Direct Effect and Precedence of EU Law: Interaction with National Law - Prof. Covadonga, Apuntes de Derecho de la Unión Europea

¡Descarga Direct Effect and Precedence of EU Law: Interaction with National Law - Prof. Covadonga y más Apuntes en PDF de Derecho de la Unión Europea solo en Docsity! Interaction with National Law: Direct Effect and Precedence EU Law Communitarian Law 6. INTERACTION WITH NATIONAL LAW (I): DIRECT EFFECT AND PRECEDENCE OF EU LAW I. INTRODUCTION The EU legal order: • Is a self-sufficient body of law that binds Member States, their citizens and their courts. Legal order that is, therefore, independent from Member States’ legal orders. • At the same time, it forms part of the national legal orders and it integrates on them by using its own mechanisms. Therefore, two different legal orders are applicable to the same people and in a same territory —> that is why it is needed a system that regulates the interaction between both legal orders. The relations between EU law and national law are regulated by the principles of autonomy, direct effect and precedence of EU law. Autonomy of EU law The EU is an autonomous legal order vis-à-vis international law —> Costa c. ENEL: “The EEC Treaty has created its own legal system”. And also is an autonomous legal order vis-à-vis national law —> although it becomes part of national legal orders, it is not identified with them: the EU legal order is governed by the Treaties, and it is not subject to the principles, decision- making rules or legal effects provided for in national constitutions. II. DIRECT EFFECT OF EU LAW Direct effect: EU rules have full and uniform effects in all Member States since their entry into force and along the entire of their validity. They create rights and obligations for all the ones affected by their scope of application and they can be invoked before national authorities (administrative or judicial) that are obliged to safeguard those rights and obligations. Therefore, the principle of direct effect enables individuals to immediately invoke a European provision before a national court. It ensures the application and effectiveness of European law in EU countries. But the CJEU has defined several conditions in order for a European legal act to be immediately applicable. Judgement Van Gend en Loos, 5 February 1963 Problem posed: If an individual could demand/require a Member State to comply with an international obligation established in the Treaties. The CJEU stated that the EEC Treaty was more than an agreement which merely created obligations between the contracting States and that Community law not only imposed obligations on individuals but also conferred upon them 1 Interaction with National Law: Direct Effect and Precedence EU Law Communitarian Law rights. Rights that arose not only where they were expressly granted by the Treaty, but also by reason of obligations which the Treaty imposed in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community. Therefore, the Court is stating that European law not only engenders obligations for EU countries, but also rights for individuals, and that individuals can therefore take advantage of these rights and directly invoke European acts before national and European courts. According to this judgement, the direct effect means: That the provisions of the Treaties can create immediate legal effects, by themselves. That is, they don’t need that national parliaments enact national laws to implement them, neither national legislation can be an obstacle for their implementation. Individuals can invoke European acts before national authorities and claim the rights that these acts confers to them. And national authorities must ensure that the obligations assumed by the Member States are respected and protect the individuals rights. Conditions/requisites in order European law has direct effect: That the obligations that it imposes are precise and clear (this second condition was eliminated later) —> It means that the obligation is precise and lacking of ambiguities. That the mandate is un-conditional: It means that the provisions are self-sufficient, that they don’t require the adoption of other provisions or actions and do not leave margin of interpretation (to national or European authorities). The beneficiary and the right to be protected must be defined in the European law, and not need legislation for its implementation (neither national or European). There are two aspects to direct effect: • Vertical (relations between individuals and the State) • Horizontal (relations between individuals) According to the type of act concerned, the Court of Justice has accepted either a full direct effect (i.e. a horizontal direct effect and a vertical direct effect) or a partial direct effect (confined to the vertical direct effect). 1. Direct effect of the treaties Full direct effect Van Gen en Loos: Direct effect of an obligation to refrain from an action in the framework of vertical relations. Lütticke: The infringement of an obligation to make is transformed into an obligation to apply the rules that should have been eliminated or modified. Direct effect that can be invoked in vertical and horizontal relations. Walrave: Direct effect of the provisions of the Treaties in the relations between individuals. Defrene: Direct effect of the provisions of the Treaties in labour contractual relationships. 2. Direct effect of regulations Also full direct effect, regarding obligations to refrain as obligations to make, and in horizontal and vertical relations. Art. 288 TFEU: Regulations are directly applicable —> produces immediate effects. 2 Interaction with National Law: Direct Effect and Precedence EU Law Communitarian Law • Concludes from the punitive nature of the principle that it is not applicable to relations between private individuals, since they cannot be held liable for the consequences of the Member State’s failure to act. • In the relations between private individuals the rights and obligations conferred by a Directive that has not been transposed into the national law cannot be invoked. • The directive, in these cases, cannot impose, of itself, obligations on an individual and, therefore, cannot be invoked against that person. • Reasons: Punitive nature of the direct effect of directives —> only the responsible of the infringement must suffer the consequences. However, the CJ has tempered this rejection of the direct effect of directives in private-law issues, in order to mitigate the problems that this rejection poses for a full effectiveness of the European law. How?: • Interpreting the national rules according to the directive • Holding Member States liable to pay the damages caused by the failure to transpose a directive. • With the possibility to oppose to the application of the national legislation that contradict the directive, independently of the public or private parties in conflict. Obligation to interpret the national law in conformity with the directive When national judges apply national law they are obliged to interpret it in conformity with EU rules, whether they are directly applicable or not. Way to recognize indirectly the horizontal direct effect. The judge must guarantee the result of the directive, ensuring that the obligations assumed by the State are respected. The effects are limited to the parties of the case. The interpretation means that the lack of direct effect does not implies the irrelevance of the provisions of the Directive. The judge must do everything possible to guarantee the full effectiveness of the directive. Like this, we achieve an horizontal application by the national judge through the national rule. Interpretation cannot be used: • If there are not national laws into force that allow to reach the result provided by the Directive or if they exist but they cannot be interpreted in conformity with the Directive. • If the Member State is not the one that must satisfy the obligation, or if it is not specified who must satisfy it. • We cannot use interpretation: It only rest the Member State’s liability: pay for the damages/compensation. We cannot use the interpretation if it affects the principles that penalties must be lawful (nullum crimen, nulla poena sine lege), legal certainty and non-retroactivity e.g: that the interpretation increases the criminal liability of the individuals that infringe the directive. III. PRECEDENCE / PRIMACY OF EU LAW 1. The jurisprudence of the Court of Justice 5 Interaction with National Law: Direct Effect and Precedence EU Law Communitarian Law The Court has established the principle of the primacy of Union law. The Treaties do not contain a provision regarding primacy. Principle that is essential to the existence of the EU. Costa v. ENEL. The Court bases primacy in four basis: The nature and characteristics of the European Communities and their legal order As Member States have transferred the exercise of competences to the Communities, they have limited their sovereign rights (albeit within limited fields). Therefore, a subsequent national law cannot prevail over the competences transferred. The executive force of EU law cannot vary from one State to another in deference to subsequent domestic laws would jeopardize the attainment of the objectives of the Treaties. The binding character of EU law Regulations, directives and decisions are binding (with different scope) The principle of sincere cooperation (art. 4 TEU) regarding the compliance of the Treaties and the secondary legislation It has been expressly accepted by the Member States, that are obliged to refrain from any measure that could jeopardize the attainment of the objectives of the Treaties. The adoption of subsequent national laws incompatible with the European ones would violate this principle. Member States have accepted that the Treaties and the secondary legislation are applied without discrimination based in the nationality of the individuals (art. 18 TFEU) If Member States could modify or repeal unilaterally the common rules, it would create a discrimination between the nationals of the different Member States. If the constitutional or legislative rules of the Member States could be invoked against the European ones, it would be easy to escape from the common rules and be treated differently of the rest of the citizens of the EU. Internationale Handelsgesellschaft: “Recourse to 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 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”. EU law arises from the common will of the Member States, that is in the origin of the Treaties. Common will that must prevail over the individual wills of the Parties. If the EU legal order could be overridden by domestic law (constitutional, legal or administrative) it would be “deprived of its character as Community law and without the legal basis of the Community itself being called into question”. The primacy is a condition for the very existence of the union Therefore Union law has primacy over any conflicting law of the Member States The primacy of European law is to be applied to all national acts also over the Constitutions. Consequences in the event of conflicting laws: National law which is in contravention of Union law ceases to apply. 2. Powers of national courts Simmenthal (Case 11/70) 6 Interaction with National Law: Direct Effect and Precedence EU Law Communitarian Law National courts must directly and immediately apply EU law and set aside any provision of national law which may conflict with it, whether prior or subsequent to the European rule. And they do not have to request or await the prior setting aside of the national provision by legislative or other constitutional means (e.g.: exception of unconstitutionality) This is a duty not only of national courts, also of all the public national authorities. The objective is to guarantee the full and uniformly application of EU law. The CJ does not wish to be seen to create new areas of jurisdiction to national courts. It cannot say which national body must repeal the conflicting national law. Neither can it confer a competence to the national court to repeal it. In Spain, ordinary courts do not have that competence. Only the Constitutional Court But the Court does not let the national judge to wait until the conflicting national law is repealed, or to bring an exception of unconstitutionality before the Constitutional Court. The national judge/court must apply the European law to solve the case, and not apply the national conflicting law. Although the internal law does not confer that competence to ordinary judges, the EU law does. The national court must comply with its obligation to apply European law in its entirety and protect the rights which the latter confers on individuals. To sum up —> national law which is in contravention of EU law ceases to apply: • National law is neither rescinded nor repealed: It just its binding force that is suspended. • But this situation affects the principle of legal certainty: The national conflicting law should be repealed or modified in order to comply with the EU law. IV. EU LAW AND CONSTITUTIONS Primacy applies over every national rulealso over Member States’ Constitutions Case law of the Court of Justice: • The law stemming from the Treaty [...] could not [...] be overridden by domestic legal provisions, however framed [...]” (Costa v. ENEL) • The principles of a national constitutional structure cannot affect the validity of an European act, as the introduction of criteria coming from a Member State’s constitutional order would undermine the uniformity and efficacy of EU law (San Michele) Primacy is absolute. Delicate issue: The Constitutions express the sovereign will of the People. In them resides the basis for the accession to the EU. National Constitutional Courts have not accepted peacefully this principle, it has been admitted over national law, but not over constitutional texts. The constitutional control over primary law, either a priori as a posteriori, has been admitted. 7