The position of community law in relation to the legal order as a whole
| Author | Dr. Klaus-Dieter Borchardt |
| Pages | 94-102 |
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After all that we have learnt about the structure of the Community and its legal set-up, it is not easy to assign Community law its rightful place in the legal order as a whole and define the boundaries between it and other legal orders. Two possible approaches to classifying it must be rejected from the outset. Community law must not be conceived of as a mere collection of international agreements, nor can it be viewed as a part of, or an appendage to, national legal systems.
By establishing the Community, the Member States have limited their legislative sovereignty and in so doing have created a self-sufficient body of law that is binding on them, their citizens and their courts.
One of the best-known cases heard in the Court of Justice was "Costa v ENEL" in 1964, in which Mr Costa filed an action against the nationalisation of electricity generation and distribution in Italy, and the consequent vesting of the business of the former electricity companies in ENEL, the new public corporation. The implications of this case are discussed below.
The autonomy of the Community legal order is of fundamental significance for the nature of the EC, for it is the only guarantee that Community law will not be watered down by interaction with national law, and that it will apply uniformly throughout the Community. This is why the concepts of Community law are interpreted in the light of the aims of the Community legal order and of the Community in general. This Community- specific interpretation is indispensable since particular rights are secured by Community law and without it they would be endangered. Each Member State could then, by interpreting provisions in different ways, decide individually on the substance of the freedoms that Community law is supposed to generate. As an example, consider the concept of the worker, on which the scope of the concept of freedom of movement is based. The specific Community concept of the worker is quite capable of deviating from the concepts that are known and applied in the legal orders of the Member States. Furthermore, the only standard by which Community legal instruments are measured is Community law itself, and not national legislation or constitutional law.
Against the backdrop of this concept of the autonomy of the Community legal order, what is the relationship between Community law and national law?
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Even if Community law constitutes a legal order that is self-sufficient in relation to the legal orders of the Member States, this situation must not be regarded as one in which the Community legal order and the legal systems of the Member States are superimposed on one another like layers of bedrock. The fact that they are applicable to the same people, who thus simultaneously become citizens of a national State and of the EU, negates such a rigid demarcation of these legal orders.
Secondly, such an approach disregards the fact that Community law can become operational only if it forms part of the legal orders of the Member States. The truth is that the Community legal order and the national legal orders are interlocked and interdependent.
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The interaction between Community law and national law covers those areas where the two systems complement each other. Article 10 of the EC Treaty is clear enough.
"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment 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 Community?s tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty".
This general principle was inspired by an awareness that the Community legal order on its own is not able to fully achieve the objectives pursued by the establishment of the EC. Unlike a national legal order, the Community legal order is not a self- contained system but relies on the support of the national systems for its operation. All three branches of government - legislature, executive and judiciary - there- fore need to acknowledge that the Community legal order is not a "foreign" system and that the Member States and the Community institutions have established indissoluble links between themselves so as to achieve their common objectives. The EC is not just a community of interests; it is a community based on solidarity. It follows that national authorities are required not only to observe the Community treaties and secondary legislation; they must also implement them and bring them to life. The interaction between the two systems is so thoroughly multi-faceted that a few examples are called for.
The first illustration of how the Community and national legal orders mesh with and complement each other is the directive, already considered in the chapter on legislation. All the directive itself fixes in binding terms is the result to be achieved by the Member State; it is for national authorities, via domestic law, to decide how and by what means the result is actually brought about. In the judicial field, the two systems mesh through the preliminary ruling procedure of Article 234 of the EC Treaty, whereby national courts may, or sometimes must, refer questions on the interpretation and validity of Community law to the European Court of Justice, whose ruling may well be decisive in settling the dispute before them. Two things are clear: firstly, the courts in the Member States are required to observe and apply Community law; and secondly, the interpretation of Community law and declarations as to its validity are the sole preserve of the Court of Justice. The interdependence of Community and national law is further illustrated by what happens when gaps in Community law need to be filled: Community law refers back to existing rules of national law to complete the rules it itself determines. This principle applies to the full range of obligations under Community law unless the latter has laid down rules for its own enforcement. In any such case, national authorities Page 97 enforce Community law by the provisions of their own legal systems. But the principle is subject to one proviso: the uniform application of Community law must be preserved, for it would be wholly unacceptable for citizens and firms to be Judged by different criteria - and therefore be treated unjustly.
However, the relationship between Community law and national law is also characterised by an occasional "clash" or conflict between the Community legal order and the national legal orders. Such a situation always arises when a provision of Community law confers rights and imposes obligations directly upon Community citizens while its content conflicts with a rule of national law. Concealed behind this apparently simple problem area are two fundamental questions underlying the construction of the Community, the answers to which were destined to become the acid test for the existence of the Community legal order, namely: (i) the direct applicability of Community law and (ii) the primacy of Community law over conflicting national law.
Firstly, the direct applicability principle simply means that Community law confers rights and imposes obligations directly not only on the Community institutions and the Member States but also on the Community?"s citizens.
One of the outstanding achievements of the Court of Justice of the European Communities is that is has enforced the direct applicability of Community law despite the initial resistance of certain Member States, and has thus guaranteed the existence of the Community legal order. Its case-law on this point started with a case already mentioned, that of the Dutch transport firm Van Gend & Loos, which brought an action in a Dutch court against the Dutch customs authorities, who had charged increased customs duties on a chemical product imported from the Federal Republic of Germany. In the final analysis, the outcome of these proceedings depended on the question of whether individuals too may rely on Article 12 of the EEC Treaty (now Article 25 EC), which specifically prohibits the introduction of new customs duties and the increase of existing duties in the common market. Despite the advice of numerous governments and its Advocate General, the Court ruled that, in view of the nature and objective of the Community, provisions of Community law were in all cases directly applicable. In the grounds for its judgment, the Court stated that "the Community constitutes a new legal order ... the subjects of which Page 98 comprise not only the Member States but also their nationals. Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community".
That bald statement does not, however, get us very far, since the question remains as to which provisions of Community law are directly applicable. The Court first of all looked at this question in relation to primary Community legislation and declared that individuals may be directly subject to all the provisions of the founding Treaties which (i) set out absolute conditions, (ii) are complete in themselves and self-contained in legal terms and therefore (iii) do not require any further action on the part of the Member States or the Community institutions in order to be complied with or acquire legal effect.
The Court ruled that the former Article 12 EEC met these criteria, and that the firm Van Gend & Loos could therefore also derive rights from it which the court in the Netherlands was obliged to safeguard. As a consequence of this the Dutch court invalidated the customs duties levied in contravention of the Treaty. Subsequently, the European Court of Justice continued to apply this reasoning in regard to other provisions of the EEC Treaty that are of far greater importance to citizens of the Community than Article 12. The judgments that are especially noteworthy here concern the direct applicability of provisions on freedom of movement (Article 39 EC), freedom of establishment (Article 43 EC) and freedom to provide services (Article 49 EC).
With regard to the guarantees concerning freedom of movement, the Court of Justice delivered a judgment declaring them directly applicable in the "Van Duyn" case. The facts of this case were as follows: Miss van Duyn, a Dutch national, was in May 1973 refused permission to enter the United Kingdom in order to take up employment as a secretary with the Church of Scientology, an organisation considered by the Home Office to be "socially harmful". Relying on the Community rules on freedom of movement for workers, Miss van Duyn brought an action before the High Court, seeking a ruling that she was entitled to stay in the United Kingdom for the purpose of employment and be given leave to enter the United Kingdom. In answer to a question referred by the High Court, the Court of Justice held that Article 39 was directly applicable and hence conferred on individuals rights that are enforceable before the courts of a Member State.
The Court of Justice was asked by the Belgian Conseil d?tat to give a ruling on the direct applicability of provisions guaranteeing freedom of establishment. The Conseil d?tat had to decide on an action brought by a Dutch lawyer, J. Reyners, who wished to assert his rights arising out of Article 43. Mr Reyners felt obliged to bring the action after he had been denied admission to the legal profession in Belgium because of his foreign nationality, despite the fact that he had passed the necessary Belgian examinations.
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In its judgment of 21 July 1974, the Court held that unequal treatment of nationals and foreigners as regards establishment could no longer be maintained, as Article 43 had been directly applicable since the end of the transitional period and hence entitled Community citizens to take up and pursue gainful employment in another Member State in the same way as a national of that State. As a result of this judgment Mr Reyners had to be admitted to the legal profession in Belgium.
The Court of Justice was given an opportunity in the "Van Binsbergen" case to specifically establish the direct applicability of provisions relating to the freedom to provide services. These proceedings involved, among other things, the question of whether a Dutch legal provision to the effect that only persons habitually resident in the Netherlands could act as legal representatives before an appeal court was compatible with the Community rules on freedom to provide services. The Court ruled that it was not compatible, on the grounds that all restrictions to which Community citizens might be subject by reason of their nationality or place of residence infringe Article 49 of the EC Treaty and are therefore void.
Also of considerable importance in practical terms is the recognition of the direct applicability of provisions on the free movement of goods (Article 28 EC), the principle of equal pay for men and women (Article 141 EC), the general prohibition of discrimination (Article 12 EC) and freedom of competition (Article 81 EC). As regards secondary legislation, the question of direct applicability only arises in relation to directives (ECSC recommendations) and decisions addressed to the Member States given that regulations (ECSC general decisions) and decisions addressed to individuals (ECSC individual decisions) already derive their direct applicability from the Treaties (Article 249(2) and (4) EC), Article 14 ECSC). Since 1970 the Court has extended its principles concerning direct applicability to provisions in directives and in decisions addressed to the Member States.
The practical importance of the direct effect of Community law in the form in which it has been developed and brought to fruition by the Court of Justice can scarcely be overemphasised. It improves the position of the individual by turning the freedoms of the common market into rights that may be enforced in a national court of law. The direct effect of Community law is therefore one of the pillars, as it were, of the Community legal order.
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The direct applicability of a provision of Community law leads to a second, equally fundamental question: what happens if a provision of Community law gives rise to direct rights and obligations for the Community citizen and thereby conflicts with a rule of national law?
Such a conflict between Community law and national law can be settled only if one gives way to the other. Community legislation contains no express provision on the question. None of the Community treaties contains a provision stating, for example, that Community law overrides, or is subordinate to, national law. Nevertheless, the only way of settling conflicts between Community law and national law is to grant Community law primacy and allow it to supersede all national provisions that diverge from a Community rule and take their place in the national legal orders. After all, precious little would remain of the Community legal order if it were to be subordinated to national law. Community rules could be set aside by any national law. There would no longer be any question of the uniform and equal application of Community law in all Member States. Nor would the Community be able to perform the tasks entrusted to it by the Member States. The Community?s ability to function would be jeopardised, and the construction of a united Europe on which so many hopes rest would never be achieved.
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Once again it fell to the Court of Justice, in view of these implications, to establish - despite opposition from several Member States - the principle of the primacy of Community law that is essential to the existence of the Community legal order. In so doing, it erected the second pillar of the Community legal order alongside direct applicability, which was to turn that legal order at last into a solid edifice.
In "Costa v ENEL", the Court made two important observations regarding the relationship between Community law and national law:
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The Member States have definitively transferred sovereign rights to a Community created by them. They cannot reverse this process by means of subsequent unilateral measures which are inconsistent with the Community concept.
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It is a principle of the Treaty that no Member State may call into question the status of Community law as a system uniformly and generally applicable throughout the Community.
It follows from this that Community law, which was enacted in accordance with the powers laid down in the Treaties, has priority over any conflicting law of the Member States. Not only is it stronger than earlier national law, but it also has a limiting effect on laws adopted subsequently.
Ultimately, the Court did not in its judgment in "Costa v ENEL" call into question the nationalisation of the Italian electricity industry, but it quite emphatically established the primacy of Community law over national law.
The legal consequence of this rule of precedence is that, in the event of a conflict of laws, national law which is in Page 102 contravention of Community law ceases to apply and no new national legislation may be introduced unless it is compatible with Community law.
The Court has since consistently upheld this finding and has, in fact, developed it further in one respect. Whereas the "Costa" judgment was concerned only with the question of the primacy of Community law over ordinary national laws, the Court confirmed the principle of primacy also with regard to the relationship between Community law and national constitutional law. After initial hesitation, national courts in principle accepted the interpretation of the Court of Justice. In the Netherlands, no difficulties could arise anyway because the primacy of Treaty law over national statute law is expressly laid down in the constitution (Articles 65 to 67). In the other Member States, the principle of the primacy of Community law over national law has likewise been recognised by national courts. However, the constitutional courts of Germany and Italy initially refused to accept the primacy of Community law over national constitutional law, in particular regarding the guaranteed protection of fundamental rights. They withdrew their objections only after the protection of fundamental rights in the Community legal order had reached a standard that corresponded in essence to that of their national constitutions. In its judgment of 12 October 1993 concerning the Treaty on European Union (Treaty of Maastricht), however, the German constitutional court made it quite clear that it had not in any way "surrendered" its jurisdiction in determining the applicability of secondary Community legislation in Germany; however, it would only exercise this judicial authority "in collaboration" with the European Court of Justice, whereby the European Court would guarantee the protection of the basic rights of all individuals throughout the Community whilst the constitutional court in Germany would restrict itself to generally ensuring compliance with mandatory requirements regarding fundamental rights. The constitutional court also made it clear that it did not accept as valid within Germany any Community legal act which had been adopted merely because of the "useful effect" of Community powers and on the basis of a broad interpretation of this concept, and also stated that government institutions in Germany were prevented from applying these legal acts for constitutional reasons. It was therefore the task of the constitutional court to examine whether legal acts of Community bodies and institutions remained within or exceeded the limits of their sovereign rights. Only when this thinking is put into practice will it become clear whether and to what extent the German constitutional court is actually undermining the primacy of Community law and the Court of Justice?s exclusive power to reject illegal Community provisions.
