E.U. Law_Course 4_Principles of E.U.

Law
THE PRINCIPLES OF THE E.U. LAW
As we have already mentioned, the European Union Law must be conceived as an integral part of the
national legal systems of Member States. Therefore, the European Union Law is based on the following
principles:
1. the principle of the direct applicability of European Union Law;
2. the principle of the direct effect of European Union Law;
3. the principle of the primacy or the supremacy of European Union Law.
1. The direct applicability of European Union law
It means that the European Union legal rules are directly and automatically applicable within the
national legal systems of Member States. Therefore, the legal provisions of European Union Law take
effect in the legal systems of Member States as soon as they enter into force, without the need to be
incorporated in the national law by means of national normative acts. As a consequence, the national
courts of law are obliged to apply the European legal provisions within the internal legal order of
Member States.
Concerning the direct applicability and the method of incorporation of European provisions into the
national law, we should mention that there are two main approaches in the legal systems of Member
States, as follows:
a. the monist approach, which provides that any international Treaty takes effect in the national legal
system as soon as the treaty is ratified. This approach characterizes the national legal system of
several Member States, such as France, the Netherlands or Romania.
b. the dualist approach, which provides that any international Treaty can not take effect in the national
legal system until its incorporation by national legal provisions. This approach is to be found in
Germany, Italy, Belgium or the United Kingdom.
Despite these differences between Member States concerning the method of incorporation of
international legal provisions, the European Union Law provides the monist approach and therefore,
the European legal provisions become a part of the national law of all Member States as soon as they

enter into force. As stated by the Court of Justice, the European Union legal system can only be a
monist system in order to be compatible with the integration of Member States.
It means that the European Union legal rules are directly and automatically applicable within the
national legal systems of Member States. Therefore, the legal provisions of European Union Law take
effect in the legal systems of Member States as soon as they enter into force, without the need to be
incorporated in the national law by means of national normative acts. As a consequence, the national
courts of law are obliged to apply the European legal provisions within the internal legal order of
Member States.
2. The direct effect of the European Union Law
It means that its legal rules are able to confer directly rights on individuals in Member States which
may be invoked and on which individuals may rely before their national courts of law.
Concerning the direct effect of Community Law, it had been recognized for the first time by the Court
of Justice of the European Union in the Van Gend en Loos Case, Case no. 26/1962. Thus, the Court of
Justice had stated that the direct effect of community provisions derives from the specificity of the
new legal order created by the European Communities and the achievement of the European
integration requests and implies this character. Furthermore, the Court of Justice explained that the
treaties refer not only to Member States, but also to their citizens which may be affected by the
exercise of powers given to the European institutions.
Therefore, the European Union Law is intended to confer directly rights upon individuals and not only
when such rights are expressly granted by the treaties. The individual rights may also derive from the
obligations that the treaties impose upon individuals, as well as upon the Member States and the
institutions. These rights may be invoked by individuals before the national courts of law which are
obliged to protect them.
The direct effect of community law may be either vertical direct effect or horizontal direct effect.
Thus, when an obligation falls on a Member State itself, the legal provision that contains it may create
vertical direct effect, reflecting the relation between the individuals and the state. Such a provision
may only be enforced against the state and not against individuals. We should mention that certain
articles of the treaties, as well as several categories of community acts (for example, the directives
and the decisions addressed to the Member States) produce only vertical direct effects.
Horizontal direct effect arises where an obligation falls on individuals, reflecting the relations between
individuals. Therefore, such legal provisions may be invoked horizontally in the relations between
individuals.

We should mention that several categories of acts, such as the regulations or the decisions addressed
to individuals, as well as some articles of the Treaties, mainly those concerning the free competition,
the free movement of persons, the non-discrimination, the equality between men and women and so
on produce complete direct effects, meaning they may be invoked by individuals either vertically or
horizontally.
3. The supremacy of the European Union Law
It means that its legal rules prevail over all national provisions.
Thus, in order to give effect to the objectives of the European Union and to ensure that the European
Union Law is applied uniformly throughout the Member States, it is essential that the European Union
Law takes priority over national law. The accomplishment of the European integration between
different Member States would not be possible if European provisions could be subordinated to the
national laws of the different States.
However, this character of the European Union law is not provided by the treaties. Therefore, the
supremacy was developed firstly by the Court of Justice of the European Union in Costa v. ENEL Case,
Case no. 6/1964. The Court of Justice had stated that the European provisions would be devoid of any
meaning and efficiency if a Member State could unilaterally change their effects by means of national
legislative measures which could prevail over European Union Law. Therefore, it is impossible for the
Member States to give priority to a unilateral, subsequent national measure over the European Union
Law. The validity of the European Union Law can never be called into question by reference to national
law.
In addition, as stated by the Court of Justice in the Simmenthal SpA case, Case no. 106/1977, all
national courts of law are obliged to apply directly and immediately the legal provisions of European
Union Law, even if there is a conflicting national law in force. The national courts of law must not take
into consideration any national conflicting law which could impede the application of the European
Union Law.
1. Supremacy of Community Law
Supremacy of Community Law means that from the moment of passing it, it is directly and instant
applicable in Member States internal legal order and its application cannot be eliminated by national
rules.
This principle is not expressly provided by the treaties, but the relationship between Community and
national law was established in one of the earliest cases to come before the European Court of Justice.

In Costa v. ENEL (6/64) an action was brought in Italy against the nationalized National Electricity
Board (ENEL) over a bill of 1,950 lire which then amounted to less than 1. Mr. Costa claimed that he
was not obliged to pay the bill as the nationalization legislation had infringed Italian and E.C law. A
reference was made by the Italian court under Article 234 (177)
E.C The Italian Government argued that such a reference was absolutely inadmissible because the
national court had to apply national law.
The ECJ rejected that argument in a passage which has been repeated on many subsequent
occasions:
By contrast with ordinary international treaties, the EEC Treaty has created its own legal system
which became an integral part of the legal systems of the Member States and which their courts are
bound to apply.
By creating a Community of unlimited duration, having its own institutions, its own personality, its
own legal capacity and real powers stemming from a limitation of sovereignty or a transfer of powers
from the States to the Community, the Member States have limited their sovereign rights, although
within limited fields, and thus created a body of law which binds both their nationals and themselves.
It follows that the law stemming from the Treaty, an independent source of law, could not, because of
its special and original nature, be overridden by domestic legal provisions, however framed, without
being deprived of its character as Community law and without the legal basis of the Community itself
being called into question.
2. Community Law Prevails
Thus, on the basis of a case involving very little money the principle was established that where there
is conflict between Community law and national law it is Community law which is to prevail. If it was
otherwise the obligations under the Treaty could be called into question by any subsequent national
legislation the government of a Member State passed through its legislature. Costa v. ENEL (6/64)
developed this basic principle which had been set down in Van Genden Loos(22/62) one year earlier.
Although the treaties do not expressly mention the principle of supremacy, a number of provisions
require it. For the ECJ the position is unequivocal. By creating the Community the Member States
consented to transfer to it certain of their powers and to restrict their sovereign rights.
The ECJ case-law is directed at the national courts who apply the law in the cases which come before
them and apply effective remedies. Thus we have the statement in the Simmenthal 006/77) case that

the provisions of Community law are an integral part of, and take precedence in, the legal order
applicable in the territory of each of the Member States.
3. Direct Effect of Community Law
This important principle was created by the ECJ and follows on from the principle of supremacy of
Community law. It is a novel concept and can appear complex in the way it applies to particular
Community provisions.
If a legal provision is said to be directly effective, it means that it grants individual rights which must
be upheld by the national courts. There are two initial requirements which have to be satisfied as the
provision must be part of the legal order and its terms must be appropriate to confer rights on
individuals. There is thus a close link between supremacy of Community law and direct effect as they
both flow from the nature of the Community. In the important case of Van Genden Loos(22/62), Van
Gend imported chemicals from Germany.
In 1959 a Dutch law was passed which imposed a duty on some imported chemicals. This was
contrary to Article 25 (ex 12) E.C which required Member States to refrain from introducing new
duties or raising existing ones on imports between the States. Van Gend objected to paying the duty
and a reference was made under Article 234 (ex 177) E.C to the ECJ to ascertain whether the duty on
the chemicals was prohibited.
The conclusion reached by the ECJ was that: the Community constitutes a new legal order of
international law for the benefit of which the states have limited their sovereign rights, albeit within
limited fields, and the subject of which comprise not only the Member States but also their nationals.
Independently of the legislation of the Member States, Community law therefore not only imposes
obligations on individuals but is also intended to confer upon them rights which become part of their
legal heritage.
Direct Effect and Member States
The judgment in Van Gend was not the one which the Member States argued for. As far as they were
concerned if there was a breach of a Community obligation, the Treaty provided for action to be taken
by the Commission under Article 226 (ex 169) EC, or by another Member State under Article 227 (ex
170) E.C.
These procedures have the advantage for the Member State that they take a long time to come before
the ECJ and, until the Maastricht Treaty, did not carry any real sanction. The statements in Van
Gend, clearly giving the individual who is affected by Community law the equipment to take action in
his national courts, ensure that the Member States observe their obligations.

The Conditions for Direct Effect

The principle of direct effect is a very powerful one and the ECJ has taken the view that it has to be
limited by being interpreted restrictively. The judgment in Van Gend pointed out that Article 25 (ex
12) E.C. was ideally adapted to have direct effect on the legal relations between the Member States
and their subjects. The court did this by establishing what are now recognized as the conditions which
must apply if direct effect is to be enforced.
These are:
1. The provision must be clear and unambiguous;
2. It must be unconditional, and
3. Its operation must not be dependent on further action being taken by Community or national
authorities.
The principle of direct effect has been applied to all the legally binding sources of Community law.
Whether or not a provision has direct effect is a question of interpretation of Community law. In this
way the ECJ seeks to ensure uniformity throughout the Community.
Direct Effect of Treaty Provisions
The ECJ established in the Van Gend en Laos case that Treaty Articles which impose on Member States
an obligation to abstain from something, such as levying duties under Article 25 (ex 12) E.U., have
direct effect. In the Luetticke (57/65) case a preliminary reference was made asking if Article 90 (ex
95) E.C., which deals with taxation, had direct effect. The court used the familiar phrases when it
stated, The first paragraph of Article 90 (ex 95) E.C. contains a prohibition against discrimination,
constituting a clear and unconditional obligation. There being no discretion left to Member States, it
concluded that Article 90 (ex 95) E.C. produced direct effects and creates individual rights of which
national courts must take account. See also Defrenne v. Sabena (No.2) (43/75).