The Great Doctrines to have emerged from the case law of the CJEU

Question 1

The Autonomy of the European Union Legal Order (Is Community (now European Union) law a form of national law, a form of international law or neither of these - a new form of law?)

Answer 1

• Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963 - A new form of law
• Case 6/64 Costa v. ENEL EU:C:1964:66 – EEC Treaty has created its own legal system

Question 2

What does the Autonomy of the European Union Legal Order mean?

Answer 2

Is Community (now European Union) law a form of national law, a form of international law or neither of these - a new form of law?

Question 3

What does “Direct Effect” mean?

Answer 3

• Does Community (now European Union) law confer upon individuals rights which they can maintain before the national courts/rights which the national courts must enforce? (Yes)

Question 4

EU law can have direct effect

Answer 4

 Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963:1

Question 5

Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963:1

Answer 5

The Court:
 asserted (implicitly)Kompetenz Kompetenz
( the right to name the Court and the legal system which had right to decide direct effect issue)

 asserted (implicitly) Kompetenz
( i.e., it appointed itself and the EU legal system the referee of the direct effect issue)

 exercised Kompetenz
( i.e., it held Community law directly effective)

• Purposive reasoning

Question 6

What is the significance of Van Gend En Loos?

Answer 6

• Establishes [EU] law confers rights on individuals.
• Establishes EU law does not merely have states as its subjects
• Creates a new enforcement mechanism for EU law
• Ensures the uniform nature of European law
• Gives national courts a new job.
• Kept the momentum of integration going.

Question 7

What does “supremacy” mean?

Answer 7

If a rule of Community (now European Union) law conflicts with a rule of national law, which is to prevail? (EU law)

Question 8

Case 6/64 Costa v. ENEL EU:C:1964:66

Answer 8

• Established primacy
• Terms, spirit and treaty objectives

Question 9

Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114 (The International Trading Company case)

Answer 9

• CJEU – EU law prevails over FR guarantees in national constitution (Lowest form of EU law prevails over highest form of national law)
• Otherwise, would deprive EU of essential character and legal basis of EU;
• General Principle devised that EU law must respect fundamental rights; EU laws must respect EU fundamental rights guarantees; All EU law supersedes national law

Question 10

Case 106/77 Simmenthal EU:C:1978:49

Answer 10

1. Directly effective EU law renders automatically inapplicable any contrary national law
2. Every national court, in any case within its jurisdiction, has to set aside any existing rule of domestic law that contravenes EU law
3. Even against contrary provisions of national Constitutional law, EU law prevails.

Question 11

Case C-10/97 IN.CO.GE.’90 EU:C:1998:498

Answer 11

 National laws that post-date a conflicting EU rule are rendered automatically inapplicable

Question 12

Case C-573/17 Criminal proceedings against Popławski EU:C:2019:530

Answer 12

 Direct effect triggers the supremacy of EU law i.e., only directly effective EU law provisions are supreme to national law

Question 13

Declaration no. 17 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon

Answer 13

Treaties have primacy over the law of Member States

Question 14

Weiss case

Answer 14

“the Basic Law does not authorise German state organs to transfer sovereign powers to the European Union in such a way that the European Union was authorised, in the independent exercise of its powers, to create new competences for itself. It prohibits conferring upon the European Union the competence to decide on its own competences.”

Question 15

Limits to supremacy in the case-law of the German Federal Constitutional Court (BVG)

Answer 15

 Fundamental rights

 Ultra vires

 Constitutional identity

Question 16

Solange I: Internationale Handelsgesellschaft,
BVG decision of 29 May 1974

Answer 16

If conflict between Community law and…the guarantees of fundamental rights in the Constitution…the guarantee of fundamental rights in the Constitution prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.”

Question 17

Solange II Re Wünsche Handelsgesellschaft

Answer 17

So long as EU generally ensure effective protection for fundamental rights in comparison to German constitutional guarantees, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German civil courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution.”

Question 18

Bananas ruling BVerfG, Order of 7 June 2000 2 BvL 1/97

Answer 18

Limits to supremacy in the case-law of the German Federal Constitutional Court (BVG):

1. Fundamental rights
2. Ultra vires
3. Constitutional identity

Question 19

Brunner v. The European Union Treaty [1994] 1 CMLR 57 (Maastricht case)

Answer 19

– GFC = MS as masters of the Treaties; EU law only accepted only in so far as not ultra vires

Question 20

Simmenthal (Italian case)

Answer 20

CJEU:
- Directly effective EU law provisions render inapplicable any conflicting provision of national law; had to apply EU law in its entirety and set aside the conflicting provision of national legislation
- Rule in Italian law about referring disapplying a statute to Italian CC; rule like that itself violated EU law, local court didn’t have to refer the CC
1. Tells us Directly effective EU law provisions render inapplicable any conflicting provision of national law
2. All courts have to set aside the conflicting provision; National provision functions as normal where no conflict
3. Even against contrary provisions of constitutional law, EU law prevails

Question 21

Honeywell BVerfG 2 BvR 2661/06, 6 July 2010

Answer 21

Ultra vires review in manner open towards EU law and only conducted where it is manifest that EU acts have taken place outside the transferred competences”

Question 22

Gauweiler BVerFG 2 BvR 2728/13

Answer 22

European Central Bank’s OMT programme not ultra vires EU competences (BVG followed ECJ Art 267 ruling to same effect) but little trace of the Honeywell Europe-friendly approach

Question 23

PSPP/Weiss 2 BvR 859/15

Answer 23

 A bombshell ruling by German Federal Constitutional Court (BVG)
European Central Bank Public Sector Asset Purchase Programme (PSPP) (‘quantitative easing’/‘helicopter money’) held ultra vires ECB competences
AND
Art 267 TFEU ruling of ECJ holding PSPP was not ultra vires ECB competences was defied by the BVG, and itself held to have been ultra vires ECJ competences!

Question 24

The Lisbon case – BVerfG 2 BvE 2/08 30 June 2009

Answer 24

Constitutional Identity exception

Question 25

SITA case

Answer 25

Ireland adopted national constitutional identity limit to primacy

Question 26

Lisbon K 32/09 24 November 2010

Answer 26

Polish Constitution has primacy over EU law.

Question 27

Selected provisions of the Treaty on European Union K3/21 7 October 2021

Answer 27

Articles 1, 2, 4(3) and 19(1) TEU as interpreted by the ECJ (regarding judicial independence and effective judicial protection) held by Polish Constitutional Tribunal to violate the Polish Constitution

Question 28

What are the conditions that must be met before a provision can be regarded as directly effective?

Answer 28

1. clear and unambiguous
2. unconditional
3. not dependent on further action (either by a Member State or by European Union authorities)
    Case 43/75 Defrenne v. SABENA [1976] ECR 455 - This third requirement will be deemed to have been met if the European Union provision contains a deadline for action and that deadline has passed without the requisite action having been taken

Question 29

What kinds of EU laws can be directly effective?

Answer 29

 Direct Effect of European Union Treaty Provisions
- Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963:
- Case C-438/05 International Workers’ Federation v. Viking Line ECLI:EU:C:2007:77
 Direct Effect of the Charter of Fundamental Rights of the European Union
- Case C-617/10 Åkerberg Fransson ECLI:EU:C:2013:105
- C-414/16 Egenberger v Evangelisches Werk ECLI:EU:C:2018:257
- C-569/16 Stadt Wuppertal v Bauer ECLI:EU:C:2018:871

 Direct Effect of General Principles
- C-144/04 Mangold v Helm ECLI:EU:C:2005:709
- C-555/07 Kücükdeveci v Swedex ECLI:EU:C:2010:21
 Direct Effect of European Union Secondary Legislation
 Direct Effect of Regulations
Note Article 288 TFEU
Note e.g., Case 93/71 Leonesio v. Minister for Agriculture [1972] ECR 287
 Direct Effect of Decisions
Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825
 Direct Effect of Directives (in ‘vertical’ cases)
- Case 41/74 Van Duyn v. Home Office [1974] ECR 1337
- Case 148/78 Pubblico Ministero v. Ratti [1979] ECR 1629

Question 30

Conditions Which Must be Met Before A Provision of a Directive Can Be Regarded as Directly Effective

Answer 30

• The same conditions apply but are usefully reformulated in the following manner:
• The relevant provision of the Directive must be:
   clear and unambiguous
   unconditional
   and the deadline for implementing the Directive must have expired, without the State having implemented this provision or without having implemented it properly.
   See e.g., Case 148/78 Pubblico Ministero v. Ratti [1979] ECR 1629

Question 31

In what ways does the Court of Justice get around the lack of horizontal direct effect of Directives?

Answer 31

1. Giving a Broad Definition of the Notion of ‘State’ (and Hence of What Constitutes Vertical Direct Effect)
2. Indirect Effect(also known as the ‘interpretive obligation’ and the ‘duty of sympathetic interpretation’)
3. Incidental Horizontal Effect
4. Direct Effect of General Principles
5. Direct Effect of the Charter of Fundamental Rights of the European Union
6. State Liability

Question 32

1. Giving a Broad Definition of the Notion of ‘State’
   (and Hence of What Constitutes Vertical Direct Effect)

Answer 32

• Case 152/84 Marshall v. Southampton and South-West Hampshire Area Health Authority [1986] ECR 723
• Case 188/89 Foster v. British Gas [1990] ECR I-3313
  Para. 20 “…a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a public service under the control of the State and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals is included…among the bodies against which the provisions of a directive capable of having direct effect may be relied upon.

Question 33

2. Indirect Effect(also known as the ‘interpretive obligation’ and the ‘duty of sympathetic interpretation’)

Answer 33

i.e., the requirement that national law be interpreted in the light of the wording and purpose of Community directives (even directives which lack direct effect).

• Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891
• Case 80/86 Criminal Proceedings against Kolpinghuis Nijmegen BV [1987] ECR 3969
• Case 106/89 Marleasing SA v. La Comercial Internacionale de Alimentacion SA [1990] ECR I-4135

Question 34

3. Incidental Horizontal Effect

Answer 34

• C-194/94 CIA Security International v Signalson and Securitel EU:C:1996:172
• Case C-443/98 Unilever Italia v Central Food EU:C:2000:496
• Case C-122/17 Smith v Meade EU:C:2018:631

Question 35

4. Direct Effect of General Principles

Answer 35

• C-144/04 Mangold v Helm ECLI:EU:C:2005:709
• C-555/07 Kücükdeveci v Swedex ECLI:EU:C:2010:21

Question 36

5. Direct Effect of the Charter of Fundamental Rights of the European Union

Answer 36

• C-414/16 Egenberger v Evangelisches Werk EU:C:2018:257
• C-569/16 Stadt Wuppertal v Bauer
  EU:C:2018:871

Question 37

6. State Liability

Answer 37

i.e., liability on the part of the State for harm caused to individuals by breaches of Community law for which that Member State is responsible
* (Joint) Cases C-6 & 9/90 Francovich and Bonifaci v. Italy [1991] ECR I-5357 and Cases C-46 & 48/93 Brasserie du Pêcheur/Factortame III [1996] ECR I-1029
* The latter case now sets out the elements which must be present in order to establish state liability. These are:
(i) a rule {of EU law}conferring rights
(ii) a sufficiently serious breach
(iii) a causal link