The 2 Roles of EU Law – A Vehicle for Integration and the End Goal of Integration:
EU law itself dictates the substance of integration. It determines the rules that bind member states, rights of citizens and the procedures that govern the EU’s institutional structure.
The EU achieves its aims through law and enforcement through national courts. Instead, EU authority comes from its strong legal authority. Resistance to this comes as political authority as the EU makes it legally impossible for member states to resist the application of EU law and its objectives.
Law is both the tool that enabled integration and the integration itself too.
‘sixty years ago, inspired by the dream of a peaceful, shared future, the EU’s founding members embarked on a unique and ambitious journey of European integration. They agreed to settle their conflicts around a table rather than in battlefields. They replaced the use of armed forces by the force of law’. [1]
‘understanding law as a civilising force’. [2]
Implications of Integration through Law:
The objectives of integration are not held hostage to the political winds in 27 different member states. Law is applied equally over the different legal systems.
The side-lining of political institutions also implies a side-lining of accountability, representation and participation.
The authority of EU law is based on functional logic: law should be obeyed because it facilitates European integration, rather than because it protects ethical commitments to freedom, equality or democracy.
Principles of the Authority of EU Law:
Supremacy / primacy.
Direct effect.
Effective judicial protections.
State liability.
Autonomy.
From International Law to a New Legal Order:
The principle of conferral means that international institutions can only do things authorised by member states. Under international law, it is member states who choose whether or not to voluntarily comply. This is the problem with international law.
Monism: international agreements automatically become part of national law.
Dualism: international agreements only become part of national law if they are domestically implemented.
EU law is more than simply international law. The CJEU sees it as a ‘new legal order’, legally entrenching the authority of EU law above that of national law using direct effect and primacy.
‘the CJEU has constructed a very specific legal order – unlike any other found in national or international law – that exactly suits the specific needs of European integration’. [3]
Direct Effect: (VAN GEND EN LOOS)
Any treaty provisions that are sufficiently clear, precise and unconditional can be invoked in national courts against a citizens own member state, even against the wishes of the member state.
This applies to Regulations too, but not all Directives.
National courts have an obligation to refer questions relating to EU law to the CJEU.
In VAN GEND EN LOOS, Dutch authorities adopted a measure where imports could be charged an import tariff, despite already having signed the Treaty of Rome. V was charged an import duty for goods in an intra-EEC import (Germany to Netherlands). The CJEU held that EU citizens (and companies) can invoke EU law directly against member states.
‘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. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples (…)’
‘(…) 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 subject of which comprise not only Member States but also their nationals. Independently of the legislation of the Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage’
Justifications:
The EU was constructed to create an internal market – EU law should reflect and give effect to this.
Agreements should be kept (‘Pacta sunt servanda’).
EU integration has a ‘Sui generis’ nature – unlike international law, member states limited and transferred their sovereignty for the benefits of the state and citizens.
The EU treaty is an agreement not only between member states (as all international treaties are), but also an agreement between the peoples of those member states. This differentiated EU law from international law.
Implications:
Enforcement
Prior to the principle of direct effect, the only enforcement mechanism of the EU would be through infringement procedures. These were laborious, costly and not particularly effective. Since the ruling, every individual EU citizen can enforce EU law against their (or another) member state. This makes the (previously weak) power of enforcement of EU law quite strong.
The ruling integrates national courts as EU institutions too. National courts are now challenged to enforce EU law within their domestic legal order too.
EU authority is embedded and entrenched into the domestic constitutional structures of the member states. Member states cannot break EU law without upsetting constitutional commitments to the rule of law and separation of powers.
‘It is one thing for a government to disobey the decision by an international tribunal. It is, constitutionally and practically speaking, a whole other thing for a government to disobey decisions by their own national courts’. [4]
Integration
Direct effect creates an autonomous source of authority on an EU level (stemming from the Treaties), which is independent from national constitutional arrangements and based on the existence and exercise of individual rights.
The EU changes from being merely an agreement between states that binds peoples to an agreement between peoples that binds states. [5]
It may be argued that Van Gend creates a problematic dependence on individual rights for EU law to have authority. [6]
Primacy / Supremacy: (COSTA v ENEL)
Whenever there is a conflict between EU law and national law, EU law is always supreme.
In COSTA v ENEL, there was a conflict between national law and EU law. C sought to challenge an electricity bill because the Italian state owned a monopoly on electricity companies, and this non-competition was contrary to the Treaty of Rome. The CJEU held that EU law is supreme, even when national law post-dates the EU law.
‘By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which (…) became an integral part of the legal systems of the Member States and which their courts are bound to apply. (…) Law stemming from the Treaty, an independent source of law, could not, because of its special 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.’
Justifications:
The uniformity and efficiency of EU would be undermined if member states could rule and/or legislate contrary to EU law (‘Effet utile’).
As with Direct Effect, the CJEU characterises the EU integration as a ‘Sui generis’ union – unlike international law, member states limited and transferred their sovereignty for the benefits of the state and citizens.
Supremacy creates a reciprocal commitment to follow rules.
Implications:
National sovereignty and state democracy is essentially limited for an unlimited duration. Where national law, retrospectively or prospectively, is in conflict with EU law, national law is to be disapplied.
The advent of the concept of supremacy granted legal personality and transferred the ‘real power’ to the EU. The EU accepted that this relies on the positive reaction of national courts.
The judgement reaffirms that integration in the EU is through law.
‘It is difficult to overstate the radicalism of Costa’ [8]
The principle of supremacy applies to constitutional issues too. [9]
‘It is settled case-law that, by virtue of the principle of primacy of EU law (…) rules of national law, even of constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that state..’ [10]
Resources:
References:
[1] White Paper on the Future of Europe, COM(2017) 2025 [2] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 110 [3] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 104 [4] See Weiler, ‘The European Community in change: exit, voice and loyalty’ (1990) 3(2) Irish Studies in International Affairs 15,22 [5] Chalmers and Barroso, ‘What Van Gend en Loos stands for’ (2014) 12(1) International Journal of Constitutional Law 105 [6] Weiler [7] Case C-6/90 and C-9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic [8] Chalmers [9] Case 11/70 IHG [10] Case C-399/11 Melloni
Cases Mentioned:
Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen
Case 6/64 Costa v ENEL
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