|
|
Previous |Next |Title |Contents
Direct effect as a constitutional principle of the Community legal order, or as a constitutional characteristic of Community law, is no longer disputed. There is no doubt that, on accession, Community law becomes an integral part of the legal systems of the Member States which their courts are bound to apply - irrespective of the national constitutional arrangements governing the relationship between international agreements and domestic law-:
"the task assigned to the Court under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the States have acknowledged that Community law has an authority which can be invoked by their nationals before their courts or tribunals." [1]
Community law, nowadays, is increasingly invoked by individuals, before
national courts [2]. Throughout the Community,
lawyers are displaying the greatest inventiveness and imagination in bringing
their clients' claims within the remit of Community law, thereby contributing
to the expansion of the Community legal order [3]. Further, Community law is invoked for the purpose of doing
many different things, inter alia to render national law inapplicable
[4], as an aid to interpretation
[5] and for the purpose of founding a claim for
damages against the Member States [6]. It is
also recognised that Community law must be applied by national courts. Most
original difficulties have been ironed out and national courts have accepted
that they are ordinary courts of Community law [7]; they have accepted their obligation to apply Community
law, and that this involves carrying out a variety of tasks, ranging from the
straightforward application of a legally perfect provision of Community law to
an investigation of sophisticated economic evidence [8].
Of course it is tempting to say that direct
effect no longer has much relevance since Article 5 EC and the duty of
Community loyalty has taken centre stage in the case law of the European Court,
thereby relegating direct effect to a back seat. But I do not succumb to the
temptation.
It is not proposed to rehearse, nor even to shed some new
light on what remains the last controversial issue for academics, namely that
of the direct effect of directives [9]. Rather
it is proposed to look at direct effect from a very specific perspective: that
of securing compliance with Community obligations. Securing compliance with
Community obligations is a highly ranked preoccupation for all Community
institutions. Equally, in recent years, the Member States have made regular
calls for improving compliance, from the Declaration on the Implementation of
Community law [10] to the Resolution on
Effective Penalties [11]; or the new
intervention mechanism to safeguard free trade in the Single Market
[12]. The Member States have even taken
practical steps: inter alia the revision of Article 171, and insertion
of new provisions combating fraud against the budget
[13]. Even though not all actors in the
Community system attach the same importance to compliance, although the meaning
of compliance varies [14], and although the
Member States may not have the same attachment to compliance in relation to
each and every one of their Community obligations [15], a consensus exists with regard to the seriousness of the
problem, and the need to treat it as a priority. So the first question is to
what extent does direct effect help to secure compliance in the Community
system?
Secondly, from van Gend en Loos , the Court has
reached out to individuals:
"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...the subjects of which comprise not only the Member States, but also their nationals".
Whether 'Citizenship of the Union' implies a commonality of rights and obligations uniting Union citizens by a common bond transcending Member State nationality [16], or is just high rhetoric, it cannot be denied that, in the last 35 years, efforts have been made to bring the Community, and the Union closer to its citizens and to give expression to its character as more than a purely economic project. Therefore the relationships between direct effect and individuals, and the role individuals have to play to secure compliance with Community obligations, will be examined as well.
An Anniversary is an occasion for celebration and enjoyment, the status
and relevance of direct effect will be looked at with the eyes of a bon
sauvage. It is not to Rousseau, however, but to Rivero that credit for this
approach goes. Rivero wrote 'Le Huron au Palais-Royal ou réflexions
naïves sur le Recours Pour Excés de Pouvoir ".[17] Rivero's article describes in the most naïve,
extremely humorous but still very serious tone - a style which should appeal to
British pragmatism - the main weaknesses and pitfalls of judicial review of
administrative acts. The tone adopted by Rivero's bon sauvage, the many
references he made to what common sense dictates, are reminiscent of what one
learns about useful effect, the need to make rules operative, the "infant
disease" [18]. If Member States have agreed
obligations, and set up an institutional structure to make common rules, it
would be unfortunate if the necessary conditions for the system to work well
and be operative were not in place.
The other reason why it was
thought appropriate to draw a parallel with Rivero's piece is that both the
Recours pour Excés de Pouvoir and direct effect can be seen as
instruments to secure protection of individuals against the arbitrariness of
power. My first naïve remark is that direct effect would not be necessary
if Member States were complying with their Community obligations. It is because
of Member States' inertia and/or resistance, because of non-compliance, because
of a pathological situation, that instruments and techniques are needed. It is
because of non-compliance, that some mechanism to ensure compliance with Treaty
obligations becomes vital. If Member States agree to dismantle barriers to
trade between them, then they should do so, and not re-erect them. From this
perspective, direct effect appears to be a tool destined to secure compliance,
compliance with obligations willingly undertaken [19].
The European project is about a lot more than
free trade, or mere economic integration. It is a grand project, animated by
the ideals of peace, prosperity and supra-nationality
[20]; a project designed to bring about
benefits for individuals. It is a new project: one for the benefit of the
people. The people are part of the project [21], another compelling reason to create the necessary
conditions for this project to work. Creating the conditions for the project to
work is tantamount to ensuring that individuals will not be deprived of the
benefits which the project is meant to bring about. Thus, through direct
effect, individuals secure their rights not to be deprived of the benefits the
project is designed to deliver. In this way, direct effect can, naïvely,
be seen as providing not only mere protection of individual rights, but as the
mechanism that enables individuals to ensure the good functioning of the
system. In other words, direct effect - alongside being a technique, or a means
available to ensure that individuals are not deprived of specific individual
rights - provides the mechanism through which individuals acquire a right to
protection against Member States before domestic courts for violations of
Community law.
It has been said that judges in the ECJ were inspired
by 'a certain vision of their own' [22]. This
expression has sometimes been associated with disparaging comments about the
ECJ, but should not be. Quite the reverse; it seems that no other vision could
have been had. Who would not share this vision? Who would have resisted
creating the necessary conditions to ensure that the system will be operative
so as to deliver the benefits it was meant to bring about?
[1] Case 26/62 van Gend en Loos v.
Nederlandse Administratie der Belastingen [1963] ECR 1
[2] To the extent that one can actually talk of
the "paradox of success" J.Weiler: "The European Court, National Courts and
References for Preliminary Rulings-The paradox of success: A revisionist view
of Article 177." in Art.177: Experiences and Problems (TMC Asser
Instituut,1987) pp 366-378.
[3] K.
Lenaerts "Interaction between judges and politicians" (1992) 12 YEL 1 at 11:
"The decision that a provision has direct effect also has the added advantage
that it makes the ECJ responsible for fine-tuning the application of the
provision in concrete cases which in turn leads to a judge-made gloss on the
provision, determining its real content and relevance."
[4] Case 152/84 Marshall v. Southampton &
South West Hampshire Health Authority [1986] ECR 723 (Marshall I),
and Case C- 271/91 Marshall II [1993] ECR I-4367
[5] C-106/89 Marleasing v La Comercial
Internacional de Alimentacion [1990]ECR I-4135
[6] Case C-6/90 & C-9/90 Francovich and
others v Italy [1991] ECR I-5357
[7] R. Lecourt "L'Europe des Juges" (Bruxelles Bruylant 1976)
[8] Thus, direct effect of Article 90
(2) translates as "the duty of the national court to investigate whether an
undertaking which invokes the provisions of article 90(2), for the purpose of
claiming a derogation from the rules of the Treaty has in fact been entrusted
with the operation of a service of general economic interest, and if so,
whether its conduct is necessary to enable it to perform its task Case C-114/95
& C-115/95 Texaco [1997] ECR I - 4263 para.46
[9] For a comprehensive and stimulating overview
see S. Prechal, Directives in European Community Law: A Study on EC
Directives and their Enforcement by National Courts (OUP, 1995)
[10] TEU, Final Act, Part III : Declarations,
Declaration No 19 " Declaration on the Implementation of Community Law."
[11] OJ 1995 C188/1
[12] COM (97) 619
[13] Article 209 EC
[14] Thus for some compliance with directives
is secured with black letter implementation whilst the mechanisms for
application and enforcement may remain grossly inadequate. On all of these
points see Boch: "Rules to enforce the rules: Subsidiarity v. Uniformity in the
implementation of the Single European Market Policy." in: The Evolution of
Rules for a Single European Market, Part II: Rules Democracy and the
Environment"Mayes (ed) Office for Official Publications of the European
Communities Luxembourg 1995,p.1.
[15] Witness the difficulties surrounding the adoption of the
Directive on the burden of proof in cases of discrimination based on sex,
Directive 97/80 EC OJ 1998 L14/6, directive for which a proposal was first
submitted to the Council in May 1988 COM(88) 269.
[16] Case C- 274/96 Criminal proceedings
against H.O. Bickel , opinion of A.G. Jacobs para. 23
[17] J. Rivero, Dalloz Chronique 1962
pp-36-40. The title has been adapted given that during that part of the 6 years
war fought in Canadian territory, the Iroquois supported the English whilst the
Huron supported the French and given that the Kirchberg is the seat of the ECJ.
[18] Pescatore "the Doctrine of
Direct effect an Infant Disease of Community law" (1983)8 ELR 155
[19] What is really naïve about this
perspective, is to regard all Community obligations as willingly undertaken.
These points are however outwith the remit of this paper; see Weiler, "The
White Paper and the Application of Community Law" in Bieber & Others '1992:
One European Market?' at 347 for a discussion of the case law of the Court as a
source of law and obligations
[20]
Weiler: "Fin de siècle Europe" in R. Dehousse (ed) (LBE 1994) pp203-215
[21] Although politicians learnt on
the occasions of the Danish(1 st) and French referenda on
Maastricht, that the people are not always aware of all the benefits that
accrue from integration.
[22] Une
certaine idée de l'Europe Pescatore op.cit. at 157
Previous |Next |Title |Contents