The principles of autonomy, supremacy and direct effect are not written in the EU Treaty, yet are considered to be fundamental principles of the European Union. This post will explore how these doctrines are fundamental and conclude that they are essential to the overall Legal order of the European Union especially when EU law conflicts with our domestic law, namely the operation of EU laws in UK.
The autonomy of community law (EU laws in UK) means that it is quite independent of the legislation passed by the Member States and comes from an external source despite being created by the Member States themselves. This makes community law supranational; it extends equally and uniformly over member states territories, and is applied by their national courts in its original form. This is therefore fundamental to the legal order as having supranational law ensures the conformity of member states.
The uniformity of EU law’s interpretation is assured by the obligation to seek preliminary rulings from the community court. This is where the national courts member states raise a question to the ECJ about the interpretation, validity of the Act, Treaty and statutes of bodies established by an act of the council.
The autonomy of the Community law rests both on the concept of unity and on the principle of separation of powers or functions. The constitutional principle of separation means, in the community context, a division of functions between the community institutions and Member States and in the administration of justice, between the community court and national courts.
The practical application of the doctrine of autonomy is seen in areas where the integrity and effectiveness of community law has to be safeguarded. Or where it has to be distinguished from national laws as for example in the field of competition where the two systems overlap. The ECJ stated that the efficacy of the Treaty would be impaired if the specific tasks entrusted to the Community were not interpreted as totally independent. It follows that the Member States are in no position of taking unilateral measures to carry out the mandatory provisions of community law. The concept of the autonomy of community law was first mentioned by the ECJ in San Michele v High authority of the ECSC, which the court stated it is set apart from national law as a separate and independent legal order yet it rules directly over the territories of the member states and reflects a federal legal system.
Supremacy is a fundamental principle of the EU legal order as it reinforces the autonomy of the EU. Furthermore in accordance to Hart’s rule of recognition supremacy of EU law has been noted by authors such as Alter, Cruz and Steiner as only being supreme due to the member states acceptance of the EC Treaty. Supremacy’s further importance in the integration of the European community was highlighted by Cruz, which he claimed ‘Without supremacy community law ceases to be communataire.
Supremacy can be divided into structural and absolute supremacy. Structural supremacy is its ability to dis-apply national rules on procedures and remedies. Absolute supremacy is its ability to override the most cherished constitutional norm.’ This was exemplified in the case of Van Gend en Loos where the ECJ stated that ‘the community constitutes a new legal order in international law, for whose benefits the member states have limited their sovereign rights, albeit within limited fields.’ This was further reiterated in the case of Costa v ENEL, here Mr Costa was a shareholder in the Italian electricity industry which had been nationalised by an Italian statute. Mr Costa claimed that the Nationalisation Act contravened European Community Law and it was held impossible for a member state to give priority to a subsequent national law over European Community law. The ECJ further commented on how 'The Treaty carries with it a clear limitation of sovereign rights'.
The question of the supremacy of EU regulations was brought to the ECJ through the case of Internationale Handelgesellschaft v EVCF 11/70 in which the national court asked about the interpretation and legality of selected provisions of customs regulations dealing with compulsory deposits lodged in connection with import licences. The ECJ again emphasised that 'The Law borne from the treaty cannot have the courts opposing it with rules of national law of any nature whatsoever...'. This was reaffirmed in Erich Ciola. In the case of Simmenthal the ECJ identified the importance of Community law protecting individual rights and the consequent setting aside of national laws due to this. It further confirmed and elaborated on the Costa case, stating that national laws could be pre-empted either prior or subsequent to the enactment of community legislation.
The supremacy of Community law has caused problems for national constitutions as the national perspective of Supremacy appears to be different. This is because of a number of constitutional reasons in a number of member states.
With regards to the UK the traditional view expressed by AV dicey that Parliament was sovereign and could make or unmake any law on any subject whatsoever without legal constraints. Was generally accepted as a reality 100 years ago. However two principles remained a matter of dispute: The fact that Parliament could legislate on any matter and that parliament could not bind its successor.
EU LAW IN UK
The United Kingdom being a dualist system allowed EC law to come into force through the European Communities Act 1972. Section 2(1) of this act particularly conveyed how the UK limited its sovereign rights in favour of the EC. However section 2(4) limited the EU's sovereignty over domestic law. This subsection ensured that all domestic enactments had effect only subject to directly applicable rules of community law. Overriding the usual presumption that any later enactment overruled earlier law inconsistent with it, and clearly limited the effect of any primary or secondary legislation' purporting to contradict any provision of the EC Law.
The judge’s belief that the Europeans Act would coincide with national law was seen in the early case of Shield's v Ecoomes (1979) where Lord Denning stated that 'By the 1972 Act, parliament enacted that we should abide by the principle as laid down by the European Court.
The case of Mcarthy v Smith created a new approach to interpreting European Law. A female employee took over from a male predecessor, whose contractual pay was less than his. There was therefore an issue over whether the act complied with the article. Lord Denning consequently treated the European measure as an aid to construction and therefore treated the question as an aid to statutory interpretation. Justice Cumming-Bruce in his dissenting judgement stated that community obligation if clear should bypass national law, more in accordance with direct effect.
Nevertheless Lord Denning's construction approach was applied in consequent case law such as Garland v British rail engineering. However this gave rise to concerns about whether too much emphasis was being placed on the construction approach in England. This was because the European court in Van Gend en Loos stated that European obligation should not be conditional upon national law.
The case of Factortame however brought about a change to the constructive approach through another challenge to the United Kingdom’s sovereignty. This case concerned Spanish nationals who were discriminated against by the Merchant Shipping Act 1988. The ECJ ordered the national court to suspend the operation of an act of parliament, something that had never been done in the UK and that breached parliamentary sovereignty . This brought about academic debate on the concept of parliamentary sovereignty.
Authors such as Wade stated that the act having to be disapplied meant ‘that something drastic had happened to the traditional doctrine of parliamentary sovereignty‘. He claimed that this was revolutionary on the grounds that the courts were no longer prepared to uphold absolute parliamentary sovereignty. He further rejected the constructive approach believing that what happened in Factortame was an application of a rule of interpretation. This meant that parliament was presumed statutes not to override EU law. This view was also held by Sir John Laws.
Alternatively Craig and De Burca argued that sovereignty remained intact. Although the courts had altered their role. They allowed parliament to set the limits of its sovereignty rather than defining those limits within themselves.
On the other hand McCormick argued that in the modern world it was no longer realistic to speak in terms of absolute sovereignty due to the inter-dependence of economies.
However many English Lawyers, did not accept the European Court’s view. They contended that European law overruled English domestic law only because parliament had chosen to make it so, and that parliament could change its mind at any time. All the rights and obligations created by EU law were incorporated by the ECA into English domestic law, and took precedence even over primary legislation where this was inconsistent.
A balance is thus preserved between the supremacy of EU law in matters of substantive law, and the proper supremacy of the UK parliament in establishing the legal framework within which EU law operates. There is now an external body competent to make laws affecting the United Kingdom, which are applied by the English courts irrespective of the wishes of Parliament. The UK is not the only country to have struggles with supremacy in their national jurisdiction this is also seen in other European Union member states such as Germany and Poland.
Direct effect is implicit in supremacy. These doctrines have been described as the ‘defining characteristics of EC Law’ which have made it unique in comparison to international law. Without direct effect and supremacy which ensures uniformity and consequently legal certainty ‘the legal system and its application would be imperilled‘. Direct effect ultimately gives the individual rights and with this the people of the Member States are brought directly into the European Community in a way which transforms the Community into something much more than simply the sum of its Member State parts.
Having established the supremacy of Community law over national law, the ECJ introduced the concept of direct effect through the case of Van Gend en Loos. This was the result of the court’s view that a new legal order had been established with the Community, which gave rights to individuals that their national courts had to uphold. This was subject to three requirements being satisfied and meant that an individual could claim a right under the Treaty, administrative act or other act treated as sui generis by the Court. This very important development was implied by the ECJ under its powers of interpretation and within its role in explaining what Community law was. Thus, it was possible to identify three issues, which could be referred for a ruling under Art 267 namely, interpretation, validity and direct effect.
Craig & De Burca observed that it could be narrowly defined as its capability to grant entitlements to individuals. Lenaerts highlighted these entitlements derived from a higher ‘norm’ which would not have been present in the relevant national legal system. Dougan further articulated in the ‘primacy model’ of the relationship between direct effect and supremacy, that direct effects domain was of granting rights rather than setting aside national law. It additionally had a substitutionary effect. This was endorsed by Lenaert who stated that direct effect ‘supplemented the gaps in the national legal order.’
The nature of how all legally EC binding acts were capable of direct effect of community law in national courts was further reinforced in the case of Grad V Finantanzamt Traustein which concerned the enforceability of a decision which gave a time limit for amending national vat laws, the ECJ stated that it would be ‘incompatible with the binding nature of decisions.’ if citizens could not enforce them and as it met the Van Gend en Loos criteria it was capable of direct effect. The case of Van Duyn v Home Office deviated away from community laws enforceability against national courts and set out the conditions needed for any provision of community law to be directly effective. The criteria were that it needed to be clear and precise/unconditional without exceptions and not require any implementation by the Member States.
After the successful application of direct effects to other areas of EC law, the contentious issue of directives was then brought to the courts attention. This was due to the nature of directives not giving rise to direct effects automatically; as they were orders addressed to the state to implement certain law into their system .The ECJ made a distinction between direct effects concerning directives .Directives could only be enforced against the state or be vertically directly effective. Rather than having horizontal direct effect, which was against private individuals and which was what Treaty articles, regulations and decisions were capable of doing.
A number of case law was used to outline the principle of vertical direct effect. Defrenne v SABENA (No.2) stated that the directive must give clearly identifiable rights to individuals. Pubblico Ministero v. Ratti added that the time limit for the Member State to enforce the directive must have passed. Lastly Marshall v Southampton South West Hampshire Area Health Authority stated that directives were only capable of vertical direct effect, this case involved a women being made to retire contesting that the different retirement ages of men and women was against the equal treatment directive 76/207. In addition to this Foster v British Gas expanded the definition of the state to being a body subject to its control and which had special authority given to it by the state, evidence of a broad definition of the state was further seen in the NUT v Governing Body of St Mary’s Church of England (aided) Junior School where educational institutions were seen as part of the state.
Due to this broad characterization of the state the ECJ further imposed a duty of harmonious interpretation which was for international courts to construe national law in light of Article 10. This principle was spawned in the case of Von Colson and Kamann V Land Nordrhein-Westfalen and was arguably seen as a way for courts to avoid the use of direct horizontal enforcement.
Many member states failed to recognise indirect effect. For example the French courts in Minister of the Interior prevented the claimant from using Directive 64/221. Similarly the English courts in O’Brien refused to accept that the Equal Pay Directive 75/117 had direct effects. Furthermore the German tax court in Re VAT Directives also refused to implement the sixth VAT directive.
This was because Article 288 TFEU differentiated between regulations being directly effective and directives which were implemented through national legislation. Weiler purported the idea of formalism where the legal language used by the ECJ provided a conceivable concept that member states followed. This was violated without the express mention of the direct effect of directives.
Despite ‘pockets of resistance’in member states such as Germany exemplified in Internationale Handelsgesellschaft, states have come to accept direct effect and supremacy. Reasons included the empowerment of all courts to exercise the power of judicial review which was prohibited in non -community cases. Moreover direct effect and supremacy suited member states due to common interest that the rules were followed.
This was reinforced by historical institutionalists who believed that states gave power to the ECJ to adhere to the intention of the founders, in turn the ECJ required deference to supremacy. According to Ginsberg the early establishment of direct effect and supremacy saved the Treaty from being undermined by states who would have reinstated their prerogatives.
To conclude autonomy, supremacy and direct effect are fundamental to the legal order of the European Union as they ensure a means of compliance by member states to the workings of the European legal order and further grant rights to individuals, allowing for a social element to the integration of the European Union.