Supremacy of Community Law in the Practice of the National Courts of the Member States

1981 ◽  
pp. 663-718
Author(s):  
Gerhard Bebr
Keyword(s):  
Member States ◽  
Community Law ◽  
National Courts

Other types of secondary legislation immediately place legal obligations directly into the legal system of all Member States. These are binding in their entirety and said to be directly applicable. Still other types place legal obligations directly upon certain named States, individuals and organisations. (4) The treaties, regulations and directives enacted by the Union do not directly state that they give individuals rights that they can enforce in their national courts. These legal rules are addressed in the first place to the Union and the Member State. Yet under the founding treaties Member States are expected to enforce the rights, liabilities and powers that are a consequence of membership in national courts. The ECJ has developed the concept of direct effect which describes EC primary or secondary law that give individuals rights that are enforceable in their national courts. Set criteria have to be present. Direct effect is easier to prove in relation to regulations than it is in relation to articles and directives. The criteria demand that: • the rule does not require any action from the State (and directives do); and • that the right to be enforced is clear and precise and can be activated without recourse to the State (which is not the automatic case in relation to articles in a treaty concluded at State level or a directive issued to the State demanding certain outcomes within a timescale). However, articles and directives considered on a case by case basis by the European and national courts have been held to give individuals rights. The case of Van Gend en Loos discussed later in this chapter deals with direct applicability and direct effect of articles. (5) A major difficulty is caused by the lack of uniformity of terms in relation to ‘directly applicable’ and ‘direct effect’. ‘Directly applicable’ is the phrase used in Article 249 (formerly 189) of the EC Treaty to refer to the process by which Community law of certain types is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. ‘Direct effect’, which is not a phrase occurring in any of the treaties, is the phrase consistently used in the ECJ in two senses to refer to: • the process by which individuals acquire rights they can enforce in national courts (against other individuals—horizontal direct effect, and against the State itself—vertical direct effect); and • the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. This is confusing, especially as some Community law that is created by Article 249 (formerly 177) of the EC Treaty is not said in the Treaty to be directly applicable in the sense of immediately and automatically becoming part of the legal system of Member States. Yet the ECJ has held that such law can, if certain criteria are present, have direct effect. In fact, they have gone one step further and constructed the concept of indirect effect. It is indirect precisely because the law is not directly applicable but somehow an individual can enforce it in a national court.

2012 ◽  
pp. 157-157
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
National Court ◽  
State Level ◽  
The State ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Legal Obligations ◽  
The Right

Enforcing ECOWAS Law in West African National Courts

2011 ◽  
Vol 55 (2) ◽  
pp. 181-202 ◽  
Author(s):  
ES Nwauche
Keyword(s):  
Regional Integration ◽  
West African ◽  
Legal Systems ◽  
Economic Community ◽  
The West ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
The Law

AbstractOne of the constitutional challenges of regional integration is how to manage the limitation of national judicial sovereignty of member states to ensure that community law is recognized as superior to national law and is accordingly applied and interpreted by national courts at the instance of community citizens. This challenge arises from the national ordering of legal systems and the fact that states are the primary parties to agreements in which they limit their sovereignty in favour of the success of the community. This article examines the enforceability of the law of the Economic Community of West African States in the national courts of the West African states which comprise ECOWAS, with the aim of determining how this affects the integration goals of ECOWAS.

From a pragmatic point of view there is a need to accept this confusion, and seek to derive the meaning of the phrase from its context. Some legal academics advise forgetting the issue, which is like running away, and does create further confusion. The courts use the phrase synonymously. The EC Treaty, however, remains silent about individual rights in national courts and only uses the term ‘direct applicability’ to refer to the process by which EC law is immediately and automatically part of the legal system of Member States as soon as it is created in the EC. For the purposes of explaining some of the issues surrounding EC law, this text will assume the artificial distinction between direct applicability and direct effect. It will assume therefore that ‘directly applicable’ applies to the process of automatic assimilation into the legal systems of Member States and that ‘direct effect’ refers to individuals deriving rights from Community law enforceable in national courts. Remember, however, that the terms tend to be conflated. These matters will now be set out as a series of tables and diagrams to assist you in the development of understanding.

2012 ◽  
pp. 158-159
Keyword(s):  
Direct Effect ◽  
Legal System ◽  
Point Of View ◽  
Individual Rights ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Running Away ◽  
Ec Law ◽  
Direct Applicability

The Union is the direct successor to the three communities that were set up in the 1950s by six European States. Just as over time the references to the three Communities became one reference to the ‘European Community’, now the supranational organisation that is referred to has grown since 1992 and the general name by which it is known is no longer the European Community, but the European Union. Clearly the Union is a much larger entity than the Community, as can be seen from the list of the three areas covered by the Union set out above. But the idea of a large Union had always been within the documents setting up the European Community. The Community remains intact—but as one of three spheres of activity. However, concentrated within the Community are the lawmaking powers of the Union. The Union was established by the Treaty of Maastricht 1992 and the Treaty of Amsterdam 1997 (both formally called the Treaty on European Union (TEU)). The same institutions that had served the three Communities were enlarged to serve the Union. The Treaty of Nice in 2000 made further steps towards altering aspects of the institutions of the Union to be ready for enlargement of the number of Member States who were to become part of the Union from 2004. In coming years, the nature of the Union will become increasingly streamlined as it grows in size. The Treaty of Nice reached major agreement on the simplification of the voting procedures for the enactment of secondary legislation, and declared adherence to the Union’s proposed Charter on Fundamental Rights. The terms of reference for the next inter-governmental conference on the Union will consider the simplification of the founding treaties into one new treaty. There are therefore more changes ahead that will affect law students! For all public intents and purposes, there is now only the Union. The official website http://europa.eu.int only refers to European Union and within its legal pages speaks of European Union law. However, it remains true to say that to use that term is technically incorrect. The Union has no law making powers outside those conferred by the founding treaties of the Community, so the appropriate phrase is Community law or European Community law (EC law), not Union law. The next section will deal with the basic consideration of the historical development of the European Community and European Community law. It will lay out the treaties of importance and note the different types of law, and the mechanisms for Community law having an effect within the legal systems of Member States. The legal systems of the Member States are often referred to by the term ‘domestic law’, a metaphoric use of ‘domestic’ linking it to ‘home’. The courts in Member States tend to be referred to by two phrases: ‘domestic courts’, or ‘national courts’. As already noted, whilst much smaller than the ever-growing Union, the Community contains the law making powers of the Union, and therefore it determines its legislative competency. The next section will also attempt to draw attention to areas where name changes have lead to confusion. Despite the wholesale use of the term ‘European Union’ it is useful to deal with name changes incrementally by going back to the creation of the Community and tracing its development into the Union. Those matters chosen for discussion are those most likely to be problematic and necessary to properly understand from the perspective of legal method.

2012 ◽  
pp. 145-145
Keyword(s):  
European Union ◽  
European Community ◽  
Legal Systems ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Set Up ◽  
Name Changes ◽  
Law Making ◽  
European Community Law

Does the Codification of the Principle of Supremacy Matter?

2005 ◽  
Vol 7 ◽  
pp. 57-79 ◽  
Author(s):  
Per Cramér
Keyword(s):  
European Court Of Justice ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
National Institutions ◽  
European Court ◽  
The Absolute ◽  
The Law

A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.

Does the Codification of the Principle of Supremacy Matter?

2005 ◽  
Vol 7 ◽  
pp. 57-79
Author(s):  
Per Cramér
Keyword(s):  
European Court Of Justice ◽  
Member States ◽  
Community Law ◽  
National Courts ◽  
Constitutional Principle ◽  
Court Of Justice ◽  
National Institutions ◽  
European Court ◽  
The Absolute ◽  
The Law

A little more than four decades ago, the European Court of Justice declared that the law of the European Communities constitutes the supreme law of the Member States. The national institutions, most importantly the national courts, were to apply rules of Community law and, in so doing, were required to set aside conflicting provisions of national law, however framed. Since then, this judicially formulated constitutional principle has been developed and restated in later judgments by the ECJ. However, during the same period the absolute character of the principle has been continually challenged by the Member States.

The preliminary ruling procedure at the court of justice of the European Union and transformation of European anti-discrimination law

2020 ◽  
Vol 2020 (3) ◽  
pp. 66-72
Author(s):  
Elena Sorokina
Keyword(s):  
Legal System ◽  
Essential Feature ◽  
Preliminary Ruling ◽  
The European Union ◽  
Judicial Cooperation ◽  
Member States ◽  
National Courts ◽  
Court Of Justice ◽  
Protection Of Human Rights ◽  
The Eu

The preliminary ruling procedure is an essential feature of the EU legal system, which is a unique cooperation tool as part of the dialogue between the Court of Justice of the EU and national courts of the Member States. Its main purpose is to ensure uniform interpretation and application of the provisions of EU law with all Member States and to preserve the uniformity of the European legal system. The continuous use by national courts of the Member States of the mechanism of preliminary ruling and constructive inter-judicial cooperation, the Court of Justice has developed an extremely extensive case law on the prohibition of discrimination and with the result to introduce substantial changes in European anti-discrimination law.The preliminary rulings of the Court of Justice have shown its inclination to expand notions of what constitutes discrimination and in most cases the Court prompt by the desire to interpret the provisions of European law so as to ensure the full effectiveness of the law, as well as a willingness to promote and strengthen protection against discrimination in Europe. While the protection against discrimination on some grounds is stronger than others, however, the preliminary rulings of the Court of Justice are important contribution to the transformation of anti-discrimination law, promote change in the national legislation of the Member States and provide the more effective protection of human rights in general.

Review by Constitutional Courts of the Obligation of National Courts of Last Instance to Refer a Preliminary Question to the Court of Justice of the EU

2015 ◽  
Vol 16 (6) ◽  
pp. 1663-1700 ◽  
Author(s):  
Clelia Lacchi
Keyword(s):  
European Union ◽  
Eu Law ◽  
The European Union ◽  
Constitutional Courts ◽  
Member States ◽  
Constitutional Review ◽  
National Courts ◽  
Court Of Justice ◽  
Judicial Remedy ◽  
The Eu

The Constitutional Courts of a number of Member States exert a constitutional review on the obligation of national courts of last instance to make a reference for a preliminary ruling to the Court of Justice of the European Union (CJEU).Pursuant to Article 267(3) TFEU, national courts of last instance, namely courts or tribunals against whose decisions there is no judicial remedy under national law, are required to refer to the CJEU for a preliminary question related to the interpretation of the Treaties or the validity and interpretation of acts of European Union (EU) institutions. The CJEU specified the exceptions to this obligation inCILFIT. Indeed, national courts of last instance have a crucial role according to the devolution to national judges of the task of ensuring, in collaboration with the CJEU, the full application of EU law in all Member States and the judicial protection of individuals’ rights under EU law. With preliminary references as the keystone of the EU judicial system, the cooperation of national judges with the CJEU forms part of the EU constitutional structure in accordance with Article 19(1) TEU.

The Supremacy of Community Law in National Courts

1979 ◽  
Vol 42 (2) ◽  
pp. 220-223
Author(s):  
David Freestone
Keyword(s):  
Community Law ◽  
National Courts

scholarly journals From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?

2007 ◽  
Vol 9 ◽  
pp. 81-109 ◽  
Author(s):  
Alan Dashwood
Keyword(s):  
European Community ◽  
Direct Effect ◽  
Golden Age ◽  
Early Years ◽  
Community Law ◽  
Constitutional Order ◽  
National Courts ◽  
Court Of Justice ◽  
Intellectual Influence ◽  
European Community Law

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

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