Nature and Effect of EU Law

1. Nature and Effect of EU Law • Different kinds of EU law enjoy different kinds of “legal effects” • Most binding forms of EU law can be invoked before national courts if they satisfy basic conditions---means they have direct effect • Other types of EU law (non-binding, “soft law”) do not have direct effect----but they are influential in other ways----this is called “indirect effect” or “interpretative effect” • In no other int organization we can see this type of “direct effect” UN resolutions? • Developed through the decisions of ECJ

2. “Direct Effect” • International law: • In International Law---the way in which rules of international law finds validity in national legal systems: • 1- Transformation (Dualist approach) • 2- Incorporation (Monist approach) • Dualist approach: rules of int law do not of themselves give rise to rights or interests which citizens can invoke or enforce before national courts • International treaties (for exp) bind only the states at intergovernmental level----if it is not transformed—cannot be directly and domestically invoked or enforced • EU Law: • But EU law confers rights and obligations which should be protected by national courts and which can be invoked by individuals without any extra transaction

3. “Direct Effect” • Not valid in second and third pillars—because ECJ lacks jurisdiction in these • Police and judicial cooperation in criminal matters ECJ jurisdiction in 5 years • Visa, asylum, immigration and other policies on free movement of persons ECJ jurisdiction • This doctrine is applicable, at least in principle, to all binding EU law including the EU Treaties & secondary legislation & international agreements

4. Doctrine of Direct Effect • Direct Effect of Treaty Provisions • Van Gend en Loos case (1963): A company + import from Germany to Netherlands + increased import duty after entry into force of EEC Treaty---despite art. 12 • Netherlands court asked the ECJ whether individuals can, on the basis of art 12 EEC, invoke rights before national courts: • ECJ: (Van Gend en Loos case1963): • “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. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens “

5. Doctrine of Direct Effect • “The conclusion to be drawn from this is that 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 implementation of Article 12 does not require any legislative intervention on the part of the states...” • “It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts mustprotect. “

6. Doctrine of Direct Effect • This is “purposive/teleological interpretation.” • Not only the wording of a specific article in the text, but also preamble, aims etc. • Because of the aims of the Union--not only the states but also citizens are subjects of the EU. • Therefore---some articles of the Treaties has “direct effect” or they have self-executing nature

7. Doctrine of Direct Effect • The rationale of direct effect is to enforce EU law at two levels: • 1. The Commission may bring an action against MS • 2. Individuals may demand the application of EU law from their domestic courts • This is called DUAL VIGILANCE(Çifte ihtiyat/uyanıklık) (dual caution)

8. Doctrine of Direct effect • Criteria for Direct Effect: • ECJ-1963 Van Gend en Loos: that provision should be essentially “self-executing” Which means: • “clear, unconditional, containing no reservation on the part of member state, not dependent on any national implementing measure”

9. Direct Effect • Three criteria for direct effect: • 1. Clear and unambiguous • 2. Unconditional • 3. Directly applicable/not dependent upon national implementing measure

10. Direct effect • Legal Effects of International Agreements of EU • The Community has legal personality and empowered to enter into contractual relations with other persons • The question is: Whether such agreements can be directly invoked and enforced in national and Community legal order? • According to ECJ: International Agreements can ---under certain circumstances---be directly applicable

11. Direct Effect • ECJ-International Fruit Company Case (1972): • Dutch Court asked questions to ECJ: “whether it has jurisdiction to rule on the validity of Community regulations and whether they were contrary to GATT where the Community is party to?” • The ECJ: • “GATT includes flexible provisions, there are possibilities of derogations and the power of unilateral withdrawal from obligations”----- • Therefore----GATT is not capable of conferring rights on Community citizens where they can invoke before national courts • GATT cannot be invoked before national courts or before ECJ because of non-reciprocal nature of their provisions • But for another treaty (exp. Portugeuse free trade agreement with Community) the Court ruled that it have direct effect. Another example is association agreements which we have analyzed.

12. Direct Effect • Reasons given by the ECJ for “direct effect” of: • Treaties: Fundamental aims of the treaty and nature of the system it was designed to create • int agreements: to ensure respect in every member state for the commitments of the Community arising from such agreements • Regulations: direct effect is specifically provided for in article 288. • Decisions: since they were intended to be binding upon addressees, there was no reason why they should not be directly enforced • Directives: Position of directives are different—there are problems

13. Different position of directives • Directives shall be binding as to the result---but shall leave to the national authorities the choice of form and methods. • Directives are main instruments of harmonization----sometimes represent a compromise on sensitive and complex issues---leaving some discreation to MSs. • For two reasons direct effect for directives is problematic: • 1- Discretion to MSs---does not comply with conditions of direct effect. • 2- always need for implementing measures--- does not comply with conditions of direct effect

14. Different position of directives • But; • This is “not a categoric rejection” of direct effect for directives • For the ECJ: There is a possibility of relying on directives directly before national courts---case by case analysis is needed • For exp: • A- when the time-limit expires for the MSs----their discreation shall disappear • B- Again when the necessary implementing measures have been done---it may be possible to rely on

15. Different position of directives • Each directive gives member states a specific date (deadline) by which implementation must be assured • Until that date---a member state can continue to rely on a national law to reject demands of individuals and their reliance on Community directive • But after that date---member state is “estopped” from relying on conflicting provisions of national law against individuals • Estoppel Argument: If a MS fails to implement a directive within a given period of time, it cannot rely on its failure in order to prevent the application of directive by national courts

16. Different kinds of “direct effect” • 1- Vertical direct effect • 2- Horizontal direct effect • 3- Indirect effect

17. Different Direct Effect • 1-Vertical direct effect • A natural or legal person can rely on Community law against the state • 2-Horizontal direct effect • In cases between natural or legal persons the parties may request the national court to base its ruling on Community law • According to ECJ: “directives can be enforced directly by individuals against the state after the time limit for their implementation has expired (vertical) • But----The ECJ has ruled that they cannot of themselves impose obligations on individuals (no horizontal direct effect for directives)

18. Indirect effect • ECJ developed other legal mechanisms for giving greater effect to directives: • According to the ECJ—there is a broad obligation on national courts to interpret domestic law, as far as possible, in the light of and in conformity with directives (whether national transposing legislation has been adopted or not) • This obligation of member state courts is called as “indirect effect” of directives. • This is also called “the doctrine of harmonious interpretation”