Direct effect has expanded from Community Treaty provisions, over reg- ulations, directives, decisions and certain international agreements.
However, what is the internal effect of the law deriving from the second and third pillars, i.e. non-Community Union Law? Can it be invoked before the national courts? Can or must the national courts protect rights which individuals may derive from it? Do individuals derive any rights from it? There are two important elements which complicate the case for direct effect. First, Article 34 EU expressly excludes direct effect of frame- work decisions and decisions adopted under Title VI EU. Second, the Court of Justice has very reduced jurisdiction in the third pillar, and none in the second pillar.
Article 34 (2)(b) and (c) EU state that framework decisions and decisions adopted in the framework of Title VI EU ‘shall not entail direct effect’. It is for the first time that the text of the Treaties mentions the notion of ‘direct effect’. Until the Treaty of Amsterdam, the notion was absent from the text of the Treaties, and had remained entirely judge-made, even if it is con- sidered one of the cornerstones of the European constitutional construct, one of its ‘twin pillars’. At a time when the usefulness concept of direct effect is being questioned in the context of Community law,90 it is excluded expressis verbis from part of European Union law. The policy question has now been answered by the Member States in the constitu- tional document: courts should not be involved (in a specified manner) in the enforcement of these decisions, and individuals are not considered to derive rights directly from them. Or with a touch of malice: are the decisions and framework decisions not to be considered excessively compulsory?
What exactly does it mean that framework decisions and decisions
‘shall not entail direct effect’? The exclusion may either be absolute in the sense that direct effect is excluded both as a matter of Union law and from the national perspective; or it may, alternatively, be restricted to an exclusion
88 LFM Besselink, ‘Curing a ‘Childhood Sickness’? On Direct Effect, Internal Effect, Primacy and Derogation from Civil Rights. The Netherlands Council of State Judgment in the MettenCase’, (1996) 3 MJ, 165, at 170.
89 S Prechal suggests that direct effect could be omitted and be replaced with the ‘usual’
questions relating to the applicability of the rule to a particual legal relationship, etc., which play a role in the context of applying any norm. I fail to see how and why the exclusion of direct effect would make the answer to such questions any easier.
90 S Prechal, ‘Does Direct Effect Still Matter?’, (2000) 37 CML Rev, 1047, at 1067–68.
as a matter of Union law. The latter alternative would imply that it is a matter for national law whether or not the relevant provisions may entail direct effect. Direct effect is, then, denied only as a matter of European law, and the question may be answered differently from the point of view of national constitutional law. National courts, may, in cases coming before them, have to answer the issue on the basis of their own national constitutional rules, as was the case with Community law before Van Gend en Loos.91Consequently, the question of the direct effect of a provision of a framework decision or a decision may be answered differently in various Member States, and Title VI law will not be uni- formly applied and enforced. Nevertheless, even if it is assumed that the issue of direct effect may be answered in accordance with national con- stitutional law, direct effect will most likely be rejected. In order to ascer- tain whether a norm produces direct effects or is self-executing, the judge will first look at the text of the Treaty. In this case the Treaty expressly denies direct effect and the national judge will probably accept the expressed intention of the Contracting Parties and deny direct effect.
Direct effect in Community law means that individuals and national courts become involved, as a matter of Community law and in each Member State alike, in the application and enforcement of Community law; individuals can derive rights from directly effective provisions of Community law and national courts are under an obligation, a ‘mandate’, to protect them. Direct effect adds, to public enforcement procedure of Article 226 EC,92 a form of ‘private enforcement’, whereby the national courts become the common courts of Community law and, mostly on the instigation of individuals, enforce Community law, most often against defiant Member States. The tenor of the entire Title VI of the EU is the denial of the involvement of individuals,93 and courts, both national94
91 See the submissions of the Netherlands and Belgian Governments in Case 26/62Van Gend en Loos [1963] ECR 1.
92 There is virtually no parallel to Art. 226 EC (Art. 169 of the Treaty) infringement actions against the Member States. A partial substitute is to be found in Art. 35(7) EU granting jurisdiction to the Court to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Art. 34(2) EU whenever such dis- pute cannot be settled by the Council within six months; and jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or application of conventions under Art. 34(2)(d) EU.
93 In a Title on Police and Judicial Cooperation in Criminal Matters, which is so related to individuals and their (fundamental) rights! Art. 6 EU does proclaim the Union’s respect for human rights and fundamental freedoms and states that the Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the common constitutional traditions of the Member States, as general principles of Community law. Yet, while under Art. 46 EU the Court’s jurisdiction applies to Art. 6 EU, it does not grant additional jurisdiction where it did not already exist under the EC Treaty or the EU Treaty.
94 Through the denial of direct effect.
and European.95 The Court of Justice has acquired competences under this Title, but these are aimed mostly at controlling the Union institutions, not the Member States, who escape review, both from the Court of Justice96 and their own courts.97 The question will arise whether the Strasbourg Court of Human Rights may become involved instead.98On the other hand, given that there is a system of preliminary references under Article 35 EU, it must have been presumed that national courts could be confronted with cases under Title VI of the TEU, including deci- sions and framework decisions. In fact, the first references for preliminary ruling have been made, in the cases of Hỹseyn Gửzỹtok and Klaus Brỹgge.
In these cases, one of the courts had asked about the effect of a provision of the Schengen Implementing Convention. The Advocate General stated that the Court did not have jurisdiction to answer the question and had to restrict itself to explaining the autonomous interpretation of the relevant provisions.99 It may be recalled that in Van Gend en Loos, the mere exis- tence of the preliminary rulings procedure was used by the Court as one of the grounds for accepting the direct effect doctrine: ‘In addition, the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals’.100 In the case of Title VI, the Court would have to refine this statement, and add that ‘an authority which can be invoked by their nationals before those courts’ would have to mean something other than ‘direct effect’ in the sense of first pillar law.
As to the merits, what exactly does it mean that a provision ‘shall not entail direct effect’? It seems logical simply to reverse what direct effects means. With respect to the initial meaning of ‘direct effect’ as creating rights for individuals, the exclusion of direct effect could be taken to mean that a framework decision ‘does not create rights for individuals’: indi- viduals must await the implementation of the framework decision by the national authorities and until such time as the framework decision is of no avail to them. In the context of the more procedural notion of invokability – direct effect as the possibility to invoke a provision – exclusion of direct effect would then mean that individuals cannot rely on the relevant
95 This aspect is developed further below. as M Shapiro put it: ‘To exclude the Court of Justice from the pillar of justice is a bit much’, in M Shapiro, ‘The European Court of Justice’, in P Craig and G de Búrca (eds), The Evolution of EU Law, (Oxford, OUP, 1999), 321, at 344.
96 In the absence of a ‘real’ enforcement procedure.
97 Due to the absence of direct effect.
98 The question will be discussed further below.
99 Opinion of AG Ruíz-Jarabo-Colomer in Cases C–187/01 Criminal proceedings against Hỹseyn Gửzỹtok and C–385/01 Criminal proceedings against Klaus Brỹgge [2003] ECR I–1345.
100Case 26/62Van Gend en Loos [1963] ECR 1, at p 12.
provision before a national court. Where direct effect is meant to connote the justiciability of the norm or ‘the obligation of a court or another authority to apply the relevant provision of Community law, either as a norm which governs the case, or as a standard for review’,101the exclu- sion of direct effect would mean something like national courts and other authorities being precluded from applying the relevant provision either as a norm governing the case or as a standard for review.
Now, given that the express exclusion of direct effect amounts to an exception in Union law, it can be argued that it must be interpreted restric- tively. The denial of direct effect could be limited to a denial of ‘the cre- ation of rights for individuals’, while allowing the provision to be invoked as a criterion of legality for national acts.102 In line with the French approach distinguishing between the ‘invocabilité de substitution’and the
‘invocabilité d’exclusion’, the refutation of direct effect could be taken to rule out the possibility for a national judge to apply a provision of a framework decision or a decision to a concrete case, but to permit him to merely set aside conflicting national law. Thus the courts would have an important part103in enforcing these measures against the Member States.
Guidance on the interpretation of the denial of direct effect in Article 34 EU may come from the Court of Justice: it may not grant direct effect to decisions and framework decisions, yet, it may interpret the provisions of Title VI themselves, and thus may be interrogated about the meaning of the phrase ‘shall not entail direct effect’ in Article 34 (2)(b) and (c) EU.
Nevertheless, the notion of ‘interpretation’is the same as under Article 234 EC, which, ever since Van Gend en Loos, includes the interpretation of the effects of particular measures of Community law in the domestic legal order including the issue of direct effect. For this type of Union law, how- ever, the answer is given in the Treaty: these provisions are not to be awarded direct effect. It is not likely that the Court will derive from the text of Article 34 EU and decide to make it a question for the Court to answer. As the Court stated long time ago in Kupferberg ‘Only if [the question concerning the internal effects]has not been settled by the agreement does it
101S Prechal, Directives in European Community Law (Oxford, Clarendon Press, 1995) 276; see also her ‘Does Direct Effect Still Matter?’, (2000) 37 CML Rev1047, at 1048.
102Similar to the distinction proposed by AG Saggio in his Opinion in Case C–149/96 Portugal v Council (Portuguese Textiles Case)[1999] ECR I–8395, at para 18, concerning the issue whether, in an action for annulment brought by a privileged applicant, the provi- sions of GATT or the WTO Agreement could be recognized as binding on the Community institutions and therefore as a criterion of legality, even though such provi- sion may be held not to produce direct effects in the sense that they conferring rights for individuals which they may invoke before national courts. The Court rejected the distinction in its judgment. See egGA Zonnekeyn, ‘The status of WTO law in the Community legal order: some comments in the light of the Portuguese Textiles case’, (2000) 25 ELR293.
103The role of the ECJ is extremely limited in this respect in the absence of a veritable enforcement procedure and the restricted preliminary rulings procedure.
fall for decision by the courts having jurisdiction in the matter, and in particular by the Court of Justice within the framework of its jurisdiction under the Treaty, in the same manner as any question of interpretation relating to the application of the agreement in the Community’.104 In the case concerning the direct effect of WTO the Court referred to the exclusion of direct effect in the Decision of the Council adopting the WTO Agreement on the part of the Community.105
Finally, for the remainder of non-Community Union law, other than the decisions and framework decisions, with respect to which the Treaty is silent, the question of direct effect will have to be answered by the Court of Justice and the national courts. The only complicating factor is that given the restricted version of preliminary rulings in this context, not all national courts may be able to invoke the assistance of the Court of Justice.
They will then have to address the question of direct effect themselves.
4.2. THE DOCTRINE OF SUPREMACY
If direct effect, for the national courts, constitutes an instruction to apply Community law in a certain way,106 supremacy explains its relation to national law and implies mostly an obligation for the national courts to disapply conflicting measures of Community law, resulting from the duty to apply Community law (with precedence). As in the case of direct effect, the Treaty is silent on the question of the relationship between national law and Community law. It was created or discovered by the Court of Justice.
The question of the domesticrelation of treaty provisions with conflicting provisions of national law is one, which, in traditional international law is for the national legal order to decide. International law prevails over national law before international courts, but there is no rule in interna- tional law, which imposes supremacy of the international norm before national courts. Evidently, the failure of the national courts to enforce the international obligations of the State may entail the international liability of the State if the failure to award supremacy to the treaty provision leads to a violation of the State’s obligations thereunder. Nonetheless, there is no obligation under international law for domestic courts to grant precedence to treaties over national law. In contrast, the Court of Justice dictates
104Case 104/81Hauptzollamt Mainz v CA Kupferberg & Cie KG a.A[1982] ECR 3641, at para 17.
105It did not however use it as one of its main arguments. It merely seemed to add it to its other argument, almost like an obiter. Yet, there is an important distinction with the case of the TEU where the exclusion is part of the body agreed upon by the Contracting Parties, while in the case of the WTO the denial of direct effect is contained in a unilat- eral document.
106As a rule governing the case or a standard for review: The duties of national courts reach beyond the limits of direct effect: conform interpretation, ‘indirect effect’ and the Francovich mandate are the main examples, see below.
supremacy as an inherent feature of Community law, and the domestic constitutional rules and principles relating to the status of Community law in the internal legal order cannot prevent acceptance of the principle.