The nature of ec law: direct and indirect effect

One of the most noteworthy features of European Community law to date is the impact it is perceived to have had on the legal systems of the Member States. By way of contrast with other international organizations of States such as the Council of Europe or the United Nations, the European Community has developed into an organization of States with a relatively autonomous legal system, a system of norms which bind each of the States and which have been internalized—in many cases without national implementing measures—into the domestic systems of the different Slates as a fairly uniform body of law. Much of the development of the Community's legal system has been brought about not by the express agreement of the States which founded the Community nor by means of a detailed plan for an integrated legal system, but through the interpretive practice and influence of the European Court of Justice (ECJ). Through its case law, the Court developed a bold theory of the nature of EC law, attributing to it the characteristics and force which it considered necessary to underpin a set of profoundly altering and potentially far-reaching common goals within a group of politically and geographically distinct nations and historically sovereign States. The success of this development has depended upon a rather different approach from that which has governed the domestic treatment of norms of international law between States.

The domestic effect of an international agreement or treaty has traditionally been a matter to be determined in accordance with the constitutional law of each of the States which is party to that treaty. In countries like the UK which adopt a dualist approach to international law, international agreements and treaties do not of themselves give rise to rights or interests which citizens of the States which are signatories can plead and have enforced before their national courts. Even if they are designed for the protection of individuals (as, for example, in the case of the European Convention on Human Rights (ECHR)) the provisions of these treaties bind only the states at an intergovernmental level, and in the absence of implementation, cannot be directly domestically invoked or enforced by citizens.

It is apparent from arguments made in the early cases before the Court that at least some of the Member States did not envisage that the provisions of these Treaties would be any different, in terms of their domestic effect, from other international treaties and conventions. The ECJ, however, took a rather different approach to the nature and effect of the EC Treaties, an approach which was apparently based on the Court's vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the effective creation of such a Community would necessitate. This view became clear in its very early case law in which the Court outlined what has become known as the 'direct effect' of Community law.

'Indirect effect': development of the principle of interpretation

The way in which the Court of Justice appeared to encourage the application and effectiveness of directives, despite refusing to allow their direct horizontal enforcement, was by developing a principle requiring national law to be interpreted in the light of directives. By urging national courts to read domestic law in such a way as to conform to the provisions of directives, the Court attempted to ensure that directives would be given some effect despite the absence of proper domestic implementation.

In the Von Colson case (14/83) the ECJ ruled that

“…the Member States' obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfillment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive No 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of Article 189.

…

It is for the national court to interpret and apply the legislation adopted for the implementation of the directive in conformity with the requirements of Community law, in so far as it is given discretion to do so under national law.”

The Court here expressly identified the national courts as organs of the State which are responsible for the fulfillment of Community obligations. The judgment was significant from the point of view of enhancing the effectiveness of non-implemented or misimplemented directives. The German law had not provided for adequate sanctions when it implemented the Equal Treatment Directive, and although the defendant in this case was public employer so that there would not have been a problem of 'horizontal' effect, the remedial provisions of the Directive were insufficiently precise to give rise to a directly effective remedy. Consequently, the Court called on the national court to supplement the domestic legislature's task by reading the national legislation in conformity with the Directive's requirement to provide a real and effective remedy. Not only was this a useful way of enhancing the implementation of directives, but it was not subjected to the more restrictive conditions for direct effect, i.e. that the provisions in question must be clear, precise, unconditional, and require no further implementing measures.