The Peaceful Conflict: The EU Law against Member States’ Legislations

Author: Shahlar Ibadzade, LLM in Saarland University: Europa-Institut – European and International law, 2019-2022

Editor: Bobbie Smith, MA Geography University of Aberdeen 2016-2020 / Graduate Diploma in Law University of Exeter 2020-2022 

Abstract

The European Union law (hereinafter “the EU Law”), and on the other hand, the interaction of legislations of 27 EU member states, occupies a unique position vis-à-vis both domestic and international law. This is because the EU law is based on the idea that all national legal systems should be interconnected.

This is the case from two very different points of view: first, from the point of view of the EU, and second, from the point of view of the individual member states. This article explores the various interpretations of the EU law, the role that “interaction” plays in this context, as well as the connection between the EU law and the legislations of other member states.

Nonetheless, research was conducted to investigate the connection that exists between the European Court of Justice (hereinafter “the ECJ”) and the national courts, as well as the outcomes of the EU law’s direct effect on the legal and judicial systems of member states. The prominent legal status of the EU law was brought to the forefront as a consequence of the interplay between the legal system of the EU and the legal systems of its member states.

Introduction

Precedence of a specific law over another is obviously a very sensitive matter, especially when laws from another country take precedence over a state’s internal law. This issue has a significant impact on state sovereignty and self-determination. In this regard, as seen by the results of the 2016 UK Referendum on EU membership, UK voters who chose to leave the EU had a significant impact, and the UK regained sovereignty over its borders and regulations. Even on a broad level, it is questionable whether any state within such a Union can always exercise complete independence over state sovereignty and one or more of the state’s institutions. Not all states tied by multilateral and multinational accords and organizations can conduct independent administration or operations in a linked globe. On the other hand, it should be noted that the majority of governments’ powers are confined within a specific framework, for a limited time, and under specified conditions. In this regard, “EU law and the national legal systems of its member states” remain relevant today. Since the middle of the twentieth century, with the beginning of global integration processes, new and unique institutions have emerged in many parts of the world, and in the course of the integration processes carried out within these institutions, a unique legal system – The EU law – has emerged. Given that there are many approaches to the EU law, the following EU law concepts that bring out the element of “reciprocity” should be noted:

  1. In the aspect of regional international law – That is, the norms regulating public relations arising in this area are regional in nature, and these norms apply only to states located within the region.
  2. In the aspect of combining the two legal systems – Many authors treat the law of the EU as a combination of the Romano-Germanic legal family and the Anglo-Saxon legal family and call it the national legal systems of the European states.
  3. In the aspect of the collection of legal rules pertaining to various fields of general and special law – In this sense, the law of the EU is used in a limited sense and includes the law of the EU, the law of the Council of Europe, the European Convention on the Protection of Human Rights and Freedoms and so on.
  4. In terms of the EU, as well as the legislative rules that govern social relations formed during the integration process – Most authors are in favour of this approach and this concept is taken as the basis of the regulatory sphere of The EU law.[1]

When it comes to the place of EU law in the legal system, there is no unambiguous opinion. However, as a result of research and many scientific studies, three main approaches can be revealed:

  • The law of the EU is a special type of law – This determines that this law is the law of the specific region that limits the sovereign rights of the states;
  • The EU law is part of international law;
  • This is a complex law, which includes a set of international and national legal rules.[2]

Each approach determines the relationship between the law of the EU and the national legislations of its member states and appears as a logical conclusion of the interaction between the law of the EU and the national legal systems of its member states.[3]

The Nature of the Interaction between the EU law and Member States’ legislation

The EU law is a special legal system that exists alongside national legal systems and international law. Therefore, it differs from the national legal systems of the member states, as well as from international law. Thus, the law of the EU is an independent field of law, it is universally recognized and has independent regulation methods and a special subject.[4]

Although EU law differs from international law and the national legal systems of member states, there are commonalities between them. First of all, it should be noted that international law, as well as national legal systems, play an important role in the creation of EU law. Thus, the importance of practice characteristics of these two legal systems should be noted for the EU law as well.

Despite the fact that EU law was inspired by international law, it did not accept some elements that characterize international law, such as a) it is not binding for every state, b) it recognizes only states as subjects, not citizens.

When it comes to the involvement of national legal systems in this field, it should be highlighted that the EU legislation incorporates features, methods, and mechanisms common to national legal systems. They are applied to maximally resolve issues falling within the jurisdiction of the EU.

As a result, the law of the EU does not stay away from other legal systems, on the contrary, it functions by performing its functions in the context of interaction with international law and national legal systems, and at this time, this “interaction” is regulated with the help of relevant principles.[5]

The Importance of the Main Principles Characterizing the Interaction

As mentioned in the previous section, there is an interaction between the EU law and the national legal systems of the member states. This interaction is characterized by a number of principles, including:[6]

The Supremacy of the EU Law in Relation to the Member States’ Legislation

Concerning the relevant principle, the ECJ determined that:

  1. The EU law’s supremacy is a necessary and important condition for the Union’s existence and the development of European integration,
  2. The supremacy arises from the nature of the EU law, but constitutional law is not defined by national legal rules,
  3. The EU law’s legal order is superior to the one by national law, and
  4. The supremacy of the EU law supersedes national law.

It should be remembered that when the decision to admit the United Kingdom to the EU was reached in 1972, the relevant state passed a Special Act on the EU on that day. Hence, the previous period’s papers, like the acts accepted following the country’s admission to the Union, have a direct influence on the country’s territory, as well as supremacy over national legal norms.[7] It should be mentioned that the problem of recognition of the supremacy of the legislation approved by the British Parliament and the parliament shows that the acknowledgement of the supremacy of European legal norms may be cancelled to some extent. According to Hartley, nothing has changed in the issue at hand. As a result, in addition to holding the dominating position, the British Parliament retains the right to decide whether or not to quit the Union. It should also be emphasized that the aforementioned principle was not immediately applied because, in the beginning, the judicial authorities of a number of states attempted to limit its importance and implementation. For example, the German Constitutional Court and the French Council of State attempted to condition their rights when examining a case involving the implementation of The EU legal rules, particularly when the rights and freedoms granted in those nations’ constitutions were violated. The Italian Constitutional Court felt that the principles of the EU law might form a procedural aspect of the country’s first choice, but all inconsistencies gradually faded.

In its judgements, the ECJ has demonstrated that it uses the constitutional traditions of the EU member states to preserve fundamental rights and freedoms. In the event of a dispute between the EU law and the constitutional norms of the member states, the Union’s legal rules take precedence. According to the ECJ’s ruling in the “Simmental” case, Union law illustrates the interaction between, on the one hand, treaty provisions and directly applicable standards of Union institutions, and, on the other hand, national laws of member states.[8] It should also be underlined that the norms of the EU institutions and treaty provisions are the inherent elements of the legal order of member states and have supreme legal effects on their respective territories.[9] It is impossible to adopt a new national legislative act that is inconsistent with the provisions of Union law.[10] Furthermore, it is noted that the conflicting norm of national law is not a minor one but is only examined in the context of unimplementable norms. The “French Merchant Seamancase demonstrates that states should repeal non-applicable norms.[11]

In the 1972 decision of the European Commission v. Italy, the ECJ held that where discrepancies between national law and the EU law are discovered, national judicial authorities shall offer directions on the suspension of the effectiveness of such regulations. Yet, the ECJ has encountered considerable opposition.[12]

The Treaty establishing a Constitution for Europe establishes the corresponding principle in a unique form. As a result, it is stated there that the norms developed in the course of carrying out the functions entrusted to the institutions of the Constitution and the Union have precedence over the legislation of the member states. Article 1.6 stipulates that the law authorized by the Constitution and the Union’s institutions has supreme legal authority above the law of the member states.[13]

It should be mentioned that the relevant principle was construed by the ECJ in the 1980s under the name of the principle of extra effect. This principle involved the duty of member-state courts to interpret national laws in line with Union law, including the standards that comprise the content of the EU directives.[14]

The Direct Effect of the EU Law

The relevant principle is evaluated in two ways:[15]

  • Union law is recognized as a valid and enforceable standard by member-state law-enforcement organisations (particularly national courts). Non-compliance, incomplete or inaccurate compliance with the necessary norms of the EU legislation is regarded as a violation of the relevant legal system and results in responsibility. The judgement in the “Van Gend en Loos” case[16] inspired this clause. Hence, it is demonstrated that within the framework of the Union, institutions with sovereign powers have been established, the realization of which impacts both member states and individual citizens on an equal footing.
  • The EU law has clearly and precisely differentiated the distinctive rights of natural and legal people, as well as the authorities of state bodies to defend them.

The ECJ’s efforts in developing and interpreting the aforementioned concept should be commended. As an example, the Van Gend judgement from February 5, 1963, can be given.[17] The Van Gend Company, which imports chemical preparations, filed an appeal with the ECJ in response to an increase in customs taxes imposed on the importation of its products into the nation. He alluded to Article 12 of the Treaty on The EU. It is banned in that article to impose levies or taxes that are adverse to the aims of establishing a common market. The ECJ emphasized important sections concerning the definition of a number of subjects, demonstrating that, first, the European Economic Union agreement is more than just a contract between contracting nations that generates reciprocal duties. Furthermore, the ECJ holds that Article 12 of the Treaty on the European Economic Community is directly relevant. In addition to establishing concrete prohibitive requirements on all member states, this paragraph establishes citizens’ rights to invoke this obligation. Thus, the ECJ determined that, in accordance with Article 12 of the Treaty on European Economic Union, that provision should be construed as a regulation with direct effect and generating an individual right to protection by national courts.[18]

In its judgement in European Commission v. Italian Republic, the European Commission demonstrated that all means of implementation that hinder the immediate effect of the EU legislation are in violation of the contract.[19] Furthermore, the ECJ concluded that the requirement of implementing measures for the implementation of the EU normative legal acts does not contravene their direct impact. This is especially crucial in light of the directive. The directive does not specify a mechanism for regulating one or more legal relationships. It just outlines the aim and job of regulation, leaving the choice of methods and means of implementation to the states. The guideline also specifies a timetable for implementation. The directive, addressed to the EU member states, incorporates the principle’s “vertical” effect, which means that the direct effect applies not to individual relationships, but to mutual relationships between the state and individuals. The ECJ also stated that states’ failure to comply with the directive’s provisions should be treated as a violation of the law.[20] In turn, illegal practice or behaviour should not be used to justify a violation. In addition to the foregoing, the ECJ applied a broad interpretation of the concept of direct effect to the articles of the constituent agreements, based on the principle of self-sufficiency.[21] The ECJ concluded that all constituent acts can be directly applied (even in the absence of secondary law acts published for their development), and this is especially true for constituent act provisions outlining positive obligations or prohibitions.

The provision on implementing the concept of the immediate impact of the EU legal norms is also included in the 2004 Constitution. As a result, it imposed on those states the need to take all general or particular measures necessary to meet the responsibilities emanating from the Constitution or emerging from the effect of the institutions’ activities.

All of these considerations lead to the conclusion that whenever natural or legal persons of the member states appeal to national courts seeking protection of their rights under the EU legislation, the courts of the member states can offer them such protection.

The Integration of the EU Law into the Member States’ Legislation

According to the aforementioned concept, the rules of the EU law are automatically regarded to be integrated into the member states’ national legal systems. In other words, they have the right to have their decisions immediately enforced by national bodies or courts. This is especially true for countries that adhere to the dualist approach regarding international law (for example, Great Britain, Italy, etc.).

The constituent acts also confirmed the corresponding premise. For example, during the 1992 Maastricht Treaty on the EU, a Special Declaration on the applicability of Union normative acts was issued.[22] The importance of incorporating EU laws into national legal systems was highlighted in that paper. The incorporation of directives is given greater weight. According to the statement, the key criterion for unity and uniformity in the process of building Europe is the full and accurate absorption of directives aimed at member states into national legislation within the time frame specified.

The ECJ’s ruling of April 3, 1968, addressed issues connected to the existing concept. Hence, it is demonstrated in that decision that the provisions of the EU law permeate into national law without the assistance of measures of a national nature. The ECJ stated in its judgement in the Francovich case that the European Economic Community Treaty established the incorporation of its laws into the national legal systems of the member states.[23] This is consistent with the ECJ’s practice, where national judicial authorities are required to apply the EU law within their jurisdiction, as well as to ensure the maximum efficacy of its rules and to defend individuals’ rights.

The Judicial Protection of the EU Law

Notwithstanding the fact that EU law is binding on all subjects and is recognized and implemented uniformly, but it is meaningless without jurisdictional protection. It should also be mentioned that jurisdictional protection is an essential problem in international law. The difference is that the implementation of judicial protection within the framework of international law is carried out in accordance with the general norm, and the case is transferred to a court or arbitration body with the approval of the states involved in the dispute. In the EU, any conduct that violates EU legislation can be used to file a claim against the offending nations. The inability of member states to comply with their responsibilities, as well as disputes against the legitimacy of approved EU acts, are examined here and are heard directly by the ECJ or a court of first instance. National judicial authorities assess the damage caused by the application of European legal norms, illegal application of norms, and issues relating to illegal applications causing harm to individuals. National courts have no authority to decline to consider such cases. Because those claims are founded on Union legal principles. In this case, the plaintiff’s procedural rights must be protected by the national courts.

ECJ’s protection under the EU law is extremely complex. This system includes not only the EU’s judicial institutions but also the national judicial organisations of the member states. Nonetheless, their interaction is based on the notion of cooperation rather than subordination. A judgement issued and executed by a national judicial body is not appealable to the ECJ. Because of the pre-jurisdictional procedure, national courts can refer to the ECJ for clarification on the interpretation of the EU statutes or validity problems.[24] It should also be emphasized that over half of recent cases were evaluated by additional jurisdiction, i.e. national court institutions. Therefore, the reforms enacted after 2001 aim to strengthen judicial activity in the EU even more.

The Direct Effect of the EU Law against the Courts of the Member States

As a principle of supremacy, the direct effect, which is one of the most important principles during the rise of The EU law to the constitutional level, has developed and continues to do so as a result of the cooperation of the courts of the member states. Furthermore, the member state courts were given the status of “Court of the EU” and the task of protecting the rights of individuals was imposed on them because of this principle. The legal basis of this duty has been determined by the ECJ. Thus, the ECJ performed this duty under Article 267 of the Treaty on the EU (Maastricht Treaty). and Articles 288.[25]

The Implementation of the Principle of Direct Effect under the EU Law and its Consequences

Overall, the rules applied by various member states in this field were examined here, and the effect of the principle of a direct effect on the national laws was discussed:

  1. Belgium. According to Article 167 of the Constitution of Belgium, one of the founding members of the EU, any international agreements have special force in domestic law only after the approval of the Parliament. At the same time, the Belgian Court of Arbitration must indirectly verify the compatibility of international agreements with the Constitution. Nevertheless, the power to determine whether any international rule confers rights and duties on individuals belongs to all Belgian courts. In this context, international agreements approved by Parliament become part of national law and can be challenged by individuals in domestic courts. Individuals can also request the cancellation of domestic rules that are contrary to international laws and have the right to file a claim for the elimination of that violation and compensation against the state body that violates international agreements.[26]

The system of consent proposed for international treaties is also applicable to Union treaties. Indirectly, Union treaties need Parliament’s consent to have a direct effect on Belgian legislation. In addition, decisions of the ECJ on the direct effect of EU law are applied by Belgian courts without even a dispute. As can be seen, the general approach of Belgian courts in relation to international law has led them to unquestionably accept the principle of direct effect of the EU law. In addition, the Belgian courts, which have the authority to decide that international agreements do not have a direct effect, agree to refer the dispute to the ECJ when the interpretation of the direct effect of the EU law is the subject of a dispute. Even before the Van Duyn decision of the ECJ, the direct effect of the directives was accepted and applied by the Belgian Council of State.[27]

  1. The Netherlands. One of the countries where the force of direct influence is applied without any problem or controversy is the Netherlands. For many years, the Dutch Supreme Law did not include provisions regulating the relationship between international law and the national legal system, and such relationships were determined by court decisions. In this field, the direct influence of international legal norms in the national legal system has been assessed as legal custom. Also, the principle of indirect effect on the interpretation of the national legal norms under The EU law and the result of the Francovich case, the rule of compensation for damages to individuals existed and was applied in Dutch law before the EU.

This system is still generally applied to international law today. Therefore, the Dutch legal system is said to be unaffected by the principle of direct effect of EU law. Nevertheless, the Dutch Supreme Court confirmed in 1965 that the ECJ has the authority to decide whether any Union norm has a direct effect on the national legal system, but this situation differs from the legislation generally applied to international treaty rules. For these reasons, the Dutch courts are both willing to cooperate with the ECJ and take a positive position on the application of the decisions of the ECJ.

  1. Germany. In terms of relations between international law and national law, one of the countries based on the dualistic theory is Germany. The federative country accepted the principle of direct effect sooner than the principle of supremacy. In cases where the relationship between the EU law and German law was reflected, the German Federal Court recognized that the EU law is neither a part of national law nor international law, it is a special supranational legal system. In addition, it’s added the division of powers and cooperation between the ECJ and the German Federal Court in resolving disputes related to The EU law.
  2. The United Kingdom. In the United Kingdom, where the principle of parliamentary supremacy is the basis, the adoption of the principle of the direct effect of the EU law has not caused a big problem, but the main topic of discussion in the United Kingdom is the direct effect of the directives. The UK Courts, which accept the vertical effect in the Guidelines, welcome the rejection of the horizontal effect by the ECJ.[28]
  3. Other Member States. As an example to begin, the Supreme Law of Luxembourg does not include any rule regulating the relations between international law and national law, but if the ECJ decisions related to the influence of international agreements on domestic law are considered, it should be noted that the Luxembourg legal system has adopted the monist theory. Thus, since the 1960s, Luxembourg courts have adopted the principle of direct effect of the EU law in their decisions. In Spain, Portugal, and Greece, where the monist theory has been adopted, no problems have arisen in the acceptance of the principle of direct effect, with the positive influence of the rules under the supreme law. According to Article 28 of the Supreme Law of Greece, international agreements are directly applicable to domestic law and have supremacy over national law. Article 96 of the Spanish Supreme Law adopts a similar system and states that international agreements become part of domestic law provided they are published in the official newspaper.[29] Likewise, Article 8 of the Supreme Law of Portugal provides that duly concluded international agreements become part of national law provided they are published in the official journal.[30]

As a result of decisions of the ECJ regarding the principle of direct effect, natural or legal persons are recognized as having the right to bring a claim on the grounds that member state governments or authorized persons have violated their obligations arising from EU law or have not properly incorporated the guidelines into national law. Additionally, the local judges have the duty to interpret national legal rules in relation to the EU law and, if necessary and possible, re-formulate it under the principle of the indirect effect. Actually, it has been proposed to apply the national rules reformulated in this way to disputes between individuals, and the scope of the concept of direct influence has been expanded. In addition to all of the above, with the decision of the ECJ in 1991 in the Francovich case, individuals earned the right to claim compensation from member state governments for damages caused by the state’s failure to transpose any directive into domestic law.[31]

This legal portrait was developed as a result of the cooperation between the ECJ and national courts. Through this cooperation, the ECJ created the legal framework of the principle of direct effect and entrusted its implementation to the national courts. In the end, such cooperation was conducive to creating 2 types of relations:

1)         Hierarchical relationship;

2)         A Cooperative relationship.

The introduction of the theoretical framework by the ECJ may at first give the appearance of a hierarchical relationship. However, there is no system that can provide grounds for the approval or review of the decisions of national courts by the ECJ. Therefore, the ECJ does not have the right to verify whether the national courts have fulfilled the requirements of the concept of direct effect or reject decisions that contradict these requirements. Here, the only alternative is for the Commission to file an infringement claim before the ECJ against a state that does not behave in accordance with the EU law, but there has not been any infringement claim brought before the ECJ on the basis that the decisions of the ECJ are not applied by national courts.

Conclusion

We can draw the preliminary conclusion that national and constitutional courts recognize the supremacy[32] of the EU law only if it does not threaten the national constitution and the protection of human rights guaranteed by that constitution. In this scenario, the Constitutional Courts will exercise their right to safeguard their local constitutions from incompatible EU law or to examine the EU law in conformity with their own constitutions.

On the other hand, at least in the eyes of the courts, a few states, such as Belgium, appear to have accepted the EU legislation without reservation, owing to their more flexible constitutions. In addition, the huge number of lawsuits relating to the Treaty of Lisbon, confirms the constitutional courts’ proclivity to consider any delegation of power that looks to conflict with national constitutions or sovereignty. Despite this, the cases such as Van Gend en Loos and Costa v. The ENEL demonstrate that powers are transferred only in certain fields, and the Constitutional Courts have said unequivocally that there is no transfer of all powers. Yet, the idea of non-full acceptance of incompatible new member nations in the EU is related to the envy of democracy and newly obtained rights and freedoms in these member states, as well as a refusal to hand over power without proper diligence.

It should also be depicted that, under Article 267 of the Treaty on the Functioning of the EU, allowing the ECJ to neutralize the conflict that has arisen before coming to the constitutional court, in the case of an appeal to the ECJ under the preliminary ruling procedure. However, it also prevents a member state from directly rejecting the principle of supremacy.

As a result, the EU law has a significant impact at the Union level. It is implemented uniformly in the member states, and they should not take actions that would jeopardize the application of their acts on matters governed by the EU law. In addition to not having to adapt the acts enacted by the EU law to national law, member states are required to adapt their internal legislation to the EU law.

The list of references

[1] Trevor K. Hartley, The Foundations of The EU Law, (first published in 1998), 99.

[2] Nigel Foster, Foster on EU law, (first published in 2012, 7th ed), 3.

[3] Anneli Albi, EU Enlargement and the Constitutions of Central and Eastern Europe, (first published in 2005), 9.

[4] Karl Riesenhuber, European Legal Methodology, Intersentia (first published in 2017), 113, 151, 201, 402, 537.

[5] Damien Chalmers, Gareth Davies, The EU Law: Texts and Materials, (first published in 2010), 164.

[6] Nigel Foster, Foster on EU law, (first published in 2012, 7th ed), 3.

[7] European Communities Act [1972] c. 68.

[8] Case 106/77 State Finance Department and Simmenthal SpA, [1978].

[9] Ibid.

[10] Ibid.

[11] Case 167-73 Commission of the EU v. Republic of France, [1974].

[12] Case 39/72 European Commission v. Italy, European Court of Justice, [1973].

[13] Treaty establishing a Constitution for Europe [2004], C310, art. I(6).

[14] P-Y. Monjal, Les normes de droit communautaire, (first published in 2002), 36-41.

[15] Ibid. 170.

[16] Van Gend en Loos case, the first and leading case on this topic, the European Court of Justice clearly stated that any limitation on state sovereignty is within certain areas.

[17] Nigel Foster, Foster on EU law, (first published in 2012, 7th ed) 3.

[18] Case 26/62 Van Gend en Loos v. European Court of Justice, [1964].

[19] Case 39/72 European Commission v. Italy, [1973].

[20] Ibid.

[21] Ibid.

[22] Europa-Institut of Saarland University, European Law Selected Documents, Verlag Alma Mater, (first published in 2014 4th ed), 291.

[23] Case C-6/90 and 9/90 Francovich, Bonifaci and others v. Italy, [1968].

[24] Treaty on the Functioning of the EU, OJ C115/13, art. 267.

[25] Nigel Foster, Foster on EU law, (first published in 2012, 7th ed), 169-170.

[26] Peter Bursens, Why Denmark and Belgium have different implementation records: On Transposition Laggards and Leaders in the EU, (first published in 2002), 25 Scandinavian Political Studies 173.

[27]Case 41-74, Yvonne van Duyn və Home Office, [1974].

[28] Paul Craig, Sovereignty of the United Kingdom after Factortame (first published in 1991), 9 YEL 221, 221.

[29] Alonso Garcia, The Spanish Constitution and the European Constitution: The Script for a Virtual Collision and Other Observations on the Principle of Primacy, (first published in 2005), 6 German Law Journal 1001, 1001.

[30] Nigel Foster, Foster on EU law, (first published in 2012, 7th ed), 153-165.

[31] Case C-6/90 and 9/90 Francovich, Bonifaci and others v. Italy, [1968].

[32] This follows from the case law of the European Court of Justice that the supremacy of The EU law is a fundamental principle of Community law. According to the European Court of Justice, this principle is inherent in the specific nature of the EU. Prior to this established precedent, in the first court decision ( Costa v ENEL, July 15, 1964), supremacy was ignored in the Constitutional Treaty. This is still the case today, but the failure to include the principle of supremacy in future agreements cannot in any way change the existence of the principle and the existing case law of the European Court.

 

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