Professor Anna Wyrozumska
Jean Monnet Chair of European Constitutional Law
Introduction to European Institutional Law 2009 - 2010
PRIMACY AND APPLICATION OF EU LAW 2010 2011 PART 1
No pillar structure
Common rules/ except for former Second and Third Pillars
1. DIRECT APPLICATION
1.1. International law and national law
they are part of a single legal system
duly ratified treaties could be invoked directly in national courts
int. law prevails in cases of conflict
they are two separate legal orders
treaties must be transposed into national law to have effect
national law prevails in cases of conflict
Criteria of direct effect of a treaty norm / self-executing norm
intention of the parties to confer rights
clear and precise
1.2. The Netherlands and 26/62 Van Gend & Loos1
N. V. Algemene Transport- en Expeditie Onderneming van Gend & Loos/Nederlandse administratie der
belastingen (Netherlands Inland Revenue Administration): 6 . IT FOLLOWS FROM THE WORDING AND THE
GENERAL SCHEME OF ARTICLE 12 OF THE TREATY THAT, IN ORDER TO ASCERTAIN WHETHER CUSTOMS
DUTIES AND CHARGES HAVING EQUIVALENT EFFECT HAVE BEEN INCREASED CONTRARY TO THE
PROHIBITION CONTAINED IN THE SAID ARTICLE, REGARD MUST BE HAD TO THE CUSTOMS DUTIES AND
CHARGES ACTUALLY APPLIED BY MEMBER STATES AT THE DATE OF THE ENTRY INTO FORCE OF THE TREATY .
7 . WHERE, AFTER THE ENTRY INTO FORCE OF THE TREATY, THE SAME PRODUCT IS CHARGED WITH A
HIGHER RATE OF DUTY, IRRESPECTIVE OF WHETHER THIS INCREASE ARISES FROM AN ACTUAL INCREASE OF
THE RATE OF CUSTOMS DUTY OR FROM A REARRANGEMENT OF THE TARIFF RESULTING IN THE
Member States shall refrain from introducing, as between themselves, any new
customs duties on importation or exportation or charges with equivalent effect and
from increasing such duties or charges as they apply in their commercial relations
with each other.
“constitutes a new legal order of international law for the benefit of
which states have limited their sovereign rights, albeit within limited fields,
and the subjects of which comprise not only member-states but also their
intended to “confer rights upon individuals which became part of
their legal heritage” 2
rights expressly granted by the Treaty or implied
5 . ACCORDING TO THE SPIRIT, THE GENERAL SCHEME AND THE WORDING
OF THE EEC TREATY, ARTICLE 12 MUST BE INTERPRETED AS PRODUCING DIRECT
EFFECTS AND CREATING INDIVIDUAL RIGHTS WHICH NATIONAL COURTS MUST
THE WORDING OF ARTICLE 12 CONTAINS A CLEAR AND UNCONDITIONAL
PROHIBITION WHICH IS NOT A POSITIVE BUT A NEGATIVE OBLIGATION . THIS
OBLIGATION, MOREOVER, IS NOT QUALIFIED BY ANY RESERVATION ON THE PART
OF STATES WHICH WOULD MAKE ITS IMPLEMENTATION CONDITIONAL UPON A
POSITIVE LEGISLATIVE MEASURE ENACTED UNDER NATIONAL LAW . THE VERY
NATURE OF THIS PROHIBITION MAKES IT IDEALLY ADAPTED TO PRODUCE DIRECT
EFFECTS IN THE LEGAL RELATIONSHIP BETWEEN MEMBER STATES AND THEIR
THE IMPLEMENTATION OF ARTICLE 12 DOES NOT REQUIRE ANY LEGISLATIVE
INTERVENTION ON THE PART OF THE STATES . THE FACT THAT UNDER THIS
ARTICLE IT IS THE MEMBER STATES WHO ARE MADE THE SUBJECT OF THE
CLASSIFICATION OF THE PRODUCT UNDER A MORE HIGHLY TAXED HEADING, SUCH INCREASE IS ILLEGAL
UNDER ARTICLE 12 OF THE EEC TREATY .
INDEPENDENTLY OF THE LEGISLATION OF MEMBER STATES, COMMUNITY LAW NOT ONLY IMPOSES
OBLIGATIONS ON INDIVIDUALS BUT IS ALSO INTENDED TO CONFER UPON THEM RIGHTS WHICH BECOME
PART OF THEIR LEGAL HERITAGE . 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 .
NEGATIVE OBLIGATION DOES NOT IMPLY THAT THEIR NATIONALS CANNOT
BENEFIT FROM THIS OBLIGATION .
Criteria for direct effect of the EU norm:
a. provision is sufficiently clear and precise for judicial application
b. it must establish an unconditional obligation/ leave no discretion to
MSs or Community institutions
c. the obligation must be complete („legally perfect‟) and its
implementation must not depend on subsequent measures by MSs or
If the EC law has direct effect then such law in effect grants rights to individuals
and those rights must be upheld by the national courts
1.3. Dualistic Italy and 6/64 Costa v. ENEL3
"By contrast with ordinary international treaties, the EEC Treaty has created
its own legal system which, on the entry into force of the Treaty, became
an integral part of the legal systems of the Member States and
which their courts are bound to apply."
1.4. Direct application implications
ECJ as constitutional court
1.5. Criteria of direct effect
43/75 Defrenne v Sabena (Defrenne II) 4
In 1962, Italy nationalized its electric power industries into a single entity, the National Electricity Board (ENEL).
A lawyer named Costa, who owned a stake in one of the companies, protested his loss of dividends by refusing to
pay his electric bill. He claimed that ENEL existed in violation of the EEC Treaty. An arbitration tribunal in Milan
referred the case to the European Court of Justice in order to clarify the question. The Italian Constitutional Court
had already upheld the act creating the ENEL, stating that since the EEC treaty had been adopted as a normal
law, it was subject to implied repeal. The ECJ ruling, however, overturned the Italian decision and established
that states could not deviate from Community treaties without prior permission: high courts had to consult the
ECJ before deciding on an incompatibility between state and EC law. It set an important precedent for the
supremacy of Community law within the European Community, and later the European Union.
Article 119 EC
MSs were obliged till 1 January 1962 to introduce the principle of equal
The question of pay as regards past5
horizontal direct effect
14/83 Von Colson - is Article 6 of the Equal Treatment Directive
Article 6: “Member States shall introduce into their national legal systems such
measures as are necessary to enable all persons who consider themselves
wronged by failure to apply to them the principle of equal treatment within
the meaning of Articles 3, 4 and 5 to pursue their claims by judicial
process after possible recourse to other competent authorities”.
F: Flight attendant brought action against airlines for sex discrimination. Airlines admitted that women earn less
for essentially the same job (not equal pay for work of equal value). I: Was Article 119 directly effective?
ECJ: YES Article has two purposes: Prevent competitive disadvantages; The EC is about social progress and
equal pay for equal work is fundamental to the Community. Note: MSs were reluctant to implement Article
119 and court pushed them to act.
1 . THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY , WHICH IS LAID DOWN BY
ARTICLE 119 , IS ONE OF THE FOUNDATIONS OF THE COMMUNITY . IT MAY BE RELIED ON BEFORE THE
NATIONAL COURTS . THESE COURTS HAVE A DUTY TO ENSURE THE PROTECTION OF THE RIGHTS WHICH
THAT PROVISION VESTS IN INDIVIDUALS , IN PARTICULAR IN THE CASE OF THOSE FORMS OF
DISCRIMINATION WHICH HAVE THEIR ORIGIN DIRECTLY IN LEGSILATIVE PROVISIONS OR COLLECTIVE
LABOUR AGREEMENTS , AS WELL AS WHERE MEN AND WOMEN RECEIVE UNEQUAL PAY FOR EQUAL WORK
WHICH IS CARRIED OUT IN THE SAME ESTABLISHMENT OR SERVICE , WHETHER PRIVATE OR PUBLIC .
2 . ( A ) THE APPLICATION OF THE PRINCIPLE THAT MEN AND WOMEN SHOULD RECEIVE EQUAL PAY WAS TO
HAVE BEEN FULLY SECURED BY THE ORIGINAL MEMBER STATES AS FROM 1 JANUARY 1962 , THE END OF THE
FIRST STAGE OF THE TRANSITIONAL PERIOD . WITHOUT PREJUDICE TO ITS POSSIBLE EFFECTS AS REGARDS
ENCOURAGING AND ACCELERATING THE FULL IMPLEMENTATION OF ARTICLE 119 , THE RESOLUTION OF THE
MEMBER STATES OF 31 DECEMBER 1961 WAS INEFFECTIVE TO MAKE ANY VALID MODIFICATION OF THE
TIME-LIMIT FIXED BY THE TREATY . APART FROM ANY SPECIFIC PROVISIONS , THE TREATY CAN ONLY BE
MODIFIED BY MEANS OF THE AMENDMENT PROCEDURE CARRIED OUT IN ACCORDANCE WITH ARTICLE 236 .
3 . IMPORTANT CONSIDERATIONS OF LEGAL CERTAINTY AFFECTING ALL THE INTERESTS INVOLVED , BOTH
PUBLIC AND PRIVATE , MAKE IT IMPOSSIBLE IN PRINCIPLE TO REOPEN THE QUESTION OF PAY AS REGARDS
THE PAST . THE DIRECT EFFECT OF ARTICLE 119 CANNOT BE RELIED ON IN ORDER TO SUPPORT CLAIMS
CONCERNING PAY PERIODS PRIOR TO THE DATE OF THIS JUDGMENT, EXCEPT AS REGARDS THOSE WORKERS
WHO HAVE ALREADY BROUGHT LEGAL PROCEEDINGS OR MADE AN EQUIVALENT CLAIM.
18 ARTICLE 6 REQUIRES MEMBER STATES TO INTRODUCE INTO THEIR
NATIONAL LEGAL SYSTEMS SUCH MEASURES AS ARE NECESSARY TO
ENABLE ALL PERSONS WHO CONSIDER THEMSELVES WRONGED BY
DISCRIMINATION ' ' TO PURSUE THEIR CLAIMS BY JUDICIAL PROCESS
' ' . IT FOLLOWS FROM THE PROVISION THAT MEMBER STATES ARE
REQUIRED TO ADOPT MEASURES WHICH ARE SUFFICIENTLY EFFECTIVE TO
ACHIEVE THE OBJECTIVE OF THE DIRECTIVE AND TO ENSURE THAT THOSE
MEASURES MAY IN FACT BE RELIED ON BEFORE THE NATIONAL COURTS BY
THE PERSONS CONCERNED. SUCH MEASURES MAY INCLUDE , FOR EXAMPLE
, PROVISIONS REQUIRING THE EMPLOYER TO OFFER A POST TO THE
CANDIDATE DISCRIMINATED AGAINST OR GIVING THE CANDIDATE
ADEQUATE FINANCIAL COMPENSATION , BACKED UP WHERE NECESSARY BY
A SYSTEM OF FINES . HOWEVER THE DIRECTIVE DOES NOT PRESCRIBE
A SPECIFIC SANCTION ; IT LEAVES MEMBER STATES FREE TO
CHOOSE BETWEEN THE DIFFERENT SOLUTIONS SUITABLE FOR
ACHIEVING ITS OBJECTIVE .
2. EU LAW SUPREMACY
2.1. Italy lex posterior derogat legi priori
6/64 Costa v. ENEL
"The transfer by the States from their domestic legal system to the
Community legal system of the rights and obligations arising under
the Treaty carries with it a permanent limitation of their
sovereign rights, against which a subsequent unilateral act
incompatible with the concept of the Community cannot
"It follows (…) that the law stemming from the treaty, an
independent source of law, could not, because of its special
and original nature, be overridden by domestic legal
provisions, however framed, without being deprived of its
character as Community law and without the legal basis of
the Community itself being called into question."
„The integration into the laws of each Member State of provisions which
derive from the Community, and more generally the terms and spirit of
the Treaty, make it impossible for the states, as a corollary, to accord
precedence to a unilateral and subsequent measure over a legal
system accepted by them on a basis of reciprocity. Such a measure
cannot therefore be inconsistent with a legal system. The executive force of
Community law cannot vary from one State to another in deference to
subsequent domestic laws, without jeopardising the attainment of the
objectives of the Treaty …”
What is the source of precedence?
Article 10 EC/ now art. 4 TUE the principle of loyalty/sincere cooperation
2.2. Is the national law in conflict with EU law valid?
„Every national court must, in a case within its jurisdiction, apply
Community law in its entirety and protect rights which the latter confers
on individuals and must accordingly set aside any provision of national law
which may conflict with it, whether prior or subsequent to the Community rule”
what are the effects of the conflict?
supremacy binds courts to apply EC law to national legislation after
incorporation of Community rule into national legal order
every national court must apply EC law and set aside provision of
national law which may conflict, whether prior or subsequent to
the Community rule
conflicting national law is inapplicable not void ab initio !!! EC
law must prevail
2.3. May conflicting norms stay in the system?
167/73 Commission v. France
2.4. Who is bound by supremacy?
103/88 Frattelli Constanzo v. Commune di Milano
2.5. Does supremacy apply only to statutes?
2.6. Supremacy over constitution?
interlocutory injunction (interim measures) against the Crown to suspend the
Merchant Shipping Act 1988
“It must be added that the full effectiveness of Community law would be just as
much impaired if a rule of national law could prevent a court seized of a dispute
governed by Community law from granting interim relief in order to ensure the full
effectiveness of the judgement to be given on the existence of the rights claimed
under Community law. It follows that a court which in those circumstances would
grant interim relief if it were not for a rule of national law, is obliged to set aside
constitutional principle of parliamentary sovereignty ECA 1972
C-285/98 Tanja Kreil
2.7. Supremacy of EU non-self-executing norms?
102/79 Commission v. Belgium/ only administrative practices to implement the
“A MEMBER STATE CANNOT RELY UPON DOMESTIC DIFFICULTIES OR PROVISIONS
OF ITS NATIONAL LEGAL SYSTEM , EVEN ITS CONSTITUTIONAL SYSTEM , FOR
THE PURPOSE OF JUSTIFYING A FAILURE TO COMPLY WITH OBLIGATIONS AND
TIME-LIMITS CONTAINED IN COMMUNITY DIRECTIVES”
2.8. Legal basis of supremacy
Principle of loyalty /art. 10 EC/ now art. 4 para. 3 TUE
Express provision in Constitutional Treaty of 2004 + declaration
LT declaration No. 17
“17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of
the European Union, the Treaties and the law adopted by the Union on the basis of the
Treaties have primacy over the law of Member States, under the conditions laid down by
the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council
Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
"Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle
of Community law. According to the Court, this principle is inherent to the specific nature of
the European Community. At the time of the first judgment of this established case law
(Costa/ENEL,15 July 1964, Case 6/6411) there was no mention of primacy in the treaty. It is still the
case today. The fact that the principle of primacy will not be included in the future treaty
shall not in any way change the existence of the principle and the existing case-law of the
Court of Justice."
1 "It follows (…) that the law stemming from the treaty, an independent source of
law, could not, because of its special and original nature, be overridden by domestic
legal provisions, however framed, without being deprived of its character as
Community law and without the legal basis of the Community itself being called into
3. Direct application of regulations
— transposition of regulations is not permitted because it disguises
the source of law (in some cases a state must change national law to
enforce a regulation)
— individuals may:
o rely on them against other individuals and MSs
o invoke the general objective or purpose of legal regimes
created by regulation to challenge national law
34/73 Fratelli Variola v. Italian Finance Ministry
F: Italy was charging a fee on goods from EC and non-EC states
arrived in Italy.
There was a EC Regulation banning charges on agricultural
I: Is the regulation of direct effect?
ECJ: A regulation has immediate effect. The extra fee is illegal.
Fratelli is entitled to be reimbursed for their payment of the fee.
MS have strict obligation not to obstruct direct applicability of
regulations (principle of loyalty)
A regulation must have uniform and simultaneous
application. MS may not vary the date on which a regulation
comes into force.
50/76 Amsterdam Bulb