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

• Author: Saulius Lukas Kaleda
• Date: 01 January 2004
• Published date: 01 January 2004
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00205.x

*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

time.

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

law.2

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

argument.

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

non-discrimination.

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, ‘Miedzyczasowe prawo prywatne’, (1962) 6–7 Nowe Prawo,at 614–626 and 736–774.

6See P.Roubier, op. cit.,vol I, at 4–6.