EU law. Sabrina Kavanagh



How EU differs from standard intl law

public intl law

to know how the EU treaties are unique then you need to know how public intl law is different

usually yhere are two sources of intl law

treaties and

customary intl law – background norms. what states say and do to make law

states make steering decisions

customary intl law is about consensus

treaties are different – they are specific. they have particular remits

any famous treaty such as GATT, Kyoto, Vienna Conventio – treaty about treaties

because they are aimed to benefit states they are discretionary

treaties are optional

even if states sign up to them they make reservations

climate change treaty = they can sign up and then break it

what has EU done that is novel? Treaty of rome is a framework treaty. that is different from a public intl treaty which is specific

framework treaty is designed to provide and outline and to be fleshed out by ECJ

Rome has a general subject matter. gives an implication that if you sign you agree that it will evolve

once you introduce this element of case law

you open yourself to what court decides to do

ECJ takes a purposive approach. This is also called teleological approach. ECJ goes far beyond the purposive approach as would be used by a domestic court.


UK courts have changed modes of interpretation. started with literalism. then golden rule. then mischief rule. All gave more discretion to the court

many small decisions change the treaty so much.

EU introduced effet utile principle. Laws ought to have a useful effect.

another principle – direct applicability. This is the EU laws go directly into national law.

There is no further measure needed on the part of the member state

The United Kingdom has a complex system for doing this via the European Communities Act and national statutes which incorporate EU laws and treaties into UK domestic law

framework treaty

purposive approach to filling in the treaty

effet utile – case law

direct applicability =

this looks v different from treaties under public intl law

a new legal order has been created

member state legal traditions – it is drawn from legal traditions of member states


van Gend en Loos – economic subject. prohibiting a rise in tariff duties..

price of glue.

later cases in direct effect – move away from economic issues and into social issues

van Gend en Loos

this is first time we see tripartite structure

national govt

national court MAKES reference to the


national govts makes a reference. Germany, the Netherlands and Belgium

6 member states in ECJ.

Belgian govt argues that

national law ratifies the treaty. is this national law to prevail over another national law

the Belgian Govt argues that this should be a matter of national principle whatever the EU treaty whether it is the same or different

it does not matter to the Belgians . Even if the treaty has special significance it has been incorporated into national law therefore all we are talking about national laws

Belgian says this is up to Belgium to decide the hierarchy of national laws

principles are not developed in the abstract but by looking at real cases. makes law usable.

all governments are against the idea that individuals can rely on EU law in national courts

that would weaken nations


EU law cannot be effective if it has to enforce the law itself. It needs member states to co operate via their courts

a court can only deal with cases brought to it

makes it difficult to create a coherent eco system of laws

article 12 must be read as creating direct effect

”according to the spirit, the wording and the general spirit of the treaty.”

ECJ invented the notion that the treaty had a spirit. the court had a certain idea of Europe.


it does not define work conditions

the word principle is inherently unclear

apply the principle that men and women should receive equal pay for equal work

even if men and women get different amounts of money one can say that we believe in the principle but the outcome has not been reached




van Duyn relates to article 45.3

exceptions to free movement; public policy, public security and public health

conditions are imposed

ECJ says nonetheless the article has direct effect. these conditions are subject to judicial control



1973 – Rayner case

related to discrimination on the grounds of nationality

directive leaves discretion to member states the form and method for implementation

almost all treaty articles etc…have direct effect


the EU is a new legal order. It suffers from many problems that old intl law is. chief problem is lack of enforcement.

trying to transition to a system where there are laws that cannot be ignored.

If there is no direct effect than these laws are not applied in national courts

borrow from crime – offences against the person. primary statute 1861

overlaps and confusion. law has been built case by case

ECJ has a case come before it. It seeks to do justice. It can see a way of doing it. Case after case you end up in position where criteria have been eroded. No one provides and overall oversight

treaty articles directives and decisions have vertical and horiztonal direct effect. vertical against emanation of the state. Horizontal against individual

seen in Marshall v Southampton and South West Health Board

health authority required women to retire at 60. men at 65

national law was silent on the issue

under article 159 of EEC treaty. why directives are binding

”binding on member states to which they are addressed.”

directives will not satisfy the criterion that they need no further implementing measure

once time limit has passed for transposition of directive then the directive will be held to be valid

How is a directive different from a regulation once the time limit has passed?

We said that directives are directly effective because they are binding on member states to whom they are address

this is also true of decisions which bind those to whom they are addressed

this is also true of treaty articles


What is an emanation of the state?

Courts have sought to expand direct effect through a wide construction of an emanation of the state

incidental direct effect

indirect effect

v difficult if you think about all the things an emanation of the state has to cover

these would normally be thought to be part of the government – agencies that work f or the state

agencies that perform tests for disability benefits.

paperclips to staffing go to a private company

govt quangos. niche public bodies

a school is an emanation of the state

Foster v British Gas. Gender discrimination in working are. A private company was held to be an emanation of the state because it was a monopoly providing an essential service

ECJ decided that things are emanations of the state even though they are not the government

private mutli-national conglomerates are not susceptible to direct effect


CIA security. Belgian law that was not compatible with community law.

It was in breach of community law.

Belgian law was not valid

libel claim that they were bringing who said they were in breach of the law could succeed

vertical direct effect that was being applied

Belgian law made by Belgium has been knocked out of play

effect of this that in a case between two companies this claim succeeded where it otherwise would have failed


You are not bringing the directive in. It is not horizontal direct effect

what is in favour of incidental direct effect is it stop states relying on their wrongdoing

If a state fails to implement a directive then incidental direct effect hold the state to account and knocks out offending legislation

Unilever  SPA v Central Food SPA (2000) case – unjust to defendants

final argument against this as a principle is that it is another expansion of direct effect . A liberal interpretation of direct effect has eroded all limits


vertical direct effect is v wide now. there is a novel structure. has an effect in purely horizontal cases

von Colson – harmonious interpretation. it is required by article and by principle of effet utile. for community law to be effective harmonious interpretation is needed

indirect effect is v broad

it does not need any of the conditions in van Gend en Loos (does not need to be clear, precise or unconditional)

regardless of time laws were made or intent behind them – it still applies

national laws can be interpreted harmoniously with EU even if made before EU

von Colson – claim was vertical. an effective remedy was needed

the case that expanded this a lot was Marleasing

one of the most significant quotations – this must be done when there is any room for interpretation


Pfeieffer – a member state must do whatever lies in its jurisdiction having regard to the whole body of national law to ensure that directive is effective’

making decisions on factual scenarios is left ot national courts. ECJ will give an opinion and say that it thinks that a national law can be interpreted in line with EU law

it gives hints

there are few cases where it has accepted that national laws cannot be interpreted in line with EU law

wagner-myret – case where court that EU law and national law could not be interpreted at all

pupinot – is a case where same as below.

Koote –  is a good case for ECJ implying that national law can be interpreted in keeping with EU and laws given direct effect. implied how they wanted it to be done.

when can community law be used in national court

how is it used . how it interacts with national law

van Gend says states limited their sovereign rights. supremacy of EU

Costa v ENEL – EU supremacy. similar language to van Gend

law applies to nationals and member states. mentions limited fields where states had ceded sovereignty

drew on van Gend en Loos

Costa v ENEL

by contrast with other treaties the EU has created its own treaty. It became part of legal systems of member state. BY CREATIng a community of unlimited duration with its own legal capacity and more particularly real powers stemming from a limitation of sovereignty. Member states have limited their sovereign rights and created a body of law that binds their nationals and themselves. EU has capacity on intl plane.


integration into member states of laws. makes it impossible for states to accord precedence to a unilateral measure. national measures cannot be inconsistent with community law.

the application of the law cannot vary between member states without jeopardising effectiveness

legal system accepted by member states on the basis of reciprocity.

countries entered into a negotiation. they set up a relationship whereby their traditions would feed into the EU. EU law came back to nations

EU laws have greater power than domestic laws

there is an interesting article

McCormick – questioning sovereignty

sets out view of EU as a reciprocal interactive body

practical considerations

they feel they are in a strong position. supremacy like direct effect expands

next significant case International Handelsgesselchaft – EU law prevails over fundamental principles of national law

EU clashed with proportionality etc… core principles of German law. ECJ said Union law prevailed.

Germany ‘s constitutional court clashed with EU – v strong on respect for human dignity. treat people as ends not means. constitutional court is immutable

Germany fell out with ECJ there. Germany does not accept that community law is supreme over Grundgesetz.

all countries take up different issues with supremacy.

procedural expansions and practical expansion

simmenfell – ECJ held that all courts must set aside conflicting national law provisions – it did not have to get to court of last instance.

this is a huge departure. a court of first instance can strike down laws. This is a concern to civil law countries such as France

France’s concern with this was jurisdiction. it has administrative courts and ordinary court

highest admin court said they could not set aside French laws in favour of EU laws only constitutional court could

ordinary courts said they could set aide French laws

France has two highest courts. One said EU law was supreme. One said it was not

this is resolved. EU law is supreme but based on French constitution allowing this


Italian constitution permits limitations on sovereignty as are necessary to organisation permits peace and justice to nations

Italian court allows EU supremacy


Czech Rep – tedn to have gone the other way and resisted supremacy

courts are most puissant branch of govt and like to consolidate power

a lot of these countries are post communist and had little independence they are loath to give it up again


The UK – parliamentary sovereignty.

UK created a body that could stand up to the king and reflect popular will

difficult to accept that EU is supreme.

constitutional law – there is continuing and self embracing parliamentary sovereignty

because parliament adopted European Communities Act this means what EU does reflects the will of Parliament

later parliaments are bound by earlier decisions

Factortame – they set aside act where it clashed with community law

fauburn – said ECA was a constitutional statute

sets out conditions for relationship between citizen and states

enlarges or diminishes constitutional rights

it is defined as a constitutional act on the basis of its contnet

other constitutional acts – magna carta, bill of rights, reform act, act of Union

if EU measure is repugnant to key right then a question would arise whether the Euro communities act is sufficient

will of Parliament does not necessarily conflict with EU supremacy

in Germany ECJ has been taken on.

there may be fundamental principles in other constitutional law

the European Communities Act did not contemplate the abrogation of UK law

we still based supremacy of EU on parliamentary sovereignty in  HS 2 action plans case

there is a pattern.

the ECJ comes up with a novel concept in one case

it broadens it in more cases

state liability is set out in Francovich

broadened in brasserie du pecheur and factortame

direct effect


state liability is uniform remedy for breaches of EU law


slap on the wrist. builds on argument that member states should not rely on their own wrongdoing

the ECJ cited van Gend en Loos and Costa v ENEL to say that states are bound in principle

It IS ecj ‘S role to protect individuals

state liability applies especially to directive

s states have especial responsibility for this

Francovich we rely on effet utile. we rely on provision on treaty

altered in brasserie du pecheur

state liability relies on

the EEC can be held liable for breaches of its obligations

state liability arises from extending EU liability to member states

that is drawn from member states

rather than relying on provision of EC treaty

ECJ said to states we drew this line from your legal traditions

it is analogous to breaching one’s own obligations

brasserie du pecheur = it adapted conditions for state liability to apply

it applies where the directive or instrument was intended to confer rights on individuals, direct link between breach and damage – the damage must be serious

similar to van Gend


level of discretion is v similar to Costa

it builds on those two cases

.most cases come from 60s and 70s

the EU has expanded into social fields in Maastricht and Lisbon

national courts

wider range

HS2 case from 2007

the EU has more members. all of these provisions

the final question. why has the ECJ been able to do this?

some suggestions. based reasoning on traditions of member states

framework treaty

v broad ambit. difficult to argue against

EU expanding functions

she propagandises for the EU because people want it to do this







About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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