Legal Review: Penetration of European Union Law on National Law

The extraordinary degree of penetration is described by Dashwood as ‘one of the defining characteristics of the European Union’[1] and goes on to say that ‘union law if (for most part) enforced in a decentralised manner through the medium of domestic judicial systems.’ Dashwood says that instead of the European Court imposing judgements on member states in a top-down and centralised manner, this decentralised system allows national courts can enforce union law independently, thus union law has penetrated the judicial systems of member states.

One doctrine that arguably has penetrated the judicial systems of all member states is indeed the doctrine of supremacy, according to Finch and Fafinski, ‘From the point of view of the community, where there is a conflict between EC law and the law of member states, EC law prevails.’[2] This statement is also supported by the judgement given in the case of Van Gend En Loos[3] which states, ‘the community constitutes a new legal order…for whose benefit the states have limited their sovereign rights.’ The connotation here is of member states setting aside national laws and sovereign rights, showing that the doctrine of supremacy has indeed penetrated the judicial systems of the member states to an extraordinary degree as national laws are set aside in favour of union law wherever a conflict may arise this is also supported by Steiner who says, ‘The transfer, by member states from national orders in favour of community orders of the rights and obligations arising from the treaty, carries with it a clear limitation of their sovereign rights.’[4]  In the case of Costa[5] within the judgement which states, ‘the transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights.’ The limitation of sovereign rights in the member states of the European union has been brought about by an extraordinary degree of penetration where effectively union law and national law become one national law where people can enforce union law in domestic courts and national law can be set aside in the event of a declaration of incompatibility, according to a law journal[6], ‘when faced with a conflict between a national rule and any community rule, national courts must disapply the first one in favour of the latter.’ which shows this extraordinary degree of penetration that the doctrine of Supremacy has on judicial systems of member states, as Lord Denning said in the case of Macarthy’s Ltd v Smith[7], ‘Community law has priority. It is not supplanting English law; it is part of our law which overrides any other part which is inconsistent with it.’ See also Factortame[8].

The doctrine of supremacy is also linked to direct effect, according to Alicia Hinarejos[9], ‘Primacy and direct effect have been inextricably linked.’ Craig and De Burca[10] defines direct effect stating that ‘it means that provisions of binding EU law which are sufficiently clear, precise and unconditional to be considered justiciable can be invoked and relied upon by individuals before national courts.’ This is correlated by Dashwood[11] who states that direct effect is ‘through which union law is capable of producing independent effects within the national legal orders.’ Both Craig and De Burca and Dashwood mention the effect of enforcing union law through the medium of domestic courts which results in union law becoming more effective, this is evidence of an extraordinary degree of penetration by which union law is directly effective and can therefore be enforced in domestic courts by individuals.

The criteria for direct effect was set out in the case of Van Gend en Loos and according to Parpworth[12], ‘in reaching this decision, the ECJ dismissed objections from the Dutch and Belgian Governments that it did not have jurisdiction to examine the internal effects of article 12.’ Parpworth states here that although objections were made in this case by national governments, article 12 was directly effective and therefore penetrated the judicial system of the member states in order for individuals to enforce treaty articles under union law in domestic courts providing they meet the criteria from Van Gend. This is supported by Hartley[13] who says, ‘can treaty provisions be “directly effective”, that is to say, can they apply as part of the law of the land in member states and prevail over domestic law without the intervention of the government or the legislature of the state concerned?’ Hartley suggests that both the doctrines of supremacy and direct effect have penetrated the judicial systems of member states and Craig and De Burca[14] support this in saying that Van Gend, ‘indicated that the concept of direct effect is understood as the immediate enforceability by individual applicants of those provisions in national courts.’                      In essence, it is the supremacy of union law which prevails over the domestic law and the direct effect which allows individuals to rely on union law in domestic courts in a vertical relationship giving rise to vertical direct effect.

In the case of Defrenne, the ECJ held[15] that ‘the principle contained in article 119 may be relied upon before the national court.’ The fact that it was held that the treaty article did have direct effect meant that, according to Hartley[16], ‘the requirement of further action did not prevent article 141 [119] from being directly effective thereafter.’ This meant that treaty provisions could not only be enforced against a member state in a domestic court within a vertical relationship, but that an individual could bring about an action against a private party, enforcing union law in a domestic court in a horizontal relationship. According to Chalmers and Tomkins[17], ‘The importance of the court’s ruling in Defrenne was its recognition that Treaty provisions such as article 141 were capable of bearing both vertical and horizontal direct effect: that is, they may be invoked, relied on and enforced in domestic legal proceedings whether the party proceeded against is the state or a private party.’ This amounts to an extraordinary degree of penetration of the judicial systems of member states as direct effect can operate with both vertical and horizontal relationships, widening the scope to which union law can be enforced in domestic courts and greatly increasing the degree of penetration.  

It is not only treaty provisions that are considered to be directly effective, in the case of Amsterdam Bulb[18] the court spoke of in terms of direct effect being ‘inherent in regulations and other rules of community law.’ Indeed this was held in the case of Van Duyn[19] that directives can have direct effect although they are not directly applicable unlike regulations and treaty provisions. A directive ‘shall be binding as to the result achieved[20]’ which means member states are bound only by the result and not the ways and means, the fact that these are directly effective illustrate an extraordinary degree of penetration as individuals can enforce a directive in a domestic court if the result is not achieved by the member state on time. According to Steiner[21], ‘the effectiveness 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 community law.’ Steiner suggests that community law would be ineffective if it did not penetrate the legal systems of the member states and although it is only regulations which are published in official journals, directives can still be enforced in domestic courts, demonstrating an extraordinary degree of penetration of the judicial systems of member states. This was also supported by the European Court in the case of Van Duyn[22], ‘the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts.’ According to Craig and De Burca[23], ‘the idea that direct effect could apply even where the member states possessed discretion, because the exercise thereof could be judicially controlled, represented a significant shift in thinking about direct effect.’ The significant shift that is referred to, is the extraordinary degree of penetration to which the doctrine of direct effect has resulted in, the fact that individuals in member states can enforce union law even where national governments are given discretion is evidence of this penetration as the doctrine of direct effect aims to make union law more effective.

According to Parpworth[24], ‘where an individual had acted in accordance with community directives as yet unimplemented by the state, the state could not be allowed to rely upon its own failure to perform the obligations where the measure was pleaded against it.’ In other words, the doctrine of direct effect has penetrated the judicial systems of member states to such an extent that even if a member states fails to implement a directive, an individual can still rely upon it in a domestic court and enforce this aspect of union law after the implementation date has passed. In the case of Ratti[25], the court held that ‘after the expiration of the period fixed for the implementation of the directive, a member state may not apply its internal law…which has not yet been adapted in compliance with the directive.’ The extraordinary degree of penetration of judicial systems is shown by the fact that directives are not directly applicable and therefore do not automatically become part of the law, Craig and De Burca[26] state that although directives do not become part of national law automatically upon adoption, ‘they may produce similar effects to regulations after the time limit for their implementation has expired and the state has not properly implemented them.’

The extraordinary degree of penetration does not go as far as to say that horizontal direct effect can take place with directives, in fact this would be mere impossible as it is for the state to implement the directive. According to Steiner[27], ‘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.’ The doctrine of direct effect undergoes difficulty; an individual is unable to enforce union law against another individual. The extraordinary degree of penetration is limited. The European court increased the degree of penetration in the case of Foster[28], to widen the scope in extending the word state. In the judgement the court defined state as ‘a body which has been responsible for providing a public service under the control of the state.’ This applies the doctrine of direct effect to a wider scope of individuals which makes horizontal direct effect possible; this extends the extraordinary degree of penetration.

The doctrine of indirect effect is evidence of this extraordinary degree of penetration; this is defined by Parpworth[29] as an obligation of the national court to ‘interpret their national law in the light of the wording and the purpose of the directive.’ And according to Craig and De Burca[30], the national court has an obligation to interpret national law in light of the directive ‘in a case against an individual, thus side-stepping in a certain way the prohibition on horizontal direct effect.’  This indicates that there is an extraordinary degree of penetration in the judicial systems of member states as national courts have an obligation to interpret their own national law in light of the directives, however, Dashwood[31] states that ‘the domestic judge engaged in the process of consistent interpretation was a matter of discretion whose parameters were determined by national law itself.’ And indeed is mentioned within the judgement of the Von Colson case[32], ‘it is for the national court to interpret…so far as it is given discretion to do so under national law. ‘This may indeed be a limitation for the penetration of union law as the judge who is obliged to interpret national law in light of the directive but within the ‘parameter’ of national law which has not adapted to the unimplemented directive. In the case of Marleasing[33], the court held that national law should be looked at ‘in light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply.’ Parpworth also quotes Lord Slynn and states in the words of Lord Slynn[34] that ‘there may have been reasons for thinking that it might not be appropriate to extend the obligation to measures adopted before a directive existed.’ In fact, the obligation upon the court to interpret a national law which could have been enacted many years ago in light of a more recent directive is evidence of this extraordinary degree of penetration in that the law of the European Union has become more effective in allowing individuals to enforce the law both directly and indirectly without which, the purpose of union law would be futile, as stated in the judgement of Francovich[35], ‘The full effectiveness of community rules would be impaired…if individuals were unable to obtain redress when their rights are infringed.’

This extraordinary degree of penetration has been brought about through these three doctrines which have allowed individuals to enforce union law, superior to national law, in domestic courts and it is upon these three penetrating doctrines that the whole legal system of the European Union is in working order.

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[1] Wyatt and Dashwood’s European Union Law 6^th Edition 2011

[2] Stefan Fafinski and Emily Finch English Legal System 2007 Pearson Longman

[3] Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1

[4] Steiner- EU law 10^th edition 2009

[5] Costa v Enel 6/64       

[6] European Law Journal Volume 14, number 5 2008 Alicia Hinarejos page 620-634

[7] Lord Denning in the judgement of Macarthy’s Ltd v Smith [1980] IRLR 210 ECJ

[8] R v Secretary of State for Transport ex parte Factortame Ltd (no 2) [1991] 1 ALL ER 70

[9] European Law Journal Volume 14, number 5 2008 Alicia Hinarejos page 620-634

[10] Paul Craig and Grainne De Burca EU Law Text, Cases and Materials 5^th Edition 2011.

[11] Wyatt and Dashwood’s European Union Law 6^th Edition 2011 Page 235

[12] Neil Parpworth Constitutional and Administrative Law. 5^th Edition 2008 page 222

[13] Trevor C Hartley Constitutional Problems of the European Union Oxford and Portland 1999

[14] Wyatt and Dashwood’s European Union Law 6^th Edition 2011 Page 185

[15]Judgement in Defrenne v Sabena [1976] ECR 455 Para. 39

[16] Trevor C Hartley The Foundations of European Community Law 6^th Edition Oxford 1981 pg. 197

[17] Damien Chalmers and Adam Tomkins European Public Law Cambridge Uni Press 2007 pg. 370

[18] Parpworth Constitutional and Administrative Law quotes the case of Amsterdam Bulb BV v Produktschap voor Siergewassen [1977].

[19] Van Duyn v Home Office 41/74

[20] Article 288 Treaty on the functioning of the European Union

[21] Steiner- EU law 10^th edition 2009 pg. 110

[22] Judgement in Van Duyn v Home Office 41/74

[23] Paul Craig and Grainne De Burca EU Law Text, Cases and Materials 5^th Edition 2011 pg. 186

[24] Neil Parpworth Constitutional and Administrative Law. 5^th Edition 2008 page 226

[25] Ratti Case 148/78

[26] Paul Craig and Grainne De Burca EU Law Text, Cases and Materials 5^th Edition 2011 pg. 194

[27] Steiner- EU law 10^th edition 2009 pg. 114

[28] Foster v British Gas Plc 188/89

[29] Neil Parpworth Constitutional and Administrative Law. 5^th Edition 2008 page 228

[30] Paul Craig and Grainne De Burca EU Law Text, Cases and Materials 5^th Edition 2011 pg. 201

[31] Wyatt and Dashwood’s European Union Law 6^th Edition 2011 Page 240

[32] Von Colson 14/83

[33] Marleasing SA 106/89            

[34] Neil Parpworth Constitutional and Administrative Law. 5^th Edition 2008 page 229

[35] Francovich v Italy 9/90