The European Court did not invent the notion of direct effect out of the blue. The notion is related to others, which in domestic law play a role in
3 Case 26/62Van Gend en Loos [1963] ECR 1.
4 Case 57/65 Lütticke[1966] ECR 205 (direct effect in case of positive obligations imposed on the Member States by a Treaty provision); Case 41/74 Van Duyn[1974] ECR 1337 (direct effect of directives); Case 43/75 Defrenne[1976] ECR 455 (limited horizontal direct effect of a Treaty provision); Case 8/81 Becker[1982] ECR 53 (direct effect of directives restated); Case 104/81 Kupferberg[1982] ECR 3659 (direct effect of international agree- ments concluded by the Community).
5 Case 152/84Marshall [1986] ECR 723 (no horizontal direct effect of directives); Cases 21–24/72 International Fruit Company[1972] ECR 1219 no direct effect of (certain provi- sions of) GATT 1947; The question as to whether the WTO agreement and GATT 1994 do produce direct effect in the Community legal order continues to be referred to the ECJ on a regular basis, see below.
6 P Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community law’, (1983) ELRev155, at 155.
determining the effect of provisions of international law in the internal legal order, such as ‘internal effect’ or the ‘self-executing’ nature of treaty provisions. While this is probably the area with which the notion is most associated today, it is also relevant in other fields. There are certain posi- tive legal norms which by their nature or the intention of the organs which drafted them, do not have direct legal effects for citizens, and merely have effect for certain public authorities, legislative or administra- tive, or are designed as guidelines for them.7Many national constitutions contain such non-directly effective norms.8 The courts cannot enforce them for lack of precision; and before implementation by the Legislature individuals cannot derive rights from them. Arguably, the absence of direct effect is not the normal state of the law. Any legal rule is devised so as to operate effectively. Some would even argue that if it is not operative, it is not a rule of law.9In the field with which the notion is mostly associ- ated, that of the status of international law in the internal legal order of a State, direct effect of a treaty provision concerns its effectiveness in the domestic legal order. A treaty provision is, upon its entry into force, oper- ative as between the Contracting Parties on the international plane; the question of direct effect relates to the effectiveness of the norm in the internal legal order.
Direct effect, direct applicability and analogous concepts existed long before the Court received the questions of the Tariefcommissiein the Van Gend en Looscase. With respect to international law the phenomenon was, at the time, generally referred to as the self-executingcharacter of a norm.
The issue was known in American law ever since Chief Justice Marshall in 1829 explained that ‘Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the con- tract before it can become a rule for the court’.10He thus construed the essence of the self-executing character of treaty provisions in terms of the justi- ciabilityof the norm: if a treaty provision needs no further execution by
7 See also 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) MJ, 165, at 169.
8 Examples would be constitutional provisions granting a right to protection of the envi- ronment, as in Article 23 of the Belgian Constitution; other examples are social and eco- nomic right included in many Constitutions. For a comparison between direct effect of Irish constitutional provisions and Community law, see A Sherlock, ‘Self-executing Provisions in EC Law and under the Irish Constitution (1996) 2 EPL, 103.
9 See P Pescatore, ‘The Doctrine of “Direct Effect”: An Infant Disease of Community Law’, (1983) ELR, 155, at 155.
10 Supreme Court (US), Foster and Elam v Neilson, US SC, 1829, 2 Peters (US) 253.
the political branches, it becomes a rule for the court. A self-executing norm is one that is legally perfect and thus lends itself to application by courts of law. The quote also demonstrates that there is a question that precedes direct effect, namely that of the insertion in the domestic legal order, or at least of the openness of the legal order to international law, whether with or without transformation.11One question is whether inter- national law is at all relevant in the domestic legal order. The next ques- tion is whether a court can take cognisance of the rule, generally speaking, and then, whether it can apply a particular norm to a case brought before it. Under the US Constitution, treaties are considered to form part of the law of the land. The subsequent question then is whether treaty provi- sions can also be applied in court proceedings. There apparently is no rea- son why a court should not, generally speaking, apply international law, since it is considered to be part of the law of the land. The last question, of whether a particular norm can be applied in a particular case, depends on its ‘self-executing’ character; in other words, whether it is legally per- fect and needs no further execution.
One hundred years later, the Permanent Court of International Justice in the Jurisdiction of the Courts of Danzigcase12discussed the ‘direct effect’ of Treaty provisions on the rights and obligations of individuals:‘the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts.’International treaties may not only operate between States at the international, inter-state level, they may also be intended to affect the rights and obligations of individuals.13
In fact, the reference to the notion in the Danzig decision of the Permanent Court was rather exceptional, since under classic interna-
11 This resembles the difference between ‘direct applicability’ and ‘direct effect’, see J Winter, ‘Direct Applicability and Direct Effect: Two Distinct and Different Concepts in Community Law’, (1972) 9 CML Rev425; and more recently P Elefteriadis, ‘The Direct Effect of Community Law: Conceptual Issues’, (1996) YEL, 205, who makes a different distinction between both notions than Winter did. The ECJ uses them interchangeably, lumping both issues together.
12 Permanent Court of International Justice, Advisory Opinion of 3 March 1928, Jurisdiction of the Courts of Danzig, PCIJ Series B, no. 15, at 17.
13 Spiermann claims that the ECJ’s understanding of the position under international law on the direct effect of treaties was inadequate, and did not correspond to the reality of international courts and tribunals’ mention of the possibility of direct effect. He mentions some other decisions; however, it is submitted that none of the examples mentioned by Spiermann which make reference to direct effect, use the notion in the way it was used by the ECJ In one case, the principle is used to grant a right of standing to an individual before the Arbitral Tribunal of Upper Silezia; while this is remarkable under international law, it is not the version of direct effect used in Van Gend en Loos; other examples which he brings forward concern the military tribunals concerning crimes committed by indi- viduals against the international rules on warfare, which constitutes a very specific situ- ation; O Spiermann, ‘The Other Side of the Story: An Unpopular Essay on the Making of the European Community Legal Order’, (1999) EJIL, 763, at 765–71.
tional law, the question of direct effect and the applicability of provi- sions of international law is a matter of national (constitutional) law.
Indeed, the question of the relation between international law and national law, at least as far as the domestic effect of international law in the domestic legal orders is concerned, depends on national prefer- ences concerning the version of monism or dualism towards interna- tional law. Each of the six original Community Member States, prior to 1963, had their own vision of the applicability of treaties by the domestic courts in general.14
The notion of direct effect existed: there was nothing novel about it.
What, then, is so special about direct effect in the Community legal order, that it has been elevated to the level of constitutional principle?15 What was unusual in Van Gend en Looswas that an international court decided the issue16 on the basis of Community law and for all the national courts alike, whereas under international law the question is answered on the basis of domestic constitutional rules and principles.17 In Van Gend en Loos the Court of Justice formulated the basic tenets of the relationship between Community law and national law for all the national legal systems and for all the national courts, irrespective of their constitutional principles and traditional attitudes towards interna- tional law. What was different and novel was that an international court ruled on the effect of the Treaty in the domestic legal order, implicitly declaring the constitutional provisions and traditions irrelevant.
Whereas for classic international agreements the national courts had to solve issues of applicability, justiciability and the creation of rights and obligations for individuals by recourse to constitutional principles and attitudes, these principles and attitudes became redundant in the case of Community law, and the Court of Justice positioned itself as the judge of the direct effect of Community law in the national legal orders, by making it a question of the interpretation of the relevant provision.
14 P Pescatore, ‘De werkzaamheden van de “juridische groep” bij de onderhandelingen over de Verdragen van Rome’, Studia Diplomatica, (1981) 167, at 179–80.
15 On the constitutionalising effect of direct effect and supremacy: E Stein, ‘Toward Supremacy of Treaty-Constitution by judicial fiat in the European Economic Community’, Riv.dir.int., 1965, 3; E Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’, (1981) 75 Am J of Int Law, 1; GF Mancini, ‘The Making of a Constitution for Europe’, (1989) 26 CML Rev, 595; JHH Weiler, ‘The Transformation of Europe’, 100 Yale LJ, 1991, 2403, also published in his The Constitution of Europe (Cambridge, CUP, 1999) 10.
16 The issue is not the question as to whether a particular provisions has direct effect in a legal system where the possibility of treaty provisions in general has been accepted, but rather the question as to whether it is at all possible for a provision to be directly effec- tive, irrespective of the domestic preferences as to monism or dualism.
17 The fact that the ECJ assumed jurisdiction to answer the question was therefore crucial, see below.
4.1.3. Van Gend en Loos
Some words about the legal background of the Van Gend en Looscase are in order.18To begin with, it was hardly a coincidence that the question of direct effect of a Treaty provision was referred by a Dutch court. The (then) article 65 of the Netherlands Constitution held that ‘provisions of agreements which, according to their terms, can be binding on anyone shall have such bind- ing force after having been published’. Article 66 added: ‘Legislation in force within the Kingdom shall not apply if this application would be incompatible with provisions of agreements which are binding upon anyone and which have been entered into before or after the enactment of such legislation’. While the first pro- vision was perceived to open up the Dutch legal order for international law, the second decided on the fate of national law that conflicted with the international provisions effective in the domestic legal order. Yet, the courts’ traditional deference to primary legislation and the express rejec- tion of judicial review in the Constitution, prevented the courts from act- ing in line with the constitutional provision on treaties. The constitutional provisions had during the first ten years of their existence never led to a judicial review of an Act of Parliament in the light of treaty provisions.
The preliminary rulings procedure of Article 177 of the EEC Treaty introduced the Court of Justice as a deus ex machina. In a 1962 case,19the Hoge Raadruled that the question whether provisions of a Treaty were
‘binding on anyone’ could, as a matter of Dutch law, only be answered on the basis of interpretation of the Treaty provisions. Since the question of the effectin the domestic legal order therefore became one of interpre- tation, it could in the case of Community law be referred to the Court of Justice. This way, the Court of Justice became involved in upholding the Dutch Constitution.20The Dutch and Belgian Governments intervened in Van Gend en Loos and denied jurisdiction of the Court of Justice. In their opinion, the question of direct effect related to the application of Community law and was one that, as for ordinary international law, was to be decided on the basis of national constitutional law.
The Court of Justice followed the cue of the Tariefcommissie and the Hoge Raadthat the question of direct effect was one of interpretation of Community law. The Court therefore was automatically competent to answer the question referred to it, not only for the Dutch courts, but for all other courts throughout the Community. The Court then distinguished the
18 See also M Claes and B De Witte, ‘Report on The Netherlands’, in The European Court and National Courts – Doctrine and Jurisprudence. Legal Change in its Social Context (Oxford, Hart Publishing, 1998) 171.
19 Hoge Raad, decision of 18 May 1962, De Geus en Uitenbogerd v Robert Bosch GmbH, NJ, 1965, 115.
20 So also B De Witte, ‘Direct Effect, Supremacy and the Nature of the Legal Order’, in P Craig and G de Búrca (eds), The Evolution of EU Law (Oxford, OUP, 1999) 177, at 180.
Community Treaties from other international treaties in its famous state- ment that ‘The Treaty is more than an agreement which merely creates mutual obligations between the contracting states’, and ‘the Community constitutes a new legal order of international law (..)’.
The fact that the particular Article 12 of the Treaty was given direct effect in the case at hand was not so shocking, given the text of the provi- sion.21 Yet, what was critical was that the question of direct effect was removed from national constitutional law and laid in the hands of the Court of Justice. From now on, constitutional and judicial traditions would no longer instruct judges as to the effect and applicability of Community law. The national courts were drawn into the Community judicial system with the Court of Justice instructing the courts on the effect of Community law in the domestic legal order. Accordingly a decentralised enforcement system was set up.