The Sovereignty of the European Court of Justice and the EU's Supranational Legal System

As can be understood through these legal materials and the case law of the ECJ, the doctrine of supremacy could be recognised as one of the cornerstones of the ECJ in the establishment of the supranational legal system. Nonetheless, its contribution may be better understood after examining the doctrine of direct effect and the contemporary case law of the ECJ. Hence, all of these issues are scrutinised in the next section.

Direct Effect as another Keystone of the ECJ

Community law has been considered as a source of national law through the function of the doctrine of direct effect, therefore, this doctrine could also be recognised as one of the cornerstones of the ECJ in the establishment of the supranational legal system. The broader definition of this doctrine, which is recognised as the objective direct effect, implies that the provisions of EU law have a capacity to be invoked before a domestic court. The narrower definition of this doctrine, which is recognised as the subjective direct effect, connotes that the provisions of EU law have a capacity to confer rights on individuals which they might enforce before national courts.22

After establishing the doctrine, the next duty of the ECJ was to expand the doctrine. Therefore, the ECJ expounded new issues within the context of the direct effect of directives in particular such as horizontal direct effect, vertical direct effect, and indirect effect. It might be noteworthy in this sense that the purpose of the ECJ was generally to improve the power of the doctrine. To clarify, firstly, when the doctrine was adopted in Van Gen en Loos, the directives had to meet some conditions in order to have direct effect. However, the ECJ stated in Van Colson that the directives did not need to meet any conditions because they could be capable of indirect effect.

In addition, the ECJ stated in Van Duyn that directives were only capable of direct effect when the deadline for national implementation was passed. Moreover, the ECJ stated in Marshall that directives was capable of vertical direct effect, which implied that the direct effect of the directives could only be pleaded against a state or the entities of the state, not pleaded against a private party. Meanwhile, the ECJ explained which entities could be recognised as state entities, in its Foster judgment. According to this judgment, if a body has a responsibility for providing a public service under the governance of the state, this body could be recognised as an entity of the state. Finally, the ECJ held in Marleasing that even though the Member State had not implemented a directive, the national court had to interpret national law under the light of the directive. The dispute of this case was between two private parties, therefore, this case also concerned the horizontal direct effect of the directives.23

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In the contemporary case law of the ECJ, the ECJ has also been inclined to improve the power of the doctrine. In this sense, the ECJ declared in Marks & Spencer24 that the national courts shall have applied the directives in practice, as well as, implementing them into national law. The ECJ also stated in Muñoz25 that the regulations of EU law were capable of conferring rights on individuals if a domestic court had a duty to protect those rights. Viking26 was also another evidence in this regard.

In this case, the dispute arose between Viking land, a shipping company, and a trade union, and the dispute was concerned with rates of pay. The trade union aimed to prevent Viking land from shifting its legal base to Estonia, because this would lead to lower rates of pay for seamen. Viking land argued in this respect that the labour action of the trade union infringed the provisions of the EU Treaty on freedom of establishment. The ECJ held in this case that the provisions were capable of direct effect, therefore, the action of the trade union was illegal.

The ECJ has also promoted the protection of human rights in its individual-based supranational legal system, through the doctrine of direct effect. To clarify, Article 2 TEU, and Article 6 (3) TEU generally states that human rights shall constitute general principles of EU law. Article 2 TEU underlines the respect for equality, freedom, democracy, human dignity, the rule of law in particular. In addition, Directive 2000/7827 lays down a general framework to combat discrimination in the field of employment. The ECJ interprets these legal materials in its case law by applying the doctrine of direct effect.

In Mangold,28 the dispute was about discrimination on grounds of age. The ECJ held in this case that Directive 2000/78 constituted a general framework for combating discrimination, and Article 6 (1) of the Directive imposed a duty on the Member States to guarantee the full effectiveness of the general principles, therefore, it was capable of horizontal direct effect. The national court must interpret national rules under the light of the Directive and the court must also set aside any provision of the domestic law that may be inconsistent with the Directive, in this context.

Furthermore, the ECJ acknowledged its Mangold ruling in Kücükdeveci.29 In more detail, the ECJ held in Kücükdeveci that the national court had two responsibilities: (a) ensuring the legal protection of the provisions of EU law which confers rights on individuals; (b) setting aside any national provision that may be incompatible with the general principles of EU law.

The general principles of EU law indeed purport to protect private individuals against public authorities. Mangold and Kücükdeveci demonstrate in this respect that the general principles of EU law are capable of horizontal direct effect. This allows the ECJ to interpret EU law in accordance with the interests of individuals rather than the preferences of member-state governments. Hence, the contemporary case law of the ECJ also encourages the ECJ to support the individual-based supranational legal system in the EU.

Conclusion

This analysis demonstrates that Sweet and Brunnell’s analysis can be viewed as an admissible assertion and an accurate reflection of the contemporary decision-making process of the ECJ. In so doing, firstly European legal integration and the preliminary ruling system were examined and then two doctrines of the ECJ, namely the doctrines of direct effect and supremacy, were analysed.

As a consequence, this analysis concludes that the rule of law means not only the respect of legal obligations, but that it should also be viewed law as part of the political processes and may therefore shape and constrain political decision-making. Generally ignoring the preferences of member-state governments within the context of the contemporary decision-making of the ECJ is therefore an accurate reflection by the ECJ. This reflection is acknowledged by the individual-based supranational legal system of the EU.

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References

Cases

Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I-7289

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Case C-438/05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OU Viking Line Eesti [2007] ECR I-10779

Case C-212/04 Konstantinos Adeneler and Others v Ellinikos Organismos alaktos (ELOG) [2006] ECR I-6057

Case C-555/07 Kücükdeveci v Swedec GmbH & Co. KG [2010] All E.R. (EC) 867 (ECJ (Grand Chamber))

Case C-62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I-6325

Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545

Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193

Case C-144/04 Werner Mangold v Rüdiger Helm [2005] ECR I-9981

Treaties

Consolidated Version of the Treaty Establishing the European Community [2002] OJ C325/33

Consolidated Version of the Treaty on European Union [2010] OJ C83/13

Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/47

Legislation

Council Directive 2000/78/EC of November 27, 2000 establishing a general framework for equal payment in employment and occupation [2000] OJ L303/16

Books

Alter K, Establishing the Supremacy of European Law (OUP, 2001)

Arnull A, The European Union and its Court of Justice (OUP, 2nd edition, 2006)

Chalmers D, Davies G and Monti G, European Union Law (Cambridge University Press, 2nd edition, 2010)

Craig P and Búrca G, EU Law: Text, Cases and Materials (OUP, 5th edition, 2011)

Shapiro M and Sweet A S, On Law, Politics, and Judicialization (OUP, 2002)

Edited Book

Witte B, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in P. Craig and G. De Burca (eds), The Evolution of EU Law (OUP, 2nd edition, 2011)

Journal Articles

Alter K J, ‘Who are the “Master of the Treat”?: European Governments and the European Court of Justice’ (1998) 52 International Organization 121

Burley A and Mattli W, ‘Europe before the Court: A Political Theory of Legal Integration’ (1993) 47 International Organization 41

Calderia G A and Gibson J L, ‘Democracy and Legitimacy in the European Union: the Court of Justice and its Constitutents’ (1997) 49 International Social Science Journal 209

Carrubba C J and Murrah L, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’ (2005) 59 International Organization 399

Carrubba C J, Gabel M and Hankla C, ‘Judicial Behaviour under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 American Political Science Review 435

Carruba C J, Gabel M and Hankla C, ‘Understanding the Role of the European Court of Justice in European Integration’ (2012) 106 American Political Science Review 214

Garrett G, ‘The Politics of Legal Integration in the European Union’ (1995) 49 International Organization 171

Garrett G, Kelemen R D and Schulz H, ‘The European Court of Justice, National Governments, and Legal Integration in the European Union’ (1998) 52 International Organization 149

Hinarejos A, ‘On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-executing, Supreme? (2008) 14 European Law Journal 620

Sweet A S and Brunell T, ‘The European Court of Justice, State Noncompliance, and the Politics of Override’ (2012) 106 American Political Science Review 204

Tsebelis G and Garrett G, ‘The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union’ (2001) 55 International Organization 357

Wernicke S, ‘Au nom de qui? The European Court of Justice between Member States, Civil Society and Union Citizens’ (2007) 13 European Law Journal 380

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Endnotes

1.) Clifford J. Carrubba, Matthew Gabel and Charles Hankla, ‘Judicial Behaviour under Political Constraints: Evidence from the European Court of Justice’ (2008) 102 APSR 435, 435-6.

2.) Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (OUP, 2002), 281.

3.) Geoffrey Garrett, ‘The Politics of Legal Integration in the European Union’ (1995) 49 IO 171, 171; Geoffrey Garrett, R. Daniel Kelemen and Heiner Schulz, ‘The European Court of Justice, National Governments, and Legal Integration in the European Union’ (1998) 52 IO 149, 149-150; George Tsebelis and Geoffrey Garrett, ‘The Institutional Foundations of Intergovernmentalism and Supranationalism in the European Union’ (2001) 55 IO 357,358; Clifford J. Carrubba and Lacey Murrah, ‘Legal Integration and Use of the Preliminary Ruling Process in the European Union’ (2005) 59 IO 399, 399-400.

4.) Anne-Marie Burley and Walter Mattli, ‘Europe before the Court: A Political Theory of Legal Integration’ (1993) 47 IO 41, 42; Karen Alter, Establishing the Supremacy of European Law (OUP, 2001), 211-225; Tsebelis and Garrett (n 3) 359.

5.) Karen J. Alter, ‘Who are the “Master of the Treat”?: European Governments and the European Court of Justice’ (1998) 52 IO 121, 121; Alex Stone Sweet and Thomas Brunell, ‘The European Court of Justice, State Noncompliance, and the Politics of Override’ (2012) 106 APRS 204, 206.

6.) Burley and Mattli (n 4) 66.

7.) Clifford J. Carruba, Matthew Gabel and Charles Hankla, ‘Understanding the Role of the European Court of Justice in European Integration’ (2012) 106 APRS 214, 222. See also Alter (n 5) 121; Carruba, Gabel and Hankla (n 1) 449.

8.) Gregory A. Calderia and James L. Gibson, ‘Democracy and Legitimacy in the European Union: the Court of Justice and its Constitutents’ (1997) 49 International Social Science Journal 209, 209.

9.) Garrett, Kelemen and Schulz (n 3) 149; Carruba and Murrah (n 3) 400-401; Alter (n 4) 225.

10.) Case C-184/99 Rudy Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve [2001] ECR I-6193, para 31. See also Stephan Wernicke, ‘Au nom de qui? The European Court of Justice between Member States, Civil Society and Union Citizens’ (2007) 13 ELJ 380, 395.

11.) Consolidated Version of the Treaty Establishing the European Community [2002] OJ C325/33, art 234.

12.) Consolidated Version of the Treaty on the Functioning of the European Union [2010] OJ C83/47, art 267.

13.) Case 14/86 Pretore di Salò v Persons unknown [1987] ECR 2545.

14.) Bruno de Witte, ‘Direct Effect, Primacy and the Nature of the Legal Order’ in P. Craig and G. de Búrca (eds), The Evolution of EU Law (OUP, 2nd edition, 2011), 323; Alter (n 5) 126.

15.) Damien Chalmers, Gareth Davies and Giorgio Monti, European Union Law (Cambridge University Press, 2nd edition, 2010), 185-6.

16.) ibid 185-7.

17.) Chalmers, Davies and Monti (n 15) 186-7. See also Alicia Hinarejos, ‘On the Legal Effects of Framework Decisions and Decisions: Directly Applicable, Directly Effective, Self-executing, Supreme?’ (2008) 14 ELJ 620, 627.

18.) Consolidated Version of the Treaty on European Union [2010] OJ C83/13.

19.) Chalmers, Davies and Monti (n 15) 187-8.

20.) ibid 224-5.

21.) Case C-212/04 Konstantinos Adeneler and Others v Ellinikos Organismos alaktos (ELOG) [2006] ECR I-6057, para 122.

22.) Paul Craig and Gráinne de Búrca , EU Law: Text, Cases and Materials (OUP, 5th edition, 2011), 182; Anthony Arnull, The European Union and its Court of Justice (OUP, 2nd edition, 2006), 172. See also Witte (n 14) 339.

23.) Craig and de Búrca (n 22) 182-201; Garrett, Kelemen and Schulz (n 3) 172-3.

24.) Case-C 62/00 Marks & Spencer plc v Commissioners of Customs & Excise [2002] ECR I- 6325, paras 22-28.

25.) Case C-253/00 Antonio Muñoz y Cia SA and Superior Fruiticola SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR I-7289 , para 27.

26.) Case C- 438-05 International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OU Viking Line Eesti [2007] ECR I- 10779.

27.) Council Directive 2000/78/EC of November 27, 2000 establishing a general framework for equal payment in employment and occupation [2000] OJ L303/16.

28.) Case C- 144/04 Werner Mangold v Rüdiger Helm [2005] ECR I- 9981, paras 74-78.

29.) Case C-555/07 Kücükdeveci v Swedec GmbH & Co KG [2010] All E.R. (EC) 867 (ECJ (Grand Chamber)), para 53.