I will focus on the effects of EU law. That is what happens when the EU does act, when the EU does use its competences? However, before we can take a closer look at the actual mechanisms that give effect to EU law, I want to make sure that we’re on the same page about what EU law even is. EU law can be viewed as something distinct from national law.
A different legal order which can interact with the national one. Just as the national legal order contains a hierarchy of norms, with, for example, a constitution, laws, administrative decisions, etcetera, the EU legal order also contains different legal instruments.
In terms of EU law, one often speaks of primary law and secondary law. Primary law, has a higher normative value and consists of the treaties. You might of heard of the TEU, the Treaty on European Union. And the TFEU, the Treaty on the Functioning of European Union. Primary EU law, essentially, comes about through agreements between sovereign member states. Secondary law, on the other hand, is produced by the EU institutions themselves.It’s worth mentioning here that the main institutions in this regard are the Council, The European Parliament, and the Commission.
In general terms, secondary law does produce, can take the form of a regulation, a directive, or a decision. Now that we have a better idea of what EU law is, now we can ask ourselves what difference does it make? What are the mechanisms that makes EU law relevant? What makes EU law matter to us? Well, the three simple answers to this are direct applicability, direct effect and primacy.
In relation to direct applicability of EU law, the first thing I would like you to do is to take a good look at article 288 TFEU. As you can see, all three forms of secondary law that I mentioned earlier are binding. Even if directives are only binding as the result. However, it is only regulations that are said to be directly applicable. Well, what does this mean, that regulations are directly applicable? The insistence on direct applicability can be explained by the traditional view of EU law as being part of international law. And hence, something very different from national law.
Traditionally, the question of whether international law becomes applicable law within the legal order of sovereign state is a question left to the state at hand. That is it is up to each state to decide if and how international law should apply in their territory. Following this logic, it would have been up to the member state to decide when EU law should overlap with national law, and be applicable with in the national context. It should be noted, that states have traditionally treated international law in very different ways. Some states, embracing international law as directly applicable on their territory, and some states requiring all international law to first be transposed into national law before it can be applicable.
Therefore, it was very important forthe founders of the EU to set out that some EU law would actually be directly applicable. Hence, it flows from EU primary law that regulation need not, and indeed should not, be transposed into national law.
They are, by their very nature, directly applicable in the member states. From what was said about direct applicability. You might now have the impression that regulations are the only form of EU law that really matters in a national context.
Well, early on in the history of the European union it’s Court of Justice, most commonly known as ECJ, established that a much wider range of EU law was destined to have direct legal effects in the member states. In the classic judgement of Van Gend en Loos, the ECJ introduced for them very first time, and without any clear legal basis in the treaties, the principle of direct effect. Together with primacy, this principle has become the very foundation for giving concrete effects to EU law in the national context. In fact, as far as definitions go, direct effect can be defined as the capacity of EU law to give rise to rights and obligations directly, without the need for further implementation. In practical terms, it means that you should be able to invoke and enforce provisions of EU law with direct effect in your national context. Whether it be before a Spanish court or a Swedish administrative body in a contract dispute or as a defense against criminal prosecution. This definition before you might sound like direct applicability. But direct applicability is not in itself a prerequisite for direct effect. A particular provision of EU law can be deemed to produce direct effect even though the legal instruments where we find the provision is not a regulation.
Instead of connecting direct effect to direct applicability the ECJ chose to expound three concrete conditions that all have to be fulfilled for a specific EU provision to have direct effect. Firstly, the provision has to be clear and precise. Secondly, the provision has to contain an unconditional right to obligation. Directives are a bit particular when it comes to direct effect. Since they are addressed to the member states, and only the end, not the means, are said to be binding, the ECJ ha consistently held that directives can not produce direct effect, at least not between private parties. To this effect it is often stated that there can be no horizontal direct effect flowing from directives.
However, when it comes to relationships between the state, and a private party, directives can produce vertical direct effect. At least when the EU provision is invoked by the private party as against the state. The ECJ has ruled that the member state, and thereby any public administration or undertaking should be precluded from benefiting from the fac that a member state itself has neglected to implement a directive correctly. This kind of reasoning stems from the so-called Estoppel principle, which prescribes that no one should be able to benefit from their own misconduct.
So, as you see, the combination of direct effect on the one hand and primacy on the other can be quite a force to be reckoned with.