European Union Constitutional Law – Lecture 3

International treaties

- Bind only signatories (European Convention on Human Rights)

- Rights, obligations, enforcement only against the state
- Domestic effect of international treaties varies

The EU is NOT:

- An international organisation
- A state

The EU is:

- A unique, new legal order of international law

- Does not have the same limitations to its legal effects as international law
- Sui generis legal order

Van Gend en Loos [1963]– facts

- Postal and transportation company importing chemicals from Germany to Holland

- Charged with an import duty that had allegedly been increased contrary to Article 12 EEC
- Import duties prohibited by EC law
- Under Article 12 EEC (now Article 30 TFEU), custom duties on imports and exports and charges
having equivalent effect shall be prohibited between Member States.
- Under article 177 (267 TFEU), the Dutch court asks ECJ: Can article 12 EC have direct application
within the territory of an EU Member State? Can article 12 create individual rights which the
national courts must protect (I.e., private enforcement)?
- Article 12 EEC: Member States shall refrain from introducing, as between themselves, any new
customs duties on importation or exportation or chargers with equivalent effect and from
increasing such duties or chargers as they apply in their commercial relations with each other.
- Article 12 is a clear and unconditional prohibition. It's implementation does not require any
legislative intervention. It creates individual rights, which national courts must protect.

Van Gend en Loos (2)

- MS ask the ECJ to secure uniform interpretation of EC law by national courts.

- The community constitutes a new legal order of international law
- For the benefit of which the MS have limited their sovereign rights, albeit within limited fields
- And the subjects of which comprise not only MS but also their nationals
- Not only obligations but also rights

Direct Effect – Meaning

- Direct effect refers to the capacity of a provision of EU law to be invoked before a national court.
- Individuals can rely – before a national court against a MS – on the rights conferred by EU law.
- Immediate enforceability by individual applicants of EU law provisions in national courts.

Direct applicability and direct effect

 - Direct applicability generally refers to the process by which EU law is incorporated into the
national legal order.
- Direct effect is the capacity of any provision of union law to create legal rights and/or obligations
which can be enforced within the domestic legal system.

I.E. Article 45 TFEU vs Article 47 TFEU

- Art. 45: freedom of movement for workers shall be secured within the union.
- 3. it shall entail the right
- (a) to accept offers of employment made.
- (b) to move freely within the territory of Member States for this purpose.
- (c)to stay in a Member State for the purpose of employment in accordance with the provisions
governing the employment of nationals of that state laid down by law, regulation or
administrative action.
- (d) to remain in the territory of a Member State after having been employed in that State,
subject to conditions which shall be embodied in regulations to be drawn up by commission.
- Art. 47: Member States shall, within the framework of a joint programme, encourage the
exchange of young workers.

Direct effect – conditions

In order to be justiciable, a EU law provision must be:

- Clear
- Sufficiently precise
- Unconditional

Vertical and horizontal direct effect

*WATCH LECTURE VIDEO

The doctrine of ‘Direct Effect’ applies to all binding EU law, under certain conditions:

- Treaty provisions (vertical and horizontal DE)

- Ex.: Van Gend and Defrenne
- Regulations (vertical and horizontal effect) Ex.: Leonesio and Antonio
- Decisions (mainly vertical. When they are addressed to private parties, decisions can have
horizontal effect)
- Diectives?
- Always apply the conditions for direct effect – clear, sufficiently precise, unconditional.
- Rationale: treaty articles become immediately part of national law, binding all those that are
subject to national law