Docsity
Docsity
Prepara tus exámenes
Prepara tus exámenes

Prepara tus exámenes y mejora tus resultados gracias a la gran cantidad de recursos disponibles en Docsity

Consigue puntos base para descargar
Consigue puntos base para descargar

Gana puntos ayudando a otros estudiantes o consíguelos activando un Plan Premium

Orientación Universidad
Orientación Universidad
Vende en Docsity
Vende en Docsity
Docsity AI
Docsity AI
Inicia sesiónRegístrate

Prepara tus exámenes

Prepara tus exámenes y mejora tus resultados gracias a la gran cantidad de recursos disponibles en Docsity

Busca documentos

Prepara tus exámenes con los documentos que comparten otros estudiantes como tú en Docsity

Busca tu universidad

Encuentra los documentos específicos para los exámenes de tu universidad

Video Cursos

Estudia con lecciones y exámenes resueltos basados en los programas académicos de las mejores universidades

Quiz

Responde a preguntas de exámenes reales y pon a prueba tu preparación

Docsity AINEW

Resume tus documentos, hazles preguntas, conviértelos en quiz y mapas conceptuales

Ver preguntas

Despeja tus dudas leyendo las respuestas a las preguntas que realizaron otros estudiantes como tú

Consigue puntos base para descargar

Gana puntos ayudando a otros estudiantes o consíguelos activando un Plan Premium

Compartir documentos
download point icon20 Puntos

Por cada documento subido

Responde a las preguntas
download point icon5 Puntos

por cada respuesta dada (máx. 1 al día)

Todos los modos para conseguir puntos gratis
Consigue puntos de inmediato

Elige un plan Premium con todos los puntos que necesitas.

Oportunidades de estudio

Elige tu próximo programa de estudio

Ponte en contacto inmediatamente con las mejores universidades del mundo. Busca entre miles de universidades en todo el mundo. Busca entre miles de universidades partner oficiales

Comunidad

Pregúntale a la comunidad

Pide ayuda a la comunidad y resuelve tus dudas de estudio

Ebooks gratuitos

¡Nuestros e-books salva-estudiantes!

Descarga nuestras guías gratuitas sobre técnicas de estudio, métodos para controlar la ansiedad y consejos para la tesis preparadas por los tutores de Docsity

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

Universidad Complutense de Madrid (UCM)Derecho de la Unión Europea
Prof. Ferrer Covadonga

An overview of the principles of autonomy, direct effect, and precedence of eu law in relation to national law. It discusses the self-sufficient nature of eu law, the concept of direct effect enabling individuals to invoke european provisions before national courts, and the primacy of eu law over national law. The document also covers the conditions for direct effect, the role of national courts, and the consequences of conflicting laws.

Tipo: Apuntes

2018/2019

Subido el 24/01/2019

2211-17
2211-17 🇪🇸

4.3

(14)

16 documentos

1 / 9

Toggle sidebar

Esta página no es visible en la vista previa

¡No te pierdas las partes importantes!

bg1
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
pf3
pf4
pf5
pf8
pf9

Vista previa parcial del texto

¡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!

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

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.

Communitarian Law Vertical direct effect and only unidirectional: It only applies in cases between citizens and Member States, and engenders rights for individuals that can demand them before the State. And only when the directive is for the citizen’s benefit, not to its detriment. Public authorities cannot invoke the directive before individuals. Therefore, it does not have full direct effect like the Treaties and Regulations.

5. Vertical direct effect: invocability before the State

The CJ recognizes a double obligational content of a Directive:

  • The Member State’s obligation to transpose the Directive.
  • The obligations that the text of the Directive can impose to the Member State. If the State does not transposes the directive into national law on time —> it cannot continue applying national rules that are incompatible with the Directive. The Directive binds Member States, that must automatically comply with it and apply it as Union law with primacy. As the Directive imposes the Member States an obligation to reach a result —> this obligation won’t have efficacy if Member States were able to annul, by omitting the transposition of the Directive, the effects that its provisions could have. Concept of Sate It comprises all the public administrations. A Directive can be invoked against the State, whether it is acting as a public power, or as a mere administrator or entrepreneur. It can also be invoked before companies that manage services of public interest, by virtue of an act of public authority and under their control. Concept of individual The CJ has recognized the possibility that a public power, like a city council, can invoke a Directive against the central power. The key is that what is at stake is the compliance with a compulsory rule. The directive obliges only the Member State. If it imposes obligations for individuals (for example, if the law amended under the directive is less favourable for them), the offending Member State cannot demand their compliance. There is not reverse direct vertical effecta directive cannot, of itself (when there is no transposition), impose obligations on an individual and cannot therefore be relied on as such against that individual. Double penalty/correction for the infringing State:
  • It has to accept (is compelled to) that individuals invoke the directive to claim their rights.
  • It cannot demand the individuals to comply with the obligations that the directive could establish.

6. Horizontal direct effect

CJ: Has not accepted the horizontal direct effect (Judgements Marshall, Facini Dori)

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

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.

Communitarian Law Certain Constitutional Courts (like the German and the Italian) have not rejected a constitutional control of EU secondary acts. The EU act and the national act would be valid and applicable, each one in their respective legal orders. The EU act would have lost its efficacy at the national legal order that has resolved its unconstitutionality. And the Member State will be infringing the EU Treaties. Every Member State must adapt its Constitution before its accession to the EU, or before ratifying any amendment of the Treaties; necessary to allow that the EU law produces its effects fully. The Spanish Constitution (as other Constitutions) has a procedure to ensure the conformity of the Treaty with the Constitution prior its ratification; in order to know if a revision of the Constitution would be necessary prior the ratification, or if negotiations must continue until the content of the Treaty is compatible with the Constitution.

1. Constitutional limits for the conferral of competence

Primacy has an absolute an unconditional character: It has not been accepted by all Constitutional and Supreme Courts of Member States. E.g.: German Constitutional Court (sentence of 2009 regarding Declaration 17 annexed to the Final Act of IGC 2007 –primacy-) Many have established limits to the integration: They are focused in the hard core of sovereignty and the national identity, including the fundamental rights. Primacy is not admitted in case of an evident conflict with the provisions of the constitutional texts.

2. Case-law of the Spanish Constitutional Court

Declaration 1/1992:

  • By virtue of Article 93 the Spanish Parliament may transfer or attribute the exercise of “powers derived from the Constitution”, but it cannot dispense with the Constitution itself, contravening or allowing a contravention of its provisions
  • Constitutional provisions cannot be contradicted without an express constitutional amendment
  • Therefore, the limits is a direct textual contradiction between the Constitution and one or several provisions of a treaty Declaration 1/2004: Article 93 CE is a basic constitutional support for the integration of other legislations into our own, through the transfer of the exercise of competences resulting from the Constitution:
  • The integration impose unavoidable limits to the sovereign faculties of the State, acceptable only when European legislation is compatible with the fundamental principles of the social and democratic State of Law established by the national Constitution.
  • Consequently, the constitutional transfer enabled by Art. 93 CE is subject to material limits imposed on the transfer itself. Said material limits are not expressly included in the constitutional precept, but result implicitly from the Constitution and from the essential meaning of the precept itself: respect for the sovereignty of the State, or our basic constitutional structures and of the system of fundamental principles and values set forth in our Constitution, where the fundamental rights acquire their own substantive nature (Art. 10.1 CE). The CC admits that the primacy proclaimed in the Treaty which lays down a Constitution for Europe operates with regard to a legislation which is built on the common values of the constitutions of the states integrated into the Union and their constitutional traditions.