⇒ Monist system (e.g. France) → international law and national law fall under the same legal system

• When these countries joined the EEC they incorporated EEC law by simply signing the treaty

⇒ Dualist system (e.g. UK, Germany, Italy) → International law forms a separate system to domestic law

• Domestic law must incorporate the international law into the domestic legal system

⇒ Probably little difference between the 2 systems, but there is greater chance for disruption in the dualist system

⇒ Early treaties didn’t articulate the subservient relationship between EU and Member State law

• Even to this day there is no express statement of supremacy

⇒ However, we do now have Art 4(3) TEU: the principle of sincere cooperation

• “Pursuant to the principle of sincere cooperation… the member states shall take any appropriate measure… to ensure fulfilment of the obligations arising out of the Treaties… [and] shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives”

⇒ Also see Declaration 17 of the Lisbon Treaty

⇒ Costa v ENEL [1964]: this case established the principle of supremacy (i.e. primacy) of EU law over laws of the Member States (EU law is directly applicable in each Member State's legal system)

⇒ EU law prevails over the national constitutions of MS (Internationale Handelsgesellschaft v Futtermittel [1970])

⇒ National courts should dis-apply conflicting domestic provisions whether adopted before or after the EU provision (Simmenthal, [1978])

• In this case, the Italian law was contrary to European Community law
• The ECJ held that the national court is “under a duty” to give full effect to European Law, even in the circumstances where there is a “conflicting provision of national legislation”

⇒ Factortame (No 1)

• ECJ said interim relief must be available if the supremacy is to operate
• Lord Bridge said that the UK’s limitations of its sovereign power when parliament passed the ECA 1972 were “entirely voluntary”

⇒ Solange I [1974]:

• The Court impliedly rejected doctrine of primacy – the German Federal Constitutional Court (FCC) said that, in the hypothetical case of a conflict between European Community (EC) law and the guarantee of fundamental rights under the German constitution, the German constitution's rights prevailed over any conflicting norm of EC law
• HOWEVER, on the facts of this particular case, the FCC held that the rules of EC law in issue did not represent a violation of the fundamental rights under the German constitution

⇒ Solange II [1987]:

• The German FCC moderated its stance – the FCC concluded, as long as the EC generally ensured an effective protection of fundamental rights against the sovereign power of its institutions and that protection was regarded as substantially similar to the protection of fundamentspanl rights required unconditionally by the German Basic Law (constitution) the FCC would no longer exercise its jurisdiction (this means it will no longer scrutinise laws of the EC that could be incompatible with rights contained in the basic law)

⇒ Omega (2002):

• THe German Court held that Laser games can be banned as it does not violate freedom to provide services and does not violate the fundamental right of human dignity

⇒ German FCC case on Lisbon (2009): it was held that the Lisbon Treaty was compatible with the German FCC

⇒ There are 2 views here in respect of protecting EU law

• The supremacy of EU law is accepted as part of the constitution and not the EU legal order → there has been transfer of sovereign powers and thus the state retain the power to decide on limits of EU competence
• Supremacy of EU law is accepted over ordinary domestic laws but there is no precedence of EU law over the domestic constitution

⇒ There are 2 further views:

• Absolutist → the EU takes precedence over everything
• Relativist → the EU law has primacy in general, but some laws/areas are beyond the reach of European law

⇒ Opinion of the Council Legal Service of 22 June 2007: “It results from the case-law of the CJEU that primacy is a cornerstone principle of Community law.”

⇒ Even though primacy isn’t within the treaty it has been well established in case law → without it the EU legal order would cease to effectively function

⇒ Van Gend en Loos [1964]:

• Treaty provisions have vertical direct effect
• A two pronged test came from the case:
• EU law provides States and individuals with rights and obligations
• Such rights and obligations can be enforced before national courts

⇒ Vertical Direct Effect: there is an application of the treaty between the Member State and the citizens

• So citizens can rely on Direct Effect in actions against the state

⇒ Horizontal Direct Effect: between individuals, including companies

• So individuals can rely on Direct Effect in actions against each other

⇒ Treaty provisions have vertical Direct Effect (Van Gend en Loos [1964])

⇒ The Court said treaty provisions will be directly effective where they are clear, precise and unconditional (i.e. where there is no discretion or judgement of another body required) - Alfons Lutticke v Hauptzollamt [1966]

⇒ Treaty provisions also have horizontal DE – (Defrenne v SABENA [1976])

• Defrenne v SABENA [1976] also added an extra requirement for treaty provisions to have Direct Effect:
• This case said that for treaty provisions to have direct effect they have to be clear, precise, and unconditional AND it must be intended to confer rights upon an individual
• So the judgment expanded/broadened the concept of Direct Effect

⇒ To be directly applicable (Article 288 TFEU) ≠ to have direct effect

• Directly applicable law means that the law is automatically applicable in all the Member States and the Member States are not allowed to implement a regulation
• To have direct effect: there needs to be a possibility for an individual to make a claim based on a specific legal act

⇒ If clear, precise and unconditional regulations can have:

• Vertical Direct Effect (Leonesio v Italian Ministry of Agriculture [1972])
• Horizontal Direct Effect (Variola v Amministrazione delle Finanze [1973])

⇒ Vertical Direct Effect will arise in the case of directives if:

• Clear, precise, and unconditional (Van Duyn v Home Office [1974])
• AND the implementation date for that directive must have passed (Ratti, [1979]). BUT in advance of the deadline, Member States have a duty not to adopt any measure that might compromise the result prescribed in the directive (Inter-Environnement Wallonie v Région Wallone [1997])
• The directive must give clearly identifiable rights to individuals (Defrenne v SABENA [1976])

⇒ Directives can only have vertical Direct Effect (Marshall v Southampton Area Health Authority, [1986]) → So, directives can only apply against the State (this includes “emanations of the state”)

⇒ Emanations of the State include:

• A hospital (Marshall v Southampton Area Health Authority, [1986])
• British Gas (Foster v British Gas [1990]) – the case gave the criteria for whether a body is an emanation of the state:
• An emanation of the state must provide a public service; provide that public service under state control; and have special powers to provide that service
• Regional and local government (Fratelli Costanzo v Milano [1989])
• School receiving State funding (NUT v St Mary’s School [1997])

⇒ Problems: it leads to discrimination against individuals who are claiming a right against an individual

• In other words, individuals had to prove the defendant is an individual → this can lead to discrimination
• To get around issue court came up with new doctrine: indirect effect

⇒ To bridge the gap between horizontal and vertical effect

• Indirect effect is an interpretative tool by which individuals may use to rely on Directives against other individuals

⇒ Indirect Effect is the obligation of national courts to interpret and apply national law in a manner which is consistent with the wording and purpose of directives – this can mean that an individual can enforce a law from the EU against another individual in a national court (doctrine set down in case of Von Colson [1984])

• Also applicable if national law existed prior to directive (Marleasing [1990])
• In the case of Marleasing [1990] the ECJ made it clear that Member State courts should act on the presumption that relevant national legislation, whether passed before or after relevant directive, was intended to implement it
• Based on the now Article 4(3) TEU – national courts are under an obligation to interpret national law consistently with EU law, so far as is possible to do so, whether or not the directive has Direct Effect

⇒ Limitations by EU law:

• Interpretation cannot conflict with a general principle (Kolpinghuis [1987])
• National courts must consider the whole body of national rules and interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objectives of the directive (Pfeiffer [2004])
• Indirect effect only after the deadline expires (Adeneler [2006])
• No obligations on individuals if no proper implementation (Centrosteel v Adipol [2000]), especially if criminal liability involved (Arcaro [1996])

⇒ Limitations by national law:

• Interpretation only in so far as the court is given discretion to do so under national law (Von Colson [1984]) → So, this is the duty of consistent interpretation
• Interpretation can only go “so far as possible” (Paola Faccini Dori v Recreb [1994])
• Disapplication of national law if impossible to interpret it in conformity with the directive (Kücükdeveci v Swedex [2010])

⇒ It’s possible for one party to claim a right against the state under Direct Effect, with consequences for a 3rd party.

⇒ E.g. the case of Wells - one party claimed a right under an unimplemented Directive against the State, with the result that his neighbour couldn't get planning permission.

⇒ General principles of EU law have horizontal effect (so can be directly enforced against private parties) (Mangold v Helm, [2005])

• Mangold allowed a directive to be directly enforced against private parties on the basis that it embodied a general principle of non-discrimination
• Obviously, Mangold has the potential to be really very wide. It is not hard for enterprising lawyers to find some general principle of law or other that is embodied by a particular Directive. If Mangold were taken at face value, it would therefore really undermine the general rule of no Direct Effect against private parties.
• It is very uncertain how Mangold will be applied