doctrine, an introduction into the composition, structure and practices of the European Court of Justice (ECJ) will be followed.


• Composition and Structure The ECJ, to which the Court of First Instance (CFI) is attached, is the judicial branch of the Community. It has been described by Shaw as “a heroin figure in the development of the EU”. The ECJ, which sits in Luxembourg, now has 15 judges who are assisted by 9 Advocate-Generals (AGs).

Each Member State (MS) is entitled to appoint a judge of its own nationality. The appointment of all judges is required by Article 223 TEU[3] to be: “by common accord of the Governments of the Member States”. The term of office is six years and the appointment of new judges or reappointment (for another term) of the existing judges is staggered so that there will be a partial replacement of judges every 3 years. The judges select one of their number to be President of the Court for a renewable term of 3 years. The President directs the work of the Court and presides at hearings and deliberations.

The ECJ is assisted by 9 AGs. Five of the 9 AGs should be appointed by the 5 largest Member States, the remaining to be appointed by the other Member States on a system of rotation. Their duty, which is set out in Art. 222 TEU[4] is, “to make, in open court, reasoned submissions on cases brought before the ECJ” with complete impartiality and independence. [5] The qualifications for selection, method of appointment and conditions of office of the Attorney Generals are the same as for the judges of the Court. The qualifications for selection as a judge of the ECJ are stated in Article 223 TEU[6] and require: persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence. ” Furthermore, judges may not hold any other political or administrative office while they are members of the Court. In accordance with their respective traditions, certain Member States have appointed academics to sit as judges, whereas others – such as the U. K. – have nominated existing national judges or practicing advocates.

Although states tend to select their own nationals, the Treaty clearly requires that the judges be entirely independent of their national governments. Judging from the nature of the ECJ? s jurisprudence, the wishes of individual Member States have had little influence on its decisions-making. Under Article 221 TEU[7] the ECJ is permitted to sit in Chambers of 3 or 5 as well as in plenary session. The court will, however sit in plenary session when a Member State or a Community Institution which is party to the proceedings so requests, or in particularly complex or important cases.

The organisation of the Court is regulated by a separate Protocol to the EC Treaty – Protocol on the Statute of the Court of Justice. Matters of procedure are regulated by this Protocol, including the content of oral and written pleadings, citation of witnesses, costs and expenses etc. The problem of over burdening the Court apparently continues to grow[8] despite the temporary easing of the caseload which the establishment of the CFI, in 1988 initially brought about.

Other than the appeal on a point of law from the decisions of the CFI to the ECJ, there is no further appeal from the judgments of the ECJ, which is the ultimate or supreme Court of the EC. The Court of First Instance (CFI) • Composition The Single European Act, (1988) authorised the Council of Ministers to create a CFI to alleviate the volume of work before the ECJ. The aim of the creation of the CFI in 1989 was to strengthen the judicial safeguards available to individuals by introducing a second tier of judicial authority and enabling the ECJ to concentrate on its essential task, the uniform interpretation of Community law.

The CFI consists of 15 judges who are appointed by agreement between Member States for periods of 6 years. There are no permanent AGs. The duties of an AG are performed by one of the judges. • Jurisdiction The CFI does not extend the jurisdiction of the ECJ, but rather, it exercises certain aspects of the Court’s functions. The jurisdiction extends to the following classes of cases: - staff cases - competition cases - cases under the ECSC Treaty - anti-dumping cases It has no jurisdiction to hear preliminary rulings. Furthermore, according to Art. 25 TEU, decisions of the CFI are subject to an appeal to the ECJ on points of law only. Enforcement of EC Law in Domestic Courts Like any true legal system, the Community legal system needs an effective system of judicial safeguards when Community law is challenged or must be applied. The ECJ, as the judicial institution of the Community, is the backbone of that system of safeguards. It is responsible for interpreting questions of EC law and provision is made in the Treaty for references to the ECJ by national courts.

Decisions of the ECJ, upon a reference, are reached by majority vote and are binding on all domestic courts of all Member States. Under Article 234 TEU[9] it is provided that: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning a) The interpretation of the Treaty; b) The validity and interpretation of acts of the institutions of the Community… where such a question is raised before any court …of a Member State that court….. may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to give a ruling……..

Where any such question is raised……before a court of a Member State against whose decisions there is no judicial remedy under national law, the court……shall bring the matter before the Court. ” It is through this Article that the ECJ has achieved the principle of supremacy and its uniform application in all Member States when Community law may be in conflict with domestic legislation. In CILFIT (1983) the ECJ emphasised that the purpose of the then Art. 177 was to ensure the proper application and uniform interpretation of EC law in all Member States.

However, preliminary references procedure depends on the effectiveness of cooperation between the ECJ and national courts. The power to ask for a preliminary ruling rests solely with the national court and the power of the ECJ is limited to an interpretation of EC law[10]. In procedural terms, individuals still have no right of appeal to the ECJ and the national court can decide whether a reference is necessary; the Court? s judgements are still, in theory, at least, only given on points of interpretation and validity.

However, following the many changes that the Community has gone under, the ECJ? s role has been evolutionary, siting at the apex of the Community judicial hierarchy. The increasing emphasis which the ECJ places on Article 10 TEU, rendering Community law applicable to national courts as well as to the political arm of Member States, is merely one important manifestation of this process in operation. The Community as a whole is in a state of transition, and it would be surprising if the relationship between the ECJ and the national courts were to remain immune from the wider changes.

As the Community moves towards a closer social and political union, one could well expect the ECJ to cement its position at the apex of the judicial hierarchy.


The ECJ, as the guardian of legality and instrument of cohesion within the Community, has, from the start been in a strong position to define the status of Community law and to give it precedence when in conflict with the national legal systems of the various Member States. The first case where the Court made a statement on the nature of European law is the famous case of Van Gend en Loos v.

Netherlands (1963)[11] dealing with the principle of direct effect of EC Treaty provisions and the degree to which individuals can rely on such terms to challenge measures of national law. In that case, which will be dealt with in detail later on, the ECJ stated that: “The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states…

The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals”. The reasoning of the Court in the case is brief and apart from its elaboration on the concept of direct effect, where it stressed the need for direct enforcement by national courts of Community norms, little more was said about the need for national courts to accord primacy to EC law over conflicting national law.

The Court’s focus in Van Gend was on whether Article 12 (customs duties on imports from Member States to other Member States) could give rise to so-called direct effects - the immediate enforceability in national courts by individual applicants of Treaty provisions - so that an individual could rely on and have that Article enforced before domestic courts. The approach of the Court was based on the Court’s vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the effective creation of such a Community would necessitate.

It was in a second important case, two years later, however, that the ECJ expanded on its constitutional theory of the Community, declaring again that the states had created a sovereign Community by limiting their own sovereign rights. The case was Costa v. ENEL (1964)[12] and the facts were as follows: An individual was claiming before his local court that the law nationalising production and distribution of electricity was incompatible with the EC Treaty. The local court referred the question to the ECJ for a preliminary ruling.

The ECJ in its judgment emphasised the unlimited duration of the Community, the autonomy of Community power, both internally and externally, and especially the limitation of competence or transfer of powers from the states to the EC. The Court was determined to show that the “words and spirit of the treaty” necessarily implied that: “It is impossible for the states to set up a subsequent unilateral measure against a legal order which they have accepted on a reciprocal basis”.

The Court found the primacy of EC law confirmed by the wording of Article 189 EC Treaty[13] under which regulations have “binding” force and are “directly applicable in all Member States”. The Court pointed out that this provision which is not qualified by any reservation “would be meaningless if a state would unilaterally nullify its effect by means of legislative measures which could prevail over EC law”.

The Court was thus able to reach a conclusion in Costa in words which have become classic and have had considerable influence in national decisions: “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 Community law and without the legal basis of the Community itself being called into question.

The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail”. • As in the case of Van Gend, the Court made no reference to the constitution of any particular Member State to see whether such a transfer or limitation of sovereignty was contemplated or even was possible in accordance with that constitution. Furthermore, the Court drew on the “spirit and the aims” of the Treaty to conclude that it was “impossible” for the Member States to accord primacy to domestic laws. The spirit of the Treaty required that they all act with equal diligence to give full effect to Community laws which they had accepted on the basis of state “reciprocity” – meaning presumably that since each state was equally bound by laws passed for the Community as a whole, they had all agreed that no one of them would unilaterally derogate from Treaty obligations.

And since the “aims” of the Treaty were those of integration and co-operation, their achievement would be undermined by one Member State refusing to give effect to a Community law which, should bind all. In Van Gend and Costa v. Enel the Court set out its theorical basis for the principle of supremacy of Community law. The force and practical application of the principle became clearer still in its later decisions. In the following case, the Court made clear that the legal status of a onflicting national measure was not relevant to the question whether Community law should take precedence: not even a fundamental rule of national constitutional law could, of itself, be invoked to challenge the supremacy of a directly applicable EC law: Internationale Handelsgesellschaft v. Einfuhr (1970)[14] “Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law…….

The validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”. This decision gave rise for some time to a potentially serious deadlock in relations between the German Constitutional Court, which held that the Community deposit system breached a fundamental provision of the national legal order, and the ECJ, which denied that national constitutional principles could have any effect on the domestic applicability of Community law.

But far from backing off from its claims, the Court continued to emphasise the importance of ensuring that the supremacy of Community law was not simply a matter of principle or of theory only, but was given practical effect by all national courts in cases arising before them. It is however, interesting to note that following this case, the ECJ evolved the concept of EU fundamental rights declaring them to be general principles of law that the Court will apply within the framework of Community law

In Simmenthal SPA (1978)[15] an Italian judge was faced with a conflict between a Council Regulation on the common organisations of the market in beef and veal and the Italian veterinary and public health laws. Under Italian law, domestic legislation contrary to EC Regulations may be held to be unconstitutional but only by such declaration from the Constitutional Court and not by the ordinary courts. Should the Italian judge of First Instance disregard inconsistent national legislation without waiting for its repeal from the Constitutional Court?

In a reference to the ECJ on the question, the latter held that the national court was under a duty to give full effect to Community law even where there was a conflicting provision of national law and without waiting for a higher court to rule on the matter. “Every national court must……. apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule”.

Simmenthal is an interesting case, since it spells out the practical implications for the Community legal order of the principles of supremacy and direct effect. The facts of it highlighted a further problem for national courts: what if the national court was one which had no jurisdiction in the domestic legal system to question or to set aside national legislative acts?

The clear implication of the Court’s response was that, even if the only national court empowered to pronounce on the constitutionality of a national law is the Constitutional Court, nevertheless, if such a case arises before any other national court, that court is bound to give immediate effect to Community law without awaiting for the ruling of the Constitutional Court. We therefore see how Community law has “conferred” on domestic courts – indeed how it has required them to exercise – powers and jurisdiction which they did not have under national law.

The key emphasis in these decisions is on the principle of effectiveness. This certainly became clear in the U. K. after the ruling in the well-known Factortame litigation (1990)[16], on the question of interim relief against a provision of national law which appeared to conflict with one of Community law. The facts of the case were as follows: The U. K. Merchant Shipping Act 1988 operated to exclude from registration for purposes of fishing permits 95 fishing vessels owned by Spanish nationals who challenged the Act on the basis of breach of the EC Treaty – (discrimination by nationality).

The U. K. Court asked the ECJ for a preliminary ruling. In the meantime, interim relief was granted and then lifted on the basis that that remedy did not lie against the Crown in English law. The ECJ ruled that interim relief must be available and that this obligation overrode conflicting domestic principles. The domestic court was required to set aside national law, if that would have prevented the grant of interim relief giving effect to EC law. This was required to enable effective enforcement of Community law: ….. the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court……granting interim relief in order to ensure the full effectiveness of…Community law”. According to Lord Bridge of the House of Lords[17], “If the supremacy within the European Community of Community law over the national law of Member States were not always inherent in the EEC Treaty, it was certainly well established in the jurisprudence of the ECJ”.

Thus, in so far as the Court was concerned, by 1990, the principle of supremacy of Community law and its practical effectiveness amongst Member States were established beyond question. However, the theory’s practical application is ultimately dependent on the internal acceptance and adaptation of the constitutional orders of the Member States. And as AG Roemer noted in Van Gend en Loos the constitutional orders of some of the Member States do not easily accommodate the principle of supremacy.

The accommodation so far reached by the courts of various Member States on this issue will now be examined. For reasons of time, only some Member States will be discussed, although every state has its own interesting constitutional perspective to offer.


Under Public International Law (PIL), there are 2 conceptions regarding the transfer or delegation of sovereign powers to international organisations: Monism |Dualism | |PIL+ national law ( part of one single system with PIL taking | PIL + national law ( separate systems, | |precedence. |each supreme within its own spheres. | |ie Dutch + French constitutions provide that duly ratified |ie UK ( here you need incorporation of | |international obligations preside over municipal law. PIL into national law by national Act of | |Also, Belgian courts achieved the same result in absence of explicit|Parliament in the form of a statute | |constitutional provision by proclaiming that international |BA v. Laker and Blackburn case |obligations have effect superior to domestic law. |European Communities Act, 1972. | directly speak of transfer powers. | |always seeking statutes to conform to EC law. | In practice, there is little difference in the application of EC law.

In France, there was not any particular constitutional problem since the constitution provides that international treaties have a direct effect and are accorded supremacy. In accordance, Article 55 of the French Constitution of 1958 states that: “Treaties or agreements duly ratified or approved shall….. have an authority superior to that of Laws. ” However, the Conseil d? Etat, the supreme administrative court had difficulties in accepting the supremacy of Community law.

In the case of Semoules (1970)[18], the problem was expressed as a jurisdictional one: The Conseil d? Etat ruled that, since it had no jurisdiction to review the validity of French legislation, it could not find such legislation to be incompatible with Community law, nor could it accord priority to the latter. Decisions on the constitutionality were matters for the Conseil Constitutionnel – the Constitutional Council. However, in the Jacques Vabres[19] case in 1975, the Court of Cessation – Cour de Cassation – the highest of the ordinary judicial Courts – took a ifferent view and ruled that when a conflict exists between an internal law and a duly ratified “international act” which has thus entered the internal legal order (Art. 55 of the Constitution) the Constitution itself accorded priority to the latter. It was not until 1989 in Nicolo case[20], however, that the Conseil d? Etat finally abandoned its so-called “splendid isolation” and decided to adopt the same position as the Conseil Constitutionnel and the Cour de Cassation. The caution displayed by the French Conseil d?

Etat in its approach to the supremacy of Community law is evident in the case law of many other Member States. The Court of Justice? s view that national law can never take precedence over directly effective EC law on account of a transfer of sovereignty by the Member States and “the spirit of the EC Treaty” is not unconditionally accepted by the courts of Member States. In France, the main obstacle to the recognition of supremacy of EC law was the jurisdictional limitation of the French courts.

In other Member States, in particular in Germany, the difficulties which arose related to the fundamental constitutional nature of the national legislation which appeared to contravene Community law. Article 24 of the German Constitution allows for the transfer of legislative power to international organisations, but in litigation which arose over apparent conflicts between Community legislation and provisions of the German Constitution, the extent of power which would be transferred in accordance with this Article was questioned.

In particular, the focus of the case law was on whether Article 24 permitted the transfer, to an organisation outside the German constitutional structure of a power to contravene certain basic principles protected under the Constitution itself. Following the ECJ? s ruling in Internationale Handelsgesellschaft[21], the German Administrative Court ruled that the compulsory scheme regarding the Community deposit system breached basic principles of German constitutional law (compulsory payment of money cannot be imposed in the absence of fault) and it requested a ruling from the Federal Constitutional Court.

The latter refused to recognise the unconditional supremacy of Community law. The major objection was a concern over the possible impact on basic rights enshrined in the German Constitution of conflicting measures of Community law. For this reason, it held that the clause in the German Constitution which allowed for the transfer of legislative power to international organisations would not cover a transfer of power to alter or amend an “inalienable essential feature” of the German constitutional structure, such as its express protection for fundamental rights.

It concluded by saying that the protection for fundamental rights in the German Constitution would have to prevail in the event of any conflict. Having considered various changes in Community law since the time of the 1974 decision, including the development by the ECJ of a doctrine of protection for fundamental rights, and the fact that all Member States by this stage acceded to the European Convention of Human Rights, the German Court in Solange II (1987)[22] held that: So long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights…the Court will no longer exercise its jurisdiction……” More recently, in Brunner v. the European Union Treaty (1994) the Court had to consider the constitutional relationship between EC law and German law, on the occasion of the ratification of the TEU. It ruled that ratification was compatible with the Constitution.

The judgment shows that the constitutional court asserts and clearly intends to exercise a power of review over the scope of Community competence. Even if the German courts have accepted that Community law should be given precedence over national law, the constitutional court has made clear that it will continue to review the actions of European institutions and agencies to ensure that they remain within the proper limits of their acquired powers. In the United Kingdom, the acceptance of the supremacy of Community law has certainly not been unproblematic.

Since the British Constitution is largely unwritten, it is difficult to speak of “amending” it. The central obstacle to acceptance by the U. K. of supremacy of EC law is the fundamental constitutional principle of the sovereignty of Parliament. According to this principle, Parliament has the power to do anything other than to bind itself for the future. According to Dicey, “Parliament has, under the English Constitution, the right to make or unmake any law whatever and no person or body…. as the right to override or set aside the legislation of Parliament”. Furthermore, the doctrine of implied repeal means that no Parliament can bind its successor, and no Parliament can be bound by its predecessor. Any Act is thus vulnerable to change by a future Parliament. With those problems in mind, it was nevertheless decided to give internal legal effect to Community law by means of an Act of Parliament (dualist state): the European Communities Act, 1972. Section 2(1) establishes a legal basis within domestic law for directly applicable EC laws as in accordance with the Treaties and without further legal enactment to be given legal effect or use in the U. K… and… shall be recognised and available in law”. The section aims to make the concept of direct effect a part of the U. K. legal system. It states that law which under the EC Treaties is to be given immediate legal effect, is to be directly enforceable in the UK. Section 2(4) accords existing and future priority to EC laws. “Any enactment passed or to be passed…. shall be construed and shall have effect subject to the foregoing provisions of this section”.

Furthermore, section 3 states that: “For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect any Community instrument, shall be treated as a question of law and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court or any Court attached thereto”. It is therefore apparent that the supremacy of EC law is recognised in the U. K. by virtue of domestic legal processes and legal theory.

The principle of supremacy was in theory recognised by English judges. Despite earlier judicial comments to the contrary[23], the English Master of the Rolls, Lord Denning, in the case of Shields v. Coomes (Holdings) Ltd[24](1979) demonstrated a willingness to accept the principle of supremacy of Community law. In Bulmer v. Bollinger (1974)[25] he furthermore held that: “The Treaty is like an incoming ride. We must no longer speak or think of English law, as something of its own. We must speak and think of Community law, of Community rights and obligations and we must give effect to them”.

But again, this did not prevent judicial difficulties from arising over the practical recognition of the supremacy of EC law over national law. In Macarthys v. Smith[26], a genuine conflict appeared to arise between Article 119 of the EC Treaty concerning equal pay and section 1 of the Equal Pay Act 1970 in the U. K. It was held by the Court of Appeal that priority should be given to Community law following section 2(1) and (4) of the European Communities Act, 1972. Here, then, is the judicial reconciliation of Parliamentary Sovereignty with the supremacy of EC law.

But the overriding of the Act of Parliament is to be seen as a fulfillment of the Parliamentary intention – the intention to comply with directly effective Community law – and if it is made clear that the legislative contravention of Community law was intentional, then domestic law must prevail. In other words, the supremacy of EC law is assured in the U. K. only in so far as Parliament intends it to be, and the courts have no power to undermine the clear will of Parliament, whether or not it presents a breach of Community law[27].

The Factortame Litigation [28] earlier discussed, shows that, although an equilibrium may now have been reached in the relationships between U. K. courts and the ECJ as to the requirements of supremacy of EC law, the obligations of the U. K. courts stem from the express will of Parliament, and not directly from the Treaties: “Whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972,…was entirely voluntary”.

Thus, in conclusion we see that the bidimensional picture of the supremacy of Community law exists, even today, for although all Member States by now accept the practical requirement to give priority to EC law, few, if any, would be prepared to abandon their supervision of it, to ensure that the Community does not attempt to extend the powers it has been given. • Individuals The principle of supremacy has implications for individuals. The principle of direct effect gives the right to individuals to plead before the national court the provisions of EC legislation.

As a doctrine which principally protects individuals and often gives them rights which they can rely upon as against Member States, it sets up a mechanism for individual or indirect enforcement of EC law making thus Community law a reality for the citizens of Europe. Van Gend en Loos provides a clear example of the approach of the Court. The Court pointed to the fact that individuals were envisaged as being able to plead and rely on points of EC law through the preliminary ruling procedure. The Court set out certain criteria for the direct effect of a Treaty provision.

There must be: 1. a clear, negative, unconditional obligation on a Member State, 2. containing no reservation on the part of the MS, 3. and not dependent on any national implementing measure. (MS-no real discretion whether to apply measure). The Court held that Art. 12 of the EC Treaty was directly effective. This process establishes private rights for individuals which are enforceable in municipal courts. The principle applies most frequently in the relationship between private individuals and national authorities. This is called vertical effect.

Some provisions, however, because of their nature, have been recognised by the Court as having a wider effect in that they can be invoked against other individuals. This is called horizontal effect i. e. they impose obligations on other individuals. eg. the Treaty provisions regarding the competition rules applicable to undertakings, for example, can clearly be invoked before the national courts by one undertaking against another. Furthermore, a Regulation, as described in Article 189(2) EC Treaty, now 249 – TEU “shall have general application.

It shall be binding in its entirety and directly applicable in all Member States”. A Regulation is defined as a general legislative instrument which is binding in its entirety and which is directly applicable within the legal orders of the Member States without the need of intervention on the part of legislative bodies. Thus it has horizontal and vertical effect. In contrast, a Directive which is defined in Art. 249 TEU too, “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”.

Therefore, directives are not automatically applicable within Member States. Since directives are given legal force through national measures, rights and duties are conferred on individuals only after incorporation into national law. The conditions to be satisfied before direct effect can be pleaded are the 3 ones mentioned earlier. However, 2 important limitations are placed on the application of this principle: a) The principle only applies to directives which are unimplemented after the date set for implementation. ) The Court has only been prepared to apply this doctrine to the relationship between individuals and the state (vertical direct effect) as opposed to the relationship amongst individuals themselves (horizontal direct effect). The recent case of Dori (1992) reiterats this refusal. [29] In Marshall (1986)[30] and in Van Duyn[31] (1974) the Court confirmed that while a directive might be upheld against defaulting Member States, it cannot be invoked directly against other individuals.

However, the Court has sought to achieve the same result though the process of interpretation. For example, where the Court is interpreting the terms of an unimplemented directive as it applies between private individuals, the Court has observed that: “In applying national law, whether the provisions in question were adopted before or after the directive, a national court called upon to interpret it is required to do so, as far as possible, in light of the wording and purpose of the directive in order to achieve the result pursued by the latter”[32]: Marleasing SA (1992).

Furthermore, the principle of construction requires national courts, in conformity with Art. 10 TEU, to give full effect to EC law, to interpret all national legislation in the light of all relevant EC law, regardless of whether the particular provision is of direct effect: EC law does not have to be directly effective in order for it to benefit from the general doctrine of supremacy – Van Colson (1984)[33]. Furthermore, the ECJ has broadly defined the notion of the state to include anything that provides public service, with sufficient statutory powers beyond those which result from normal rules applicable between individuals”. Foster (1991)[34] Regional policy, health, tax and local authorities may be included. Furthermore, the state may be held to be responsible in respect of breaches of EC law, and liable in damages for the non-implementation of a directive, following the decision in Francovich[35] (1991) which held that: The full effectiveness of Community rules would be impaired and the protection of the rights which they grant would be weakened if individuals were unable to obtain compensation when their rights are infringed by a breach of Community law for which a Member State can be held responsible. ”. However, 3 conditions must be satisfied: - Implementation of the directive would confer rights on individuals. - Its terms should be sufficiently precise and unconditional to determine rights. - There should be a causal link between the breach and the loss.

The development by the Court of strong legal requirements in the area of national remedies for breach of Community law has generally been welcomed as a significant contribution to the effectiveness of Community law, at least through the medium of judicial intervention by national courts. However, the welcome has not been unconditional, and many commentators have called on the legislative institutions and political players in the Community legal process, to take appropriate action, rather than to leave this area of law for the Court to develop through the haphazard process of litigation.

Conclusion It is clear that the ECJ “the guardian of the Treaty” in formulating the principle of supremacy, reaffirmed the nature and development of EC law. The supremacy of EC law is inherent within the nature and spirit of the TEU. The special and original nature of Community law requires that its supremacy over national law is acknowledged and followed. The ECJ will not entertain the prospect of any provision of national law, even of constitutional validity, prevailing over an inconsistent provision of Community law.


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