EU Legal System for Coordinating European Projects

The EU
legal system and its law is an appropriate method of coordinating a European
project of peaceful cooperation. Critically discuss.

Introduction

Supremacy through
direct effect of European Union law over member states national law is essential
for coordinating a European project of peaceful cooperation. The restriction on
member states sovereignty is established in the Treaty of Rome 1957[1], known as the European
Economic Community Treaty. By singing the 1957 Treaty member states voluntarily
transfer sovereignty over to the EU, this is then cemented in European Case
law. Enforcing European Community law is provided by the European Court of
Justice outlined in Article 17(1)[2] of the Treaty on the
European Union, this provides certainty around EC law especially regarding the
four freedoms within the EU. Direct effect of EU law through regulations and
directives is crucial to allowing the ECJ and promoting fair treatment among member
states. Does applying and enforcing universal law through direct effect to 28
countries create a more cohesive EU? For the purposes of this paper peaceful
cooperation is defined as the fluidity throughout the four freedoms without
causing serious political tension, such as trade embargos.

Establishing
European Supremacy

Supremacy
arises in a variety of forms throughout European Treaties and Case law. The
treaty of Rome 1957 (TOR 1957), under ‘Common Market’ state ‘…signatory
countries agree to gradually align their economic policies;’[3]  This was the first instance where a state
voluntarily signed a treaty reducing their sovereignty for the benefit of the
community. Thus, the creation of directives held within European Community law;
Article 249 states that regulations are ‘binding in its entirety and directly
applicable to all member states…’[4] In essence, any
regulations or directives set forth by the EU will have a direct binding effect
on the member states. This in turn creates standing for the EU to co-ordinate
fair cooperation and a levelled playing field among member states. Furthermore,
Article 242 states that the European Court of Justice (ECJ) can consider the
circumstances and ‘order that application of the contested act be suspended.’[5] This means the ECJ has the
power to suspend national law which conflicts with EU law. Therefore, by signing
the TOR 1957 member states effectively transfer some of their sovereign rights
over to the community.

Foundation
of the European Court of Justice supremacy over national law is established in
the case of Van Gend en Loos (Case 26/62).[6] In this case chemicals
were being transported from west Germany to the Netherlands to which the
Netherland authorities charged a tariff on the import. The question in this
case is whether Article 12 of the EEC (now Article 30 of the TFEU) to impose
duties on imports has direct application. Article 12 was upheld to which the
court stated ‘The European Economic Community Constitutes a new legal order of
international law for the benefit of which the states have limited their
sovereign rights…’[7]
A true turning point for EU authority which lead to the advancement in the case
of Costa v Enel (Case 6/64).[8] In this case Costa
protested the nationalisation of electricity in Italy, stating that
nationalisation  of the industry would
violate the TOR 1957, now EEC Treaty, Article 37 ‘elimination of monopolies of
commercial character…’[9] The outcome of this case
had marginally solidified the power of the EU, by the EEC creating its own
legal system and by doing so created

‘…real powers stemming from a
limitation of sovereignty or a transfer of power from the state to the
community, the member states have limited their sovereign rights and have thus
created a body of law which minds both nationals and themselves.’[10]

This case
clearly established the supremacy of EU law over citizens and the states
themselves. Which in turn contributed to the solidification of EU law over
national law. Since Enel the EU accumulated more power through case like Simmenthal (No.2) (Case 106/77).[11] This case established
that domestic law conflicting directly with EU law, domestic law should be set
aside automatically without an ECJ judgment.[12] The judgment goes on to
state that national courts must apply Union law in its entirety and protect
rights which confer on individuals.[13]  Furthermore, the strength of EU law reaches
into domestic law which is not necessarily in practice anymore, for example the
case of Commission v France.[14] In this case Article 3 of
the French Customs Code states that a ‘certain portion of the crew of the
ship…must be of French nationals.’ [15] Article 3 was no longer
in effect, but the rule was still in breach of article 39 of the EEC of freedom
of movement of workers.[16] Lastly, another landmark
case establishing direct effect of regulations on member states is established
in the case of Factortame (No.2)[1991]
(Case C-213/89 )[17], in this case the UK
implemented restrictions on registration of vessels in UK waters through the
Merchant shipping Act 1988.[18] The restrictions
prevented Spanish fishermen from registering as UK vessels breaching the TOR
1957 and ultimately Directives 92/51/EEC ‘…obstacles of freedom of movement for
persons and services…’.[19] It was held that EU law
trumps domestic law. Although, on the face of it, EU regulation of member
states seems to cause tension, but it truly prevents unfairness which could
lead to violent outbreaks. Having fair trade and playing by the same rules
decreases the chances of member states abusing their power towards weaker
countries and ultimately allowing the European citizens to benefit from less
inflated pricing. Yet, British fisherman were not entirely satisfied with the
outcome of the case, but it is a small price to pay to be a part of the single
biggest market in the world. Having free access to the market allows for
greater trade potential. Nevertheless, establishing supremacy over 28 member
states provides solid foundation to implement regulations and directives to
reduce conflict and increase fair trade between member states.

European
Court of Justice Enforcing Union Law Increases Peaceful Cooperation

Supremacy
of EU law creates peaceful trade among member states. The EU inherently comes
with benefits of freedom of movement of goods, services, people, and capital,[20] in turn these benefits produce
economic advantages.[21] These freedoms are guided,
enforced and upheld by the ECJ and Court of Justice of the European Union
(CJEU) from powers provided by the Article 19(1) of the Lisbon Treaty 2007
(TEU).[22] This is done by enforcing
regulations imposed on member states regarding the common market, to ensure member
states can cooperate fairly and on even terms. Europe in turn, can reasonably
argue that imposing restrictions can reduce tension between member states. This
reduces the chance of member states taking advantage of other weaker states for
example imposing tariffs on imported goods. In the key case of Cassis de Dijon (Case 120/78) [23], it solidified the policy
of freedom of goods. Cassis established that member states must respect the
trade rule set in Article 207(1) TFEU.[24]This means that other
states cannot seek to impose their own rules on goods that are represented,
thus this case was ground-breaking towards the regulation of the single market.
Similar cases soon after were brought to attention via the commission, cases like Denmark (Danish bottle) [1988] (Case
302/86) [25].
This case further established the rule in Cassis which sought to protect the
public health, the fairness of commercial transactions, and the defence of
consumers. Enforcing regulations and directives prevent financial
discrimination among member states highlighted in the Ireland (excise Payment) [1980] (Case 249/81) [26] case, where Ireland
allowed for beer, wine, and spirits to defer tax payments when the beverages were
being manufactured but imposed instant tax payments on imported goods. Both
resulted in equal amounts of tax collected although the collection scheme was
discriminatory and breached Article 110 TFEU. [27]  Another case that established the fairness of
trade among member states is the case of Nold
[1974] (Case 4-73).[28]
In this case a coal wholesales man was seeking the annulment of a commission
decision which placed restrictive criteria on coal supply. Nold claimed the
commission was acting discriminatory, the case was dismissed on the grounds
that Nold was not suffering from the decision of the commission but rather the
economic recession.[29] Another example of the ECJ
focusing on the economic standing of a case is in the case of Grogan.[30] The case surrounds the
problem of Grogan passing out leaflets regarding abortion clinics in Britain. The
Irish high court granted an injunction to prevent the leaflets from being
distributed. On appeal Grogan went straight to the ECJ to request advice on
whether abortion service falls under Article 59 TOR 1957.[31] The interesting part of
this case is that the Advocate General decided that the info ban was
unjustified as it was in the public interest. The ECJ also came to the same
decision, although they decided that the information is ‘…independent of
economic activity carried on by clinics established in another member state.’[32] Therefore the case does
not fall within the scope of the EC law. Though this case is not based on
trade, clear indication of economic interest was present in the ECJ’s decision.

On the
other hand, the evolution of the EU has progressed in social fairness among
member states. Stated in the Grogan case above, the ECJ judgment felt that a
social matter was void of ‘economic activity’ and not fall within the scope of
the EU law. This is not the standard held in a more recent case of Defrenne v Sebena [1976] (Case 43/75).[33] This case concerned woman’s
rights to equal pay. During this period human rights were still in development
through EC law, where the TOR 1957 did not mention these fundamental rights. As
well as, numerous attempts by the European Parliament to add human rights to
the Maastricht treaty it was only reduced to a single article declaring that
‘The union shall respect fundamental rights…’[34] referring to the case of Sebena case the courts emphasised the
need for horizontal and vertical direct effect of Treaty provisions. This case
strengthened citizens rights by allowing them to enforce rights on private
parties Article 119 TFEU. Allowing the ECJ to enforce fundamental rights such
as ‘equal pay’ provides citizen security throughout member states by taking
action through the EU when their own government does not act. Equal pay is a
positive aspect because it’s morally right and it provides good feedback
towards politicians which in turn helps politicians make better future
decisions of where their society is heading to best accommodate their citizens
and as well as collect date and push towards a better Europe.

Does
imposing direct effect create a cohesive union?

Direct
effect is an important principle in EU law as it allows the Union to implement
Regulations and Directives enshrined under Article 288 TFEU which is binding on
the country or countries imposed on. This power is given through the case Van Gend en Loos. This in turn gives the
right to directly invoke European acts before national courts.[35]There are two effects,
horizontal and vertical effect. Vertical effect allows individuals to invoke a
European provision in relation to the country.[36] Horizontal effect is in
relation to individuals, which means one individual can invoke a provision on
another.[37]
This is established in the case of Antonio Munoz, which allows regulations both
horizontal and vertical effect. Evolving the power and influence of
regulations. Sophie Oliver-Robinson argues the evolution of EU law outdates the
case of Van Gend Loose and as such we
should not ‘cling too rigidly to its doctrine, in trying to address the new
challenges that the evolution of EU law has created.’[38] She further argues that
EU law should yield to national law when confronted with resisting substance of
national law. [39]
Advancements of Direct effect can be proven by the case of Foster v British Gas
1990[40], it was held in this case
that vertical effect was also available against organisations, organisations
governed by state authority. On the other hand, Andre Nollkaemper argues that
direct effect can ‘function as a powerful sword that can pierce the boundary of
the national legal order and protect individual rights where national law
fails.’[41] He goes on to argue that
locking in international rights will enable European courts to protect them
especially during the transition from an authoritarian to a rule of law based
legal system.[42]
Which means direct effect cements particular rights and safeguards against
authoritarian rule[43] as depicted during
1940’s. This is especially important because on one hand Sophie argues we must
move away from the VGL case and Nolkaemper argues that the direct effect is
essential for securing individual rights. The reason direct effect was created
is to give the EU power to change law, law which contradicts the peaceful
nature of the EU. It is meant to benefit the individuals who reside under EU
law, not hinder them. Allowing the ECJ to apply direct effect allows for the
individuals and corporations unjustly treated to voice their complaint to a governing
body that can make a difference and has their best interest in mind. Thus,
conflicts arising through member state transactions or interstate transactions
can settle dispute in a nonviolent manor reducing political tension between
citizens and state and between member state to member state. As the ECJ acts as
a referee to eliminate any problems that may arise.

Conclusion

In conclusion, establishing the foundation of European Supremacy over member states creates opportunity to alter questionable national law. The Treaty of Rome 1957 was the first leap in European history to allow countries to voluntarily transfer sovereignty over to the European Community for the benefit of advancing the community as a whole. This prevented national law that can cause political tension between member states and reduce the effectiveness of the four freedoms. Enshrined in the European Community Article 249 gives the commission the ability to bind member states to regulations and directives. This is fundamental to the ECJ and CJEU European process of organising and upholding the four freedoms between member states. Cases such as Van Gen den Loos, cements the EU’s power to act on incompatible national law and provides evidence of a country taking advantage of the trade agreement within the EU by applying extra tariffs on imports. The ECJ enforcing EU law supports the idea of safety and certainty between member states. Providing a governing body to oversee the four freedoms allows the ECJ to enforce directives which promote the peaceful cooperation between member states rather than allowing national law to cause conflict by charging tariffs, excessive taxing, monopolising electricity, all actions that cause tension between member states. All of this cannot be accomplished with limited power of the EU, the governing body of EU would not be able to implement Regulations nor directives to change bad policies in European countries which can hinder the peaceful cooperation between member states. Thus, supremacy using direct effect at this moment in time is the only acceptable solution to creating peaceful cooperation throughout the European Union.  

EU Cases

• Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 00629.
• Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 00649.
• Case 249/81 Commission of the European Communities v Ireland [1982] ECR- 04005
• Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ESE-00001.
• Case 302/86 Commission of the European Communities v Kingdom of Denmark [1988] ECR – 04607.
• Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities [1974] ECR- 00491, Para 10.
• Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena [1976] ECR-00455
• Case 6/64 Flaminio Costa v E.N.E.L [1964] ESE- 00585.
• Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26
• Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen Grogan and others [1991] ECR I-04685, Para 26.
• Case C-188/89 A. Foster and others v British Gas plc. [1990] ECR I-03313.
• Case C-213/89 The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1990] ECR 1-02433.
• Case C-334/94 Commission of the European Communities v French Republic [1996] ECR 1-01307.

UK Statute

• Merchant shipping Act [1988].

EU Legislation

• Council Directive 92/51/EEC Professional Education and Training to Supplement Directive 89.48 EEC, (1)
• Consolidated version of the Treaty of the European Union [2012] OJ C 326, Article 17 (1).
• Consolidated version of the Treaty on the Functioning of the European Union [2012], Article 110
• Consolidated version of the Treaty establishing the European Community [2002] OJ C 325, Article 249 [3].
• The Lisbon Treaty [2007], Article 19(1).
• The Lisbon Treaty [2007], Article 207 (1).
• Treaty establishing the European Community (Nice Consolidated version)[2002] C-325, Article 39.
• Treaty of Rome [1975].
• Treaty of Rome [1975].
• Treaty of Rome 1957, Article 3 (c).
• Treaty of Rome 1957, Article 59.
• Treaty on European Union [1992],  Section F (2).

Books

• Schmidt, Susanne K, Only an Agenda Setter?: The European Commission’s Power over the Council of Ministers European Union Politics (2000), 1 EUP 37.
• Staab, Andreas, The European Union Explained, Indiana University Press (2013), Chapter 7.
• Switzer, Stephanie, European law Essentials, Edinburgh University Press (2009), Chapter 6.

Online Journal

• Sophie Robin-oliver, ‘The evolution of direct effect in the EU: Stocktaking, problems, projections’ (2014) International journal of Constitutional law, Vol 12, Issue 1 < https://academic.oup.com/icon/article/12/1/165/628620 > Accessed 10 December 2019, Page 2, para 4.
• ‘The Direct Effect of European Union law’ (EU-Lex, 14 January 2015) < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14547 > accessed  10 December 2019.

[1] Treaty of Rome [1975].

[2] Consolidated version of the Treaty
of the European Union [2012] OJ C 326, Article 17 (1).

[3] Treaty of Rome [1975].

[4] Consolidated version of the Treaty
establishing the European Community [2002] OJ C 325, Article 249 [3].

[5] Ibid, Article 242.

[6] Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v
Netherlands Inland Revenue Administration [1963] ESE-00001.

[7] 
Ibid, Para [3].

[8]  Case 6/64
Flaminio Costa v E.N.E.L [1964] ESE- 00585.

[9] Ibid, Para 10.

[10] Ibid, Para 3, sub para 2

[11] Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978]
ECR 00629. 

[12] Ibid, Para 24.

[13] Ibid, Para 21

[14] Case C-334/94 Commission of the European Communities v French Republic [1996] ECR
1-01307.

[15] 
Ibid, Para 27.

[16] Treaty establishing the European
Community (Nice Consolidated version)[2002] C-325, Article 39.

[17] Case
C-213/89 The Queen v Secretary of
State for Transport, ex parte: Factortame Ltd and others [1990] ECR 1-02433.

[18] Merchant shipping Act 1988.

[19] Council Directive 92/51/EEC
Professional Education and Training to Supplement Directive 89.48 EEC, (1)

[20] Treaty of Rome 1957, Article 3 (c).

[21] Ibid, Article 2.

[22] The Lisbon Treaty [2007], Article
19(1).

[23] Case
120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für
Branntwein [1979]
ECR 00649.

[24] The Lisbon Treaty [2007], Article
207 (1).

[25] Case 302/86 Commission of the European Communities v Kingdom of Denmark [1988]
ECR – 04607.

[26] Case 249/81 Commission of the European Communities v Ireland [1982] ECR- 04005

[27] Consolidated version of the Treaty
on the Functioning of the European Union [2012], Article 110

[28] Case 4-73 J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European
Communities [1974] ECR- 00491

[29] Ibid, Para 10.

[30] Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen
Grogan and others [1991] ECR I-04685, Para 26

[31] Treaty of Rome 1957, Article 59.

[32] Case C-159/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen
Grogan and others [1991] ECR I-04685, Para 26.

[33] Case 43/75 Gabrielle Defrenne v Société anonyme belge de navigation aérienne
Sabena [1976] ECR-00455

[34] Treaty on European Union [1992], 
Section F (2).

[35] ‘The Direct Effect of European
Union law’ (EU-Lex, 14 January 2015) < https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al14547 > accessed  10 December 2019.

[36] Ibid, Page 1

[37] Ibid, Page 1

[38] 
Sophie Robin-oliver, ‘The evolution of direct effect in the EU:
Stocktaking, problems, projections’ (2014) International journal of
Constitutional law, Vol 12, Issue 1 < https://academic.oup.com/icon/article/12/1/165/628620 > Accessed 10 December 2019, Page
2, para 4.

[39] Ibid, Page 23, Para 1.

[40] Case C-188/89 A. Foster and others v British Gas plc. [1990] ECR I-03313.

[41] Andre Nollkaemper, ‘The Duality of
Direct Effect of International law’ (2014) European Journal of Internation law,
Vol 25, Issue 1 < https://academic.oup.com/ejil/article/25/1/105/497370 > accessed 10 December 2019, Page
4.

[42] Ibid, Page 9.

[43] Ibid, Page 9.