THE EUROPEAN COURT OF JUSTICE AND

THE SUPREMACY OF EC LAW

I.

INTRODUCTION
In the making and promulgation of Community law, the European Court of

Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are
not to be found in the Treaties, or secondary EC legislation, but in the case law of the
European Court.
No provision of the Treaty on European Union (TEU) contains an express
term regulating the issue of the supremacy between the Community and the various
national laws of the Member States. The only implied reference to the issue of
supremacy is Article 10 of the TEU which imposes a duty on all Member States to
adopt appropriate measures to ensure that the obligations of the Treaty are observed,
together with an additional duty to abstain from all acts which might jeopardise the
achievement of the objectives of the Treaty.
Article 10 states that:
Member States shall take all appropriate measures, whether general or
particular, to ensure fulfillment of the obligations arising out of this Treaty or
resulting from action taken by the institutions of the Community. They shall
facilitate the achievement of the Communitys tasks.
They shall abstain from any measure which could jeopardise the attainment of
the objectives of this Treaty..
Thus, the principle of the supremacy of Community law over national law was
first established by the European Court of Justice whose role is explicitly stated in
Article 220of the TEU:

The Court of Justice shall ensure that in the interpretation and application of

2
this Treaty the law is observed.
Prior to an analysis of the doctrine of supremacy and the relevant case law and
implementation of the doctrine, an introduction into the composition, structure and
practices of the European Court of Justice (ECJ) will be followed.
2. THE EUROPEAN COURT OF JUSTICE

Composition and Structure

The ECJ, to which the Court of First Instance (CFI) is attached, is the judicial
branch of the Community. It has been described by Shaw as a heroin figure in the
development of the EU. The ECJ, which sits in Luxembourg, now has 15 judges who
are assisted by 9 Advocate-Generals (AGs). Each Member State (MS) is entitled to
appoint a judge of its own nationality.
The appointment of all judges is required by Article 223 TEU to be:
by common accord of the Governments of the Member States.
The term of office is six years and the appointment of new judges or
reappointment (for another term) of the existing judges is staggered so that there will
be a partial replacement of judges every 3 years.
The judges select one of their number to be President of the Court for a
renewable term of 3 years. The President directs the work of the Court and presides at
hearings and deliberations.
The ECJ is assisted by 9 AGs. Five of the 9 AGs should be appointed by the 5
largest Member States, the remaining to be appointed by the other Member States on
a system of rotation. Their duty, which is set out in Art. 222 TEU is,

3
to make, in open court, reasoned submissions on cases brought before the
ECJ with complete impartiality and independence.
The qualifications for selection, method of appointment and conditions of
office of the Attorney Generals are the same as for the judges of the Court.
The qualifications for selection as a judge of the ECJ are stated in Article 223
TEU and require:
persons whose independence is beyond doubt and who possess the
qualifications required for appointment to the highest judicial offices in their
respective countries or who are jurisconsults of recognised competence.
Furthermore, judges may not hold any other political or administrative office
while they are members of the Court.
In accordance with their respective traditions, certain Member States have
appointed academics to sit as judges, whereas others such as the U.K. have
nominated existing national judges or practicing advocates.
Although states tend to select their own nationals, the Treaty clearly requires
that the judges be entirely independent of their national governments. Judging from
the nature of the ECJs jurisprudence, the wishes of individual Member States have
had little influence on its decisions-making.
Under Article 221 TEU the ECJ is permitted to sit in Chambers of 3 or 5 as
well as in plenary session. The court will, however sit in plenary session when a
Member State or a Community Institution which is party to the proceedings so
requests, or in particularly complex or important cases.
The organisation of the Court is regulated by a separate Protocol to the EC
Treaty Protocol on the Statute of the Court of Justice.

4
Matters of procedure are regulated by this Protocol, including the content of
oral and written pleadings, citation of witnesses, costs and expenses etc.
The problem of over burdening the Court apparently continues to grow despite
the temporary easing of the caseload which the establishment of the CFI, in 1988
initially brought about.
Other than the appeal on a point of law from the decisions of the CFI to the
ECJ, there is no further appeal from the judgments of the ECJ, which is the ultimate
or supreme Court of the EC.
The Court of First Instance (CFI)

Composition

The Single European Act, (1988) authorised the Council of Ministers to create
a CFI to alleviate the volume of work before the ECJ.
The aim of the creation of the CFI in 1989 was to strengthen the judicial
safeguards available to individuals by introducing a second tier of judicial authority
and enabling the ECJ to concentrate on its essential task, the uniform interpretation of
Community law.
The CFI consists of 15 judges who are appointed by agreement between
Member States for periods of 6 years. There are no permanent AGs. The duties of an
AG are performed by one of the judges.

Jurisdiction

The CFI does not extend the jurisdiction of the ECJ, but rather, it exercises
certain aspects of the Courts functions.
The jurisdiction extends to the following classes of cases:

5
-

staff cases

competition cases

cases under the ECSC Treaty

anti-dumping cases

It has no jurisdiction to hear preliminary rulings.

Furthermore, according to Art. 225 TEU, decisions of the CFI are subject to an
appeal to the ECJ on points of law only.
Enforcement of EC Law in Domestic Courts
Like any true legal system, the Community legal system needs an effective
system of judicial safeguards when Community law is challenged or must be applied.
The ECJ, as the judicial institution of the Community, is the backbone of that
system of safeguards. It is responsible for interpreting questions of EC law and
provision is made in the Treaty for references to the ECJ by national courts. Decisions
of the ECJ, upon a reference, are reached by majority vote and are binding on all
domestic courts of all Member States. Under Article 234 TEU it is provided that:
The Court of Justice shall have jurisdiction to give preliminary rulings
concerning
(a) The interpretation of the Treaty;
(b) The validity and interpretation of acts of the institutions of the
Community
where such a question is raised before any court of a Member State that
court may, if it considers that a decision on the question is necessary to enable
it to give judgment, request the ECJ to give a ruling..Where any such
question is raised before a court of a Member State against whose decisions
there is no judicial remedy under national law, the courtshall bring the
matter before the Court.

It is through this Article that the ECJ has achieved the principle of supremacy
and its uniform application in all Member States when Community law may be in
conflict with domestic legislation. In CILFIT (1983) the ECJ emphasised that the
purpose of the then Art. 177 was to ensure the proper application and uniform
interpretation of EC law in all Member States.
However, preliminary references procedure depends on the effectiveness of
cooperation between the ECJ and national courts. The power to ask for a preliminary
ruling rests solely with the national court and the power of the ECJ is limited to an
interpretation of EC law.
In procedural terms, individuals still have no right of appeal to the ECJ and the
national court can decide whether a reference is necessary; the Courts judgements are
still, in theory, at least, only given on points of interpretation and validity.
However, following the many changes that the Community has gone under,
the ECJs role has been evolutionary, siting at the apex of the Community judicial
hierarchy. The increasing emphasis which the ECJ places on Article 10 TEU,
rendering Community law applicable to national courts as well as to the political arm
of Member States, is merely one important manifestation of this process in operation.
The Community as a whole is in a state of transition, and it would be
surprising if the relationship between the ECJ and the national courts were to remain
immune from the wider changes. As the Community moves towards a closer social
and political union, one could well expect the ECJ to cement its position at the apex
of the judicial hierarchy.

III.

THE DOCTRINE OF SUPREMACY PRINCIPLE

The ECJ, as the guardian of legality and instrument of cohesion within the

Community, has, from the start been in a strong position to define the status of

7
Community law and to give it precedence when in conflict with the national legal
systems of the various Member States.
The first case where the Court made a statement on the nature of European
law is the famous case of Van Gend en Loos v. Netherlands (1963) dealing with the
principle of direct effect of EC Treaty provisions and the degree to which individuals
can rely on such terms to challenge measures of national law.
In that case, which will be dealt with in detail later on, the ECJ stated that:
The objective of the EEC Treaty, which is to establish a Common Market, the
functioning of which is of direct concern to interested parties in the Community,
implies that this Treaty is more than an agreement which merely creates mutual
obligations between the contracting states
The Community constitutes a new legal order of international law for the
benefit of which the states have limited their sovereign rights, albeit within limited
fields, and the subjects of which comprise not only Member States but also their
nationals.
The reasoning of the Court in the case is brief and apart from its elaboration
on the concept of direct effect, where it stressed the need for direct enforcement by
national courts of Community norms, little more was said about the need for national
courts to accord primacy to EC law over conflicting national law. The Courts focus in
Van Gend was on whether Article 12 (customs duties on imports from Member States
to other Member States) could give rise to so-called direct effects - the immediate
enforceability in national courts by individual applicants of Treaty provisions - so that
an individual could rely on and have that Article enforced before domestic courts.
The approach of the Court was based on the Courts vision of the kind of
Community which those Treaties had set out to create, and the kind of legal system
which the effective creation of such a Community would necessitate.

8
It was in a second important case, two years later, however, that the ECJ
expanded on its constitutional theory of the Community, declaring again that the
states had created a sovereign Community by limiting their own sovereign rights.
The case was Costa v. ENEL 1964 and the facts were as follows:
An individual was claiming before his local court that the law nationalising
production and distribution of electricity was incompatible with the EC Treaty. The
local court referred the question to the ECJ for a preliminary ruling.
The ECJ in its judgment emphasised the unlimited duration of the Community,
the autonomy of Community power, both internally and externally, and especially the
limitation of competence or transfer of powers from the states to the EC.
The Court was determined to show that the words and spirit of the treaty
necessarily implied that:
It is impossible for the states to set up a subsequent unilateral measure
against a legal order which they have accepted on a reciprocal basis.
The Court found the primacy of EC law confirmed by the wording of Article
189 EC Treaty1 under which regulations have binding force and are directly
applicable in all Member States.
The Court pointed out that this provision which is not qualified by any
reservation would be meaningless if a state would unilaterally nullify its effect by
means of legislative measures which could prevail over EC law.
The Court was thus able to reach a conclusion in Costa in words which have
become classic and have had considerable influence in national decisions:
It follows from all these observations that the law stemming from the Treaty,
an independent source of law could not, because of its special and original nature, be
1

now Art. 249 TEU.

9
overridden by domestic legal provisions, however framed, without being deprived of
its character as Community law and without the legal basis of the Community itself
being called into question.
The transfer by the states from their domestic legal system to the Community
legal system of rights and obligations arising under the Treaty carries with it a
permanent limitation of their sovereign rights against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail.

As in the case of Van Gend, the Court made no reference to the constitution of any
particular Member State to see whether such a transfer or limitation of sovereignty
was contemplated or even was possible in accordance with that constitution.

Furthermore, the Court drew on the spirit and the aims of the Treaty to conclude
that it was impossible for the Member States to accord primacy to domestic
laws.
The spirit of the Treaty required that they all act with equal diligence to give full
effect to Community laws which they had accepted on the basis of state
reciprocity meaning presumably that since each state was equally bound by
laws passed for the Community as a whole, they had all agreed that no one of
them would unilaterally derogate from Treaty obligations. And since the aims of
the Treaty were those of integration and co-operation, their achievement would be
undermined by one Member State refusing to give effect to a Community law
which, should bind all.
In Van Gend and Costa v. Enel the Court set out its theorical basis for the

principle of supremacy of Community law. The force and practical application of the
principle became clearer still in its later decisions.
In the following case, the Court made clear that the legal status of a conflicting
national measure was not relevant to the question whether Community law should

10
take precedence: not even a fundamental rule of national constitutional law could, of
itself, be invoked to challenge the supremacy of a directly applicable EC law:
Internationale Handelsgesellschaft v. Einfuhr (1970)2
Recourse to the legal rules or concepts of national law in order to judge the
validity of measures adopted by the institutions of the Community would have an
adverse effect on the uniformity and efficacy of Community law. The validity of such
measures can only be judged in the light of Community law.
The validity of a Community measure or its effect within a Member State cannot
be affected by allegations that it runs counter to either fundamental rights as
formulated by the constitution of that state or the principles of a national
constitutional structure.
This decision gave rise for some time to a potentially serious deadlock in relations
between the German Constitutional Court, which held that the Community deposit
system breached a fundamental provision of the national legal order, and the ECJ,
which denied that national constitutional principles could have any effect on the
domestic applicability of Community law.
But far from backing off from its claims, the Court continued to emphasise the
importance of ensuring that the supremacy of Community law was not simply a
matter of principle or of theory only, but was given practical effect by all national
courts in cases arising before them.
It is however, interesting to note that following this case, the ECJ evolved the
concept of EU fundamental rights declaring them to be general principles of law that
the Court will apply within the framework of Community law
In Simmenthal SPA (1978) an Italian judge was faced with a conflict between a
Council Regulation on the common organisations of the market in beef and veal and
the Italian veterinary and public health laws.
2

Case 11/70 (1970) ECR 1125; (1970) CMLR 255.

11

Under Italian law, domestic legislation contrary to EC Regulations may be held to

be unconstitutional but only by such declaration from the Constitutional Court and not
by the ordinary courts.
Should the Italian judge of First Instance disregard inconsistent national
legislation without waiting for its repeal from the Constitutional Court?
In a reference to the ECJ on the question, the latter held that the national court was
under a duty to give full effect to Community law even where there was a conflicting
provision of national law and without waiting for a higher court to rule on the matter.
Every national court must.apply Community law in its entirety and protect
rights which the latter confers on individuals and must accordingly set aside any
provision of national law which may conflict with it, whether prior or subsequent to
the Community rule.
Simmenthal is an interesting case, since it spells out the practical implications
for the Community legal order of the principles of supremacy and direct effect.
The facts of it highlighted a further problem for national courts: what if the
national court was one which had no jurisdiction in the domestic legal system to
question or to set aside national legislative acts?
The clear implication of the Courts response was that, even if the only national
court empowered to pronounce on the constitutionality of a national law is the
Constitutional Court, nevertheless, if such a case arises before any other national
court, that court is bound to give immediate effect to Community law without
awaiting for the ruling of the Constitutional Court.
We therefore see how Community law has conferred on domestic courts
indeed how it has required them to exercise powers and jurisdiction which they did
not have under national law. The key emphasis in these decisions is on the principle of
effectiveness.

12

This certainly became clear in the U.K. after the ruling in the well-known
Factortame litigation (1990), on the question of interim relief against a provision of
national law which appeared to conflict with one of Community law.
The facts of the case were as follows:
The U.K. Merchant Shipping Act 1988 operated to exclude from registration
for purposes of fishing permits 95 fishing vessels owned by Spanish nationals who
challenged the Act on the basis of breach of the EC Treaty (discrimination by
nationality). The U.K. Court asked the ECJ for a preliminary ruling. In the meantime,
interim relief was granted and then lifted on the basis that that remedy did not lie
against the Crown in English law.
The ECJ ruled that interim relief must be available and that this obligation
overrode conflicting domestic principles. The domestic court was required to set aside
national law, if that would have prevented the grant of interim relief giving effect to
EC law.
This was required to enable effective enforcement of Community law:
..the full effectiveness of Community law would be just as much impaired
if a rule of national law could prevent a courtgranting interim relief in order to
ensure the full effectiveness ofCommunity law.
According to Lord Bridge of the House of Lords,
If the supremacy within the European Community of Community law over
the national law of Member States were not always inherent in the EEC Treaty, it was
certainly well established in the jurisprudence of the ECJ.
Thus, in so far as the Court was concerned, by 1990, the principle of
supremacy of Community law and its practical effectiveness amongst Member States
were established beyond question.

13
However, the theorys practical application is ultimately dependent on the
internal acceptance and adaptation of the constitutional orders of the Member States.
And as AG Roemer noted in Van Gend en Loos the constitutional orders of some of
the Member States do not easily accommodate the principle of supremacy.
The accommodation so far reached by the courts of various Member States on
this issue will now be examined. For reasons of time, only some Member States will
be discussed, although every state has its own interesting constitutional perspective to
offer.

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IV.

THE PRINCIPLE OF SUPREMACY IMPLEMENTATION

MEMBER STATES

Under Public International Law (PIL), there are 2 conceptions regarding the
transfer or delegation of sovereign powers to international organisations:
Monism

Dualism

PIL+ national law part of one single

PIL + national law separate systems,

system with PIL taking precedence.

each supreme within its own spheres.

ie Dutch + French constitutions provide that

ie UK here you need incorporation of

duly ratified international obligations preside

PIL into national law by national Act of

over municipal law.

Parliament in the form of a statute

Also, Belgian courts achieved the same result

BA v. Laker and Blackburn case

in absence of explicit constitutional provision

European Communities Act, 1972.

by proclaiming that international obligations

have effect superior to domestic law.

directly speak of transfer powers.

always seeking statutes to conform to EC law.

In practice, there is little difference in the application of EC law.

In France, there was not any particular constitutional problem since the
constitution provides that international treaties have a direct effect and are accorded
supremacy.
In accordance, Article 55 of the French Constitution of 1958 states that:
Treaties or agreements duly ratified or approved shall..have an authority
superior to that of Laws.
However, the Conseil dEtat, the supreme administrative court had difficulties
in accepting the supremacy of Community law.

15

In the case of Semoules (1970), the problem was expressed as a jurisdictional

one: The Conseil dEtat ruled that, since it had no jurisdiction to review the validity of
French legislation, it could not find such legislation to be incompatible with
Community law, nor could it accord priority to the latter. Decisions on the
constitutionality were matters for the Conseil Constitutionnel the Constitutional
Council.
However, in the Jacques Vabres case in 1975, the Court of Cessation Cour de
Cassation the highest of the ordinary judicial Courts took a different view and
ruled that when a conflict exists between an internal law and a duly ratified
international act which has thus entered the internal legal order (Art. 55 of the
Constitution) the Constitution itself accorded priority to the latter.
It was not until 1989 in Nicolo case, however, that the Conseil dEtat finally
abandoned its so-called splendid isolation and decided to adopt the same position as
the Conseil Constitutionnel and the Cour de Cassation.
The caution displayed by the French Conseil dEtat in its approach to the
supremacy of Community law is evident in the case law of many other Member
States. The Court of Justices view that national law can never take precedence over
directly effective EC law on account of a transfer of sovereignty by the Member
States and the spirit of the EC Treaty is not unconditionally accepted by the courts
of Member States. In France, the main obstacle to the recognition of supremacy of EC
law was the jurisdictional limitation of the French courts. In other Member States, in
particular in Germany, the difficulties which arose related to the fundamental
constitutional nature of the national legislation which appeared to contravene
Community law.
Article 24 of the German Constitution allows for the transfer of legislative
power to international organisations, but in litigation which arose over apparent
conflicts between Community legislation and provisions of the German Constitution,
the extent of power which would be transferred in accordance with this Article was
questioned.

16
In particular, the focus of the case law was on whether Article 24 permitted the
transfer, to an organisation outside the German constitutional structure of a power to
contravene certain basic principles protected under the Constitution itself.
Following the ECJs ruling in Internationale Handelsgesellschaft, the German
Administrative Court ruled that the compulsory scheme regarding the Community
deposit system breached basic principles of German constitutional law (compulsory
payment of money cannot be imposed in the absence of fault) and it requested a ruling
from the Federal Constitutional Court.
The latter refused to recognise the unconditional supremacy of Community
law. The major objection was a concern over the possible impact on basic rights
enshrined in the German Constitution of conflicting measures of Community law. For
this reason, it held that the clause in the German Constitution which allowed for the
transfer of legislative power to international organisations would not cover a transfer
of power to alter or amend an inalienable essential feature of the German
constitutional structure, such as its express protection for fundamental rights. It
concluded by saying that the protection for fundamental rights in the German
Constitution would have to prevail in the event of any conflict.
Having considered various changes in Community law since the time of the
1974 decision, including the development by the ECJ of a doctrine of protection for
fundamental rights, and the fact that all Member States by this stage acceded to the
European Convention of Human Rights, the German Court in Solange II (1987) held
that:
So long as the European Communities, and in particular the case law of the
European Court, generally ensure an effective protection of fundamental rightsthe
Court will no longer exercise its jurisdiction
More recently, in Brunner v. the European Union Treaty (1994) the Court had
to consider the constitutional relationship between EC law and German law, on the
occasion of the ratification of the TEU. It ruled that ratification was compatible with
the Constitution.

17

The judgment shows that the constitutional court asserts and clearly intends to
exercise a power of review over the scope of Community competence. Even if the
German courts have accepted that Community law should be given precedence over
national law, the constitutional court has made clear that it will continue to review the
actions of European institutions and agencies to ensure that they remain within the
proper limits of their acquired powers.
In the United Kingdom, the acceptance of the supremacy of Community law
has certainly not been unproblematic. Since the British Constitution is largely
unwritten, it is difficult to speak of amending it. The central obstacle to acceptance
by the U.K. of supremacy of EC law is the fundamental constitutional principle of the
sovereignty of Parliament. According to this principle, Parliament has the power to
do anything other than to bind itself for the future. According to Dicey,
Parliament has, under the English Constitution, the right to make or unmake
any law whatever and no person or body.has the right to override or set aside the
legislation of Parliament.
Furthermore, the doctrine of implied repeal means that no Parliament can bind
its successor, and no Parliament can be bound by its predecessor. Any Act is thus
vulnerable to change by a future Parliament.
With those problems in mind, it was nevertheless decided to give internal legal
effect to Community law by means of an Act of Parliament (dualist state): the
European Communities Act, 1972.
Section 2(1) establishes a legal basis within domestic law for directly
applicable EC laws
as in accordance with the Treaties and without further legal enactment to be
given legal effect or use in the U.K and shall be recognised and available in law.

18
The section aims to make the concept of direct effect a part of the U.K. legal
system. It states that law which under the EC Treaties is to be given immediate legal
effect, is to be directly enforceable in the UK.
Section 2(4) accords existing and future priority to EC laws.
Any enactment passed or to be passed.shall be construed and shall have
effect subject to the foregoing provisions of this section.
Furthermore, section 3 states that:
For the purposes of all legal proceedings any question as to the meaning or
effect of any of the Treaties, or as to the validity, meaning or effect any Community
instrument, shall be treated as a question of law and, if not referred to the European
Court, be for determination as such in accordance with the principles laid down by
and any relevant decision of the European Court or any Court attached thereto.
It is therefore apparent that the supremacy of EC law is recognised in the U.K.
by virtue of domestic legal processes and legal theory.
The principle of supremacy was in theory recognised by English judges.
Despite earlier judicial comments to the contrary, the English Master of the
Rolls, Lord Denning, in the case of Shields v. Coomes (Holdings) Ltd (1979)
demonstrated a willingness to accept the principle of supremacy of Community law.
In Bulmer v. Bollinger (1974) he furthermore held that:
The Treaty is like an incoming ride. We must no longer speak or think of
English law, as something of its own. We must speak and think of Community law, of
Community rights and obligations and we must give effect to them.
But again, this did not prevent judicial difficulties from arising over the
practical recognition of the supremacy of EC law over national law.

19
In Macarthys v. Smith, a genuine conflict appeared to arise between Article
119 of the EC Treaty concerning equal pay and section 1 of the Equal Pay Act 1970 in
the U.K.
It was held by the Court of Appeal that priority

should be given to

Community law following section 2(1) and (4) of the European Communities Act,
1972.
Here, then, is the judicial reconciliation of Parliamentary Sovereignty with the
supremacy of EC law. But the overriding of the Act of Parliament is to be seen as a
fulfillment of the Parliamentary intention the intention to comply with directly
effective Community law and if it is made clear that the legislative contravention of
Community law was intentional, then domestic law must prevail.
In other words, the supremacy of EC law is assured in the U.K. only in so far
as Parliament intends it to be, and the courts have no power to undermine the clear
will of Parliament, whether or not it presents a breach of Community law.
The Factortame Litigation earlier discussed, shows that, although an
equilibrium may now have been reached in the relationships between U.K. courts and
the ECJ as to the requirements of supremacy of EC law, the obligations of the U.K.
courts stem from the express will of Parliament, and not directly from the Treaties:
Whatever limitation of its sovereignty Parliament accepted when it enacted the
European Communities Act 1972,was entirely voluntary.
Thus, in conclusion we see that the bidimensional picture of the supremacy of
Community law exists, even today, for although all Member States by now accept the
practical requirement to give priority to EC law, few, if any, would be prepared to
abandon their supervision of it, to ensure that the Community does not attempt to
extend the powers it has been given.

Individuals

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The principle of supremacy has implications for individuals. The principle of

direct effect gives the right to individuals to plead before the national court the
provisions of EC legislation.
As a doctrine which principally protects individuals and often gives them
rights which they can rely upon as against Member States, it sets up a mechanism for
individual or indirect enforcement of EC law making thus Community law a reality
for the citizens of Europe.
Van Gend en Loos provides a clear example of the approach of the Court. The
Court pointed to the fact that individuals were envisaged as being able to plead and
rely on points of EC law through the preliminary ruling procedure.
The Court set out certain criteria for the direct effect of a Treaty provision.
There must be:
1. a clear, negative, unconditional obligation on a Member State,
2. containing no reservation on the part of the MS,
3. and not dependent on any national implementing measure. (MS-no real
discretion whether to apply measure).
The Court held that Art. 12 of the EC Treaty was directly effective.
This process establishes private rights for individuals which are enforceable in
municipal courts.
The principle applies most frequently in the relationship between private
individuals and national authorities. This is called vertical effect. Some provisions,
however, because of their nature, have been recognised by the Court as having a
wider effect in that they can be invoked against other individuals. This is called
horizontal effect i.e. they impose obligations on other individuals. eg. the Treaty
provisions regarding the competition rules applicable to undertakings, for example,
can clearly be invoked before the national courts by one undertaking against another.

21
Furthermore, a Regulation, as described in Article 189(2) EC Treaty, now 249
TEU
shall have general application. It shall be binding in its entirety and directly
applicable in all Member States.
A Regulation is defined as a general legislative instrument which is binding in
its entirety and which is directly applicable within the legal orders of the Member
States without the need of intervention on the part of legislative bodies. Thus it has
horizontal and vertical effect.
In contrast, a Directive which is defined in Art. 249 TEU too,
shall be binding, as to the result to be achieved, upon each Member State to
which it is addressed, but shall leave to the national authorities the choice of form and
methods.
Therefore, directives are not automatically applicable within Member States.
Since directives are given legal force through national measures, rights and
duties are conferred on individuals only after incorporation into national law.
The conditions to be satisfied before direct effect can be pleaded are the 3 ones
mentioned earlier. However, 2 important limitations are placed on the application of
this principle:
(a) The principle only applies to directives which are unimplemented after the
date set for implementation.
(b) The Court has only been prepared to apply this doctrine to the relationship
between individuals and the state (vertical direct effect) as opposed to the
relationship amongst individuals themselves (horizontal direct effect). The
recent case of Dori (1992) reiterats this refusal.
In Marshall (1986) and in Van Duyn (1974) the Court confirmed that while a

22
directive might be upheld against defaulting Member States, it cannot be invoked
directly against other individuals.
However, the Court has sought to achieve the same result though the process
of interpretation. For example, where the Court is interpreting the terms of an
unimplemented directive as it applies between private individuals, the Court has
observed that:
In applying national law, whether the provisions in question were adopted
before or after the directive, a national court called upon to interpret it is required to
do so, as far as possible, in light of the wording and purpose of the directive in order
to achieve the result pursued by the latter Marleasing SA (1992).
Furthermore, the principle of construction requires national courts, in
conformity with Art. 10 TEU, to give full effect to EC law, to interpret all national
legislation in the light of all relevant EC law, regardless of whether the particular
provision is of direct effect: EC law does not have to be directly effective in order for
it to benefit from the general doctrine of supremacy Van Colson (1984)
Furthermore, the ECJ has broadly defined the notion of the state to include
anything that provides public service,
with sufficient statutory powers beyond those which result from normal rules
applicable between individuals. Foster (1991)
Regional policy, health, tax and local authorities may be included.
Furthermore, the state may be held to be responsible in respect of breaches of
EC law, and liable in damages for the non-implementation of a directive, following
the decision in Francovich (1991) which held that:
The full effectiveness of Community rules would be impaired and the
protection of the rights which they grant would be weakened if individuals were
unable to obtain compensation when their rights are infringed by a breach of
Community law for which a Member State can be held responsible..

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However, 3 conditions must be satisfied:

-

Implementation of the directive would confer rights on individuals.

Its terms should be sufficiently precise and unconditional to determine

rights.

There should be a causal link between the breach and the loss.

The development by the Court of strong legal requirements in the area of

national remedies for breach of Community law has generally been welcomed as a
significant contribution to the effectiveness of Community law, at least through the
medium of judicial intervention by national courts. However, the welcome has not
been unconditional, and many commentators have called on the legislative institutions
and political players in the Community legal process, to take appropriate action, rather
than to leave this area of law for the Court to develop through the haphazard process
of litigation.

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Conclusion
It is clear that the ECJ the guardian of the Treaty in formulating the principle
of supremacy, reaffirmed the nature and development of EC law. The supremacy of
EC law is inherent within the nature and spirit of the TEU. The special and original
nature of Community law requires that its supremacy over national law is
acknowledged and followed. The ECJ will not entertain the prospect of any provision
of national law, even of constitutional validity, prevailing over an inconsistent
provision of Community law.
The success of this development is well profound, especially when one has in
mind that the Court in developing the principle, attributed to it characteristics and
force which it considered necessary to carry through a set of profoundly altering and
potentially far reaching common goals within a group of politically and
geographically distinct nations and historically sovereign states.