Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?

AuthorSaulius Lukas Kaleda
Date01 January 2004
Published date01 January 2004
*PhD (European Law Chair of the Jagiellonian University Cracow).
1Case 258/81 Metallurgiki Halyps,[1982] ECR 4261, §8.
2See T. Heukels, Intertemporales Gemeinschaftsrecht:Rückwirkung, Sofortwirkung und Rechtsschutz in der
Rechtsprechung des Gerichtshofes der Europäischen Gemein-schaften (Nomos, 1990).
Immediate Effect of Community Law in
the New Member States: Is there a Place
for a Consistent Doctrine?
Saulius Lukas Kaleda*
Abstract: Extension of the acquis to the new Member States raises a number of ques-
tions relating to the temporal reach of Community rules. This paper examines a general
doctrine underlying the solutions. It presents a classic intertemporal doctrine, which has
inf‌luenced early jurisprudence of the European Court of Justice. Then, it comments upon
the cases brought before the Court in the context of the 1995 enlargement, the entry into
force of the EEA Agreement and also the Europe Agreements. These cases evidence sub-
stantial differences in the attitudes taken by the national courts, the Advocates General
and the Court. One reason for divergence is that the line of reasoning adopted by the Court
carries several interpretative diff‌iculties characteristic of the classic doctrine. Secondly,
controversies arise in the instances where the Court takes a proactive attitude, which is
diff‌icult to reconcile with the traditional scheme. It is argued that greater attention to the
structure underlying the reasoning would help to strengthen justif‌ication of the Court’s
solutions and enhance their predictability. This is the more important, as the forthcoming
accessions are likely to bring new disputes relating to the effects of Community law in
As a general principle, which is subject to transitional arrangements, Community law
becomes fully and immediately applicable in respect of a new Member State of the
European Union on the date of its accession.1This principle does not, however, imply
that Community law immediately covers all legal relationships on the date of accession
of a relevant Member State; certain situations arising prior to accession would still have
to be resolved under the pre-existing legal régime. The distinction between the cases
falling within the scope of Community rules and those escaping their application is
subject to specif‌ic legal principles, which constitute part of Community inter-temporal
European Law Journal, Vol.10, No. 1, January 2004, pp. 102–122.
© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
The preliminary argument in this paper is that the forthcoming enlargement of the
European Union increases the importance of clarity in inter-temporal issues relating
to Community law. The development of a general inter-temporal doctrine, based on
formal criteria, is one signif‌icant factor for achieving integrity within the legal order.
Particularly, in the time of transformation the existence of general a priori solutions
signif‌icantly adds to legal certainty and, therefore, facilitates the acceptance of a new
legal régime. Both the complexity and the extent of a transformation exercise, which
has to be undertaken by the candidates in the current accession process, reinforce this
Inter-temporal disputes relating to the EU accessions pertain to various f‌ield of law
and usually are discussed within the specif‌ic areas of regulation. This fragmentation
inevitably leads to the adoption of varying solutions by the European Court of Justice.
On the other hand, the image of the Court of Justice judging on the temporal appli-
cation of Community law to new Member States with great liberty and reaching the
solutions based on practical arguments has been described as manifestly erroneous.3
This paper is an attempt to outline the logic followed by the Court of Justice in its
inter-temporal jurisprudence. Further analysis concentrates on the reasoning employed
in the cases concerning the temporal scope of various expressions of the principle of
IThe Concept of Immediate Effect
The inter-temporal jurisprudence of the Court of Justice is best viewed in the context
of theoretical concepts characteristic of continental European legal systems. The roots
of these concepts can be traced to the legalistic doctrine of inter-temporal private law,
developed in response to the failure to conceptualise the notion of ‘acquired rights’.4
The legalistic doctrine abandoned attempts at differentiating the rights that may or
may not be considered ‘acquired’ and instead drew on theoretical terminology relating
to the formalised elements of a legal situation.5In an outline of this concept, the con-
stitution or extinction of a juridical situation, as well as its consequences, are regarded
as facts that may relate to the past (facta praeterita), present (pendentia), or future
(futura). The corresponding modes of application of new law have been denoted,
respectively, as retroactive effect (effet rétroactif ), immediate effect (effet immédiat), or
deferred effect (effet différé, survie de la loi ancienne).6
The main novelty of this structure was a strict def‌inition of retroactivity. While pre-
viously the rule was considered retroactive whenever it affected certain ‘acquired’rights,
the modern concept def‌ined retroactivity as an effect on the elements of a legal
January 2004 Community Law in the New Member States
© Blackwell Publishing Ltd. 2004 103
3Opinion of the Advocate General in Case C-321/97 Andersson,[1999] ECR I-3551, 61.
4The failure of this terminological concept was expressly acknowledged by Struve, remarking that there
is no such thing as a ‘right that is not acquired’; and by Austrian authors Pfaff and Hofmann, conclud-
ing that ‘we all call the rights acquired if they deserve protection, thus idem per idem’, in Die zeitlichen
Gränzen der Wirksamkeit der Privatrechtsnormen,1878. See P. Roubier, Les conf‌lits de lois dans le temps
(théorie dite de la non-rétroactivité des lois) (Sirey,1933), at 295–329; and M. So´sniak, Konf‌likty w czasie
norm cywilnoprawnych,Zeszyty naukowe UJ, vol XLVIII, Kraków, 1962, at 62–68.
5The new attitude was outlined by de Vareilles-Soummières in his article Une théorie nouvelle sur la rétroac-
tivité des lois published in Revue critique de législation et de jurisprudence of 1893; see P. Roubier, op.cit.,
note 4 supra at 364. The concept has been widely developed by P. Roubier ibid. and, Le droit transitoire
(conf‌lits de lois dans le temps) (Dalloz-Sirey, 1960). In Poland it was authoritatively outlined by
J. Gwiazdomorski, ‘Miedzyczasowe prawo prywatne’, (1962) 6–7 Nowe Prawo,at 614–626 and 736–774.
6See P.Roubier, op. cit.,vol I, at 4–6.

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