Direct Effect and the Nature of EU Law
June 1, 2020
During last the last years I’ve been working on a relevant question for the European Union and the connections with the member States: what is direct effect of EU law and what are its core elements, today? Is direct effect still a useful doctrine of EU law aimed at governing the relationships between the European legal order and domestic legal orders?
To answer such queries, the book will shed light on the controversial aspects of the EU core principle of direct effect. A primus inter pares principle that, since its introduction, has undergone a process of consolidation and evolution thanks to the efforts of the Court of Justice of the EU (CJEU). Indeed, the doctrine of direct effect is at the root of the EU legal order. Thus, writing about direct effect means investigating the fundamental essence and nature of EU law. It means reconstructing the theoretical foundations of a principle that stands out among the other constitutional principles of Union law due to its impact on the level, scope and extent of the protection of rights created by primary and secondary EU law in favour of individuals.
The wider context is the interplay between the EU legal order and the domestic legal orders of the Member States, keeping in mind that the process of European integration has its raison d’être in direct effect. Indeed, the doctrine of direct effect places individuals, and their rights, at the centre of the Treaties. In this sense, it determines the autonomy of a legal order that, although originating in international law, has distanced itself from the latter in its own constitutive pillars.
The originality of EU law lies precisely in its vocation to affect the legal position of individuals who directly enjoy rights arising from the obligations imposed on Member States by EU law. This is also the beauty of the EU. A beauty that shall be preserved and reaffirmed especially in a time like ours, when new forms of populism, sovereigntism and anti-Europeanism are on the rise.
In this framework, it is indispensable that the CJEU comes to reassert its constitutional role and establish the ‘common core’ of the European system, starting from the principle that created and shaped it, i.e. direct effect.
In the landmark Van Gend & Loos ruling of 1963, the reasoning of the Court was inspired by «une certaine idée d’Europe» (Pescatore) rather than by strictly technical arguments on points of law. The Court’s decision to interpret EU law in the sense of conferring rights on individuals was ultimately a political choice. The Court took on the role of a political actor. Rather than embracing judicial activism, it did what judicial power in its deepest meaning leads all judges to do: «giving individuals access to the law». However, in order for an integrated and superordinate system of rights to be strengthened, it is vital that the Court that established that system, rather than simply acting as a «bouche qui pronunce les paroles de la loi» (Montesquieu), performs a policy making function, embodying, on the juridical level, a certain idea of law, economics and politics. In this light, clarifying and rethinking direct effect – which means providing sound interpretive criteria, ensuring legal certainty and extending the individual guarantees connected with it – is one of the greatest challenges that the Court of Justice has ever faced.
In this light, the jurisprudence of the CJEU does not seem to provide sufficient legal certainty as to the content, scope, limits, and consequences of direct effect. It is often vague and unpredictable. Furthermore, it is often inconsistent and too minimalist; this form of judicial self-restraint is as problematic as judicial activism or, to use Cappelletti’s expression, «law-making judges». When fundamental principles are at stake, judges should use their best efforts to understand legal institutions and establish the relevant/applicable legal framework, to fill any gaps that may arise and avoid the risk of inconsistencies. Moreover, ‘argumentative minimalism’ and lack of clarity, in particular with regard to the constitutional principles of EU law, run the risk of undermining the spirit and purpose of the process of European integration.
In light of the above, through a critical appraisal of the most recent CJEU case law, my proposal for a comprehensive and original understanding of direct effect is the following one.
First, the direct effect of an EU law provision shall be asserted only when it is directly applicable due to its unconditional character and when its application creates an interest for the individual. Where the provision requires a further act of transposition, there is no direct effect. Where there isn’t such an interest, there is no direct effect. Only the principle of primacy shall step in. This reconstruction entails one main advantage and one main consequence. The advantage is that direct effect cannot be put into action solely against the individuals, as it happened in a number of rulings delivered by the CJEU, including in the famous Taricco saga. The consequence is that national jurisdictions will not have to immediately disapply domestic provisions that are inconsistent with EU law. My belief is that, so defined, direct effect could serve as the best tool to ensure the fair balance between domestic sovereignty and European supranationalism.
Second, direct effect shall not be neither rejected per se nor regarded as a (short-lived) infant disease of EU law, i.e., something that, originally conceived as the normal state of health of the law, was supposed to spur the process of integration, immunize the EU legal order against future challenges, and then quietly disappear. On the contrary, direct effect ensures that the principles of the attribution of powers between the Member States and the EU, of subsidiarity and of loyal cooperation are not called into question by a generalized, unrestrained use of the principle of primacy or by the resulting disapplication of national law. Direct effect is a nexus, a synthesis between different legal traditions. It is a symptom and instrument of integration, a compass that helps the interpreters of the law to find their way among an indefinite, intricate cabala of varying categories of substantive and procedural law. Direct effect, ultimately, continues to be a fundamental principle, an essential doctrine capable of shaping in quasi-federalist terms a legal order that, albeit juridically mature and unique in its kind, is not a federal union.
This research is forthcoming as Direct Effect and the Nature of EU Law, Oxford University Press