Community law becomes part of national law through a number of mechanisms. In some legal systems, international treaties can become part of domestic law through a process of ratification. In other states, including Ireland international law does not become part of the domestic law until incorporated in by domestic legislation. It binds the state only until this is done.
The European Union treaties and the laws made thereunder have direct effect in all EU states. In some states, this necessitated adoption by parliament, as in the UK or a referendum as in the case of Ireland. In the case of the United Kingdom, Act of Parliament effectively declared the direct applicability of the treaties.
European Union law applies to the national legal system directly without implementation. Regulations automatically have the force of law. Directives by their terms require implementation, but this is a matter that derives from the use of the directive instrument, rather than a limitation of EU law. Directives have legal effect against states where they fail to implement them.
Implementation in the UK
In effect, the European Union has created its own legal system which applies directly. Direct applicability ensures the uniformity of Community law. In the United Kingdom, the European Communities Act 1972 incorporated direct applicability of European Union law.
“all such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression [F1 “enforceable EU right”]and similar expressions shall be read as referring to one to which this subsection applies.
Implementation in Ireland
The incorporation of EU law was effect by the Irish European Communities Act 1972 which declares that from the 1st day of January 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties.
This was facilitated by an amendment to the Constitution in Ireland that declared the treaty and measures adopted by the European Union (then the European Economic Community) to be binding and to form part of Irish law.
Regulations made by the European Union are of direct effect throughout the European Union. No implementing measures are necessary. The direct effect is confirmed and recognised by the treaty.
Regulations made by the European Union generally have direct effect. In some more unusual cases, depending on the terms and their interpretation, they may be addressed to the states be intended to have indirect effect only.
Doctrine of Supremacy
The European Union itself is a so-called monist jurisdiction. Its international agreements may themselves be relied on as part of European Union law without transposition into law in some cases. This is provided that they confer rights on individuals, are so intended and satisfy the above general criteria for direct effects. They must be clear, precise and are unconditional and by their terms confer such a right.
International treaties may confer direct rights on individuals if this is their intention. If a subsequent act is intended by way of implementation, there will not be direct effects. The direct effect must be consistent with the laws of the European Union as well as satisfying the general criteria on direct effect.
The European Union treaties do not expressly state that they overrule an inconsistent national law. However, this is clearly the intention in relation to the areas in which the European Union has competence. It was not desired to expressly provide for the supremacy of European Union Law in the treaties as this would have been (and remains) unacceptably federal for many states.
The European Union treaty contains its own legal system and rules. The Courts of Justice interpreted from the outset, that European Union law is unconditional and prevails over national law. This includes both the treaties themselves as well as directives, regulations and decisions, general principles of European law, including its fundamental rights, and international agreement with the third-party country.
The Courts found that the principle s necessarily followed from the direct applicability and effect of European Union measures. By conferring authorities on the institutions, the states have surrendered some of their sovereignty in the areas concerned. The principle of supremacy ensures uniformity in European Union law. Supremacy of European Union law prevails over all domestic laws, including domestic constitutional laws.
Supremacy prevails over existing and later national law. National law is deemed to be amended to the extent required to conform with European Community law. The principle of supremacy applies to all Community law whether or not it is directly effective.
National legislation must be interpreted in accordance with community law. The obligation to interpret national law in conformity with community law applies in so far as possible.
Direct Effect of Treaties
The EU Treaties themselves may have direct effect. In the famous case of Defrenne and Sabena, discrimination against air stewardesses was found to be in breach of the EEC Treaty itself. Article 141 prohibited discrimination between men and women. The prohibition on discrimination applied under the Treaty not only to the action of public authorities but also extended to all agreements which were intended to regulate paid labour.
Since the Defrenne case, several provisions of the Treaty have been held to have direct effect including in particular
- those based on anti-discrimination,
- the prohibition on customs duties and measures having an equivalent effect,
- the prohibitions on quantitative restrictions and measures having an equivalent effect,
- abolition of state monopolies,
- free movement of workers,
- right of establishment and right to provide services,
- the competition rules,
- prohibition of discriminatory taxation.
Other provisions of the treaty were held to have a direct vertical effect and proved binding on the states. Several other provisions have been held to be directly effective as the case law has evolved. The evolution of case law in itself in the area may allow increasing certainty so that previously insufficiently defined Articles which might not previously have been held to have a direct effect, might later be so held.
Directives do not take direct effect. However, where they are not enacted, they may be directly effective provided they are sufficiently certain. In the first instance, directives are addressed to the states themselves. They oblige the state to translate and put into effect, the terms of the directive in domestic law. To some extent accordingly, directives are directly effective.
Directives enter into force on the date of notification, there is invariably to give effect to them by the date specified. There was generally a period in which they must be transposed into law so as to be effective by the stipulated latest date. It becomes effective; it may become directly legally effective on the expiry of the implementation period.
The courts have held that states have an obligation to refrain from adopting measures which are likely to compromise the objective required by the directive even during the implementation period.
States may adopt measures compatible with older directives provided they do not undermine the achievement of that on the newer directive. During this period, they may also adopt measures which are incompatible with older directives but are compatible with the requirements of the new directive.
It is not clear if individuals can rely on directives in the above sense before the end of the transposition period. States have a standstill obligation. There may be a legitimate expectation that this will be adhered to, which may create rights in favour of individuals.
Directives and Direct Effect
The European Court of Justice (now the Court of Justice of the European Union) held in a very early and famous ruling, that a directive could become immediately effective, creating rights in favour of private persons and member states provided that the relevant provision was sufficiently clear, precise and unconditional so that it was capable of judicial application without the need for adoption or further implementing measures at national law or community level. In this context, it may create direct rights.
Even if a directive lacks the requisite clarity or precision, this does not prevent it from producing direct effect. The provisions may be clarified or more precisely defined by a means of interpretation of a judge in a member state or at EU level. A condition attached which suspends application does not prevent direct effect. It delays it until the condition is satisfied or the relevant time limit expires.
A provision is not conditional even if implementing measures are required on the part of the state if there is no discretion on the states’ part or the part of the EC in relation to those measures.
A provision is said to have vertical direct effects when an individual whether a company or a person can rely on it in proceedings against the state. A provision is said to have horizontal effect when it can be relied on in proceedings against other private persons (non-state). A provision may be having vertical effects only or may have a vertical and horizontal effect.
Where states fail to implement the terms of directives on time, nationals may nonetheless rely on them in court if they fulfil the above criteria. If directives had not been accurately implemented correctly, individuals may rely on the directive to some extent, in national courts. A state which has failed to translate the directive into law cannot rely on it against its citizens in proceedings. A directive (by itself) cannot form the basis of a criminal prosecution against citizens, nor can it impose obligations on them which carry criminal liability for breach.
Directives by their terms may have direct vertical effect only. In this case and at the pre-implementation stage, they may only be relied on against the state.
An individual may take proceedings against the state for damages resulting from non-implementation or the correct implementation of the directive in so far as it concerns his rights This mitigates some of the lack of direct effects as regards non-state third parties.
The vertical effects principle allow the individual to enforce against the state and its “emanations”. The European Courts have extended the state to include a wide range of public and private bodies under its umbrella. It includes any bodies whatever their form which have been made responsible pursuant to a measure adopted by a public authority for providing a public service under the control of that authority and has for that purpose special powers beyond those arising in normal rules applicable in relationships between individuals. Public bodies have been held by the European courts of Justice to include companies with public responsibility under a license or concession from the state.
Interpretation to Conform with EU Law
EU states and their courts are obliged to interpret the national law so that conforms with EU law. National judges are obliged to interpret national law in accordance with the European Union.
This follows the principle of supremacy which is set out in other chapters. This will apply to unimplemented or mis-implemented directives.
The European courts have gone so far as to hold that this obligation and duty on national judges extends not only to the national law which implements EU law but to all law. States are obliged to interpret national law in conformity with EU law including unimplemented directives in so far as possible. National Courts were obliged to implement the objective of the directive and interpret it notwithstanding that it is incompatible with existing law.
The duty applies only in so far as is possible to so interpret. The duty applies at the end of the transposition period. If a provision cannot be stretched by interpretation the principle will not apply.
Even if a directive is not directly effective, individuals may rely on it in challenges as to whether national legislation has kept within the limits of the directive and the discretion allowed under it.
A decision is a not a legislative instrument of the European Union. It creates rights and obligations only between the addressee and the state. In some cases, it may confer rights on the third party. There may be a decision addressed to a member state. It may in certain circumstances create vertical effects on which third parties may rely.