How to enforce European law? A new history of the battle over the direct effect of Directives, 1958–1987

• Date: 01 July 2017
• DOI: http://doi.org/10.1111/eulj.12243
• Published date: 01 July 2017
• Author: Morten Rasmussen

ORIGINAL MANUSCRIPT

How to enforce European law? A new history of

the battle over the direct effect of Directives,

1958–1987

Morten Rasmussen*

Abstract

This article explores the well‐known saga of the European Court of Justice's introduction of direct effect of Coun-

cil Directives on the basis of new comprehensive archival research. The expansion of the doctrine of direct effect

to include Directives was part of a drive of the Legal Service of the European Commission and the ECJ to

strengthen the enforcement of European law. This threatened the deeper balance of competences between

the European Community and its Member States and consequently led to a sharp response from the national par-

liaments and courts. The force of these responses and the deep crisis that had evolved in the late 1970s between

France and the ECJ, led to a change in the EC's case law that limited the direct effect of Directives to the vertical

relation between citizens and the respective Member State and excluded any horizontal effect. The story is an

example of how the activist ECJ of the 1970s ran into resistance from the Member States and had to modify

its doctrinal advances. It also suggests that the successful acceptance of the constitutionalisation of the Treaties

of Rome pursued by the ECJ was by no means secure by the late 1970s.

1|INTRODUCTION

In 1976, the European Court of Justice (ECJ) celebrated its 25th anniversary with an academic conference in Luxem-

bourg in which participated the very elite of the European judiciary, including the presidents of the national supreme

courts, prominent politicians and the leading scholars of European law. At the conference, the only invited academic

speaker, C.J. Hamson from the University of Cambridge, caused quite a stir, because his submitted paper concluded

that the famous Van Gend en Loos judgment and the ensuing development of the doctrine of direct effect had ‘con-

sequences which are as confusing as they are dangerous’. The problem, according to Hamson, was that theTreaties

of Rome with few exceptions were only applicable by the means of subordinated legislation through concerted legis-

lative and administrative action of the Council of Ministers and the Commission. By granting Treaty Articles direct

effect inside national legal orders and gradually expanding the doctrine to include Council Directives, which were

*

Associate Professor, SAXO Institute, History Section, University of Copenhagen, Denmark. The present research has been supported

by the Danish Agency for Science, Technology and Innovation. The author would like to thank the Editor Agustín José Menéndez, Pau l

Craig, Francesca Bignami, Fernanda Nicola, Bill Davies, Brigitte Leucht, Wolfram Kaiser, Rebekka Byberg, Alexandre Bernier, Anne

Boerger and Phillipp Schmitt for comments that helped improve the article. Any mistakes and flaws are solely the responsibility of

the author.

Received: 7 June 2017 Accepted: 20 June 2017

DOI: 10.1111/eulj.12243

290 © 2017 John Wiley & Sons Ltd. Eur Law J. 2017;23:290–308.wileyonlinelibrary.com/journal/eulj

clearly directed to the Member States, the ECJ had taken a step down a slippery slope that ultimately disturbed both

the institutional balance and the economy of the treaties.

1

A week before the conference, member of the Legal Service of the Commission of the European Community (EC),

Gerhard Bebr, who had consistently defended the doctrine of direct effect in his academic writing,

2

wrote to Eric

Stein, the pre‐eminent American scholar of European law, and wondered who in the Court had invited Hamson

‘who considers the van Gend & Loos case a great error, if not a disaster’. This invitation according to Bebr amounted

almost to sabotage of the conference. He hoped, however, that the Luxembourg ECJ judge Pierre Pescatore would

‘put the matter straight’.

3

At the event Professor Hamson had fallen ill (perhaps feeling the cold front from Luxem-

bourg) and could not participate. Instead, he had expressly asked Advocate‐General Jean‐Pierre Warner to present

his paper. According to a British diplomat present at the conference,A.D. Watts, this was not fortunate since Warner,

during his presentation of Hamson's paper, had clearly not shared his critique of the Court. Nevertheless, a surprising

number of participants spoke out in support of Hamson's views, pointing out among other problems that the direct

applicability of community law departed from the ‘intentions of the founding fathers.’

4

In this manner, even the celebration of the Court's 25th anniversary reflected the critique thathad risen in a num-

ber of Member States of the Court's direct effect jurisprudence in the 1970s. Together with the well‐known debacle

over the doctrine of primacy of European law over national law that would run in parallel,

5

the debate over direct

effect showed how the ECJ in the 1970s went to the very limits of what was considered acceptable by several key

Member States. The bolstering of the bench with Pescatore and the presidency of French judge, Robert Lecourt, in

1967 gave the Court new energy to pursue the constitutional interpretation of European law initiated with the Van

Gend en Loos judgment.

6

This article will explore how the doctrine of direct effect was developed by the ECJ from

1963 to 1987, focusing on the controversial expansion of direct effect to Council Directives and the response this

elicited from the Member States.

The development of ECJ case law on the direct effect of Directives is well known in the legal scholarship on Euro-

pean law. However, most of the literature confines itself to doctrinal analysis, sidestepping the political stakes

involved.

7

In her magisterial analysis of the role of Directives in EC law, Sacha Prechal has pointed out that the ECJ

did change its justification for the direct effect of Directives with the Ratti judgment of 5 April 1979

8

with the con-

sequence that Directives could not create direct effect horizontally between private parties. However, Prechal is

not sure whether this happened in response to the negative reactions from several Member States to its doctrine.

The truth, she argues, will probably remain hidden in the secrecy of the ECJ's deliberé in the Ratti case.

9

In contrast,

in a recent conference paper based on several internal documents from the Commission, Francesca Bignami traced

the changing justifications of direct effect of Directives back to the Legal Service in the mid‐1970s, which responded

1

C.J. Hamson, ‘Methods of Interpretation—A Critical Assessment of the Results’,inJudicial and Academic Conference, 27–28 September

1976. Reports. Court of Justice of the European Communities, Luxembourg, 1976, II‐1.

2

See, e.g., G. Bebr, ‘Directly Applicable Provisions of Community Law: The Development of a Community Concept’, (1970) 19 The

International and Comparative Law Quarterly, 257–298.

3

Eric Stein papers, Ann Arbor Michigan, Box 3 Bebr. Letter from G. Bebr to E. Stein, 23 September 1976.

4

British National Archives (henceforth BNA), FCO 52/103 European Court of Justice—General subjects, conferences. Memorandum

by the Office of the United Kingdom Permanent Representative to the European Communities to the Lord Chancellor's Office, 1

October 1976. Ministerial, Judicial and Academic conference, Luxembourg 27–28 September. A.D. Watts.

5

For the standard work on this consult: K. Alter, Establishing the Supremacy of European Law. The Making of an International Rule of Law

in Europe (Oxford University Press, 2001).

6

B. Davies and M. Rasmussen, ‘From International Law to a European Rechtsgemeinschaft: Towards a New History of European Law,

1950–1979’, in J. Laursen (ed.), Institutions and Dynamics of the European Community, 1973–83 (Nomos, 2014), 97–130.

7

A brilliant example is P.Craig's most useful mapping of the doctrinal debate, which delivers a systemic analysisof the different dimen-

sions of the doctrine of direct effect, but does not analyse the deeper political issues at stake. P. Craig, ‘Once upon a Time in the West.

Direct Effect and the Federalization of EEC Law’(1992) 12 Oxford Journal of Legal Studies, 453–479.

8

Case 148/78 Criminal proceedings against Tullio Ratti, ECLI:EU:C:1979:110.

9

S. Prechal, Directives in EC Law (Oxford University Press, 2nd edn, 2005), 255–257.

RASMUSSEN 291