Direct Applicabililty in Europe

Direct Applicability of Union Law To National Law

Firstly, the direct applicability principle simply means that Union law confers rights and imposes obligations directly not only on the Union institutions and the Member States but also on the Union’s citizens.

Context of Direct Applicabililty in the European Union

One of the outstanding achievements of the Court of Justice is that it has enforced the direct applicability of Union law despite the initial resistance of certain Member States, and has thus guaranteed the existence of the EU legal order. Its case-law on this point started with a case already mentioned, namely that of the Dutch transport firm Van Gend & Loos. The firm brought an action in a Dutch court against the Dutch customs authorities, which had charged increased customs duties on a chemical product imported from the Federal Republic of Germany. In the final analysis, the outcome of these proceedings depended on the question of whether individuals too may invoke Article 12 of the EEC Treaty, which specifically prohibits the introduction by the Member States of new customs duties and the increase of existing duties in the common market. Despite the advice of numerous governments and its Advocate General, the Court ruled that, in view of the nature and objective of the Union, the provisions of Union law were in all cases directly applicable. In the grounds for its judgment, the Court stated that:

More about Direct Applicabililty in the European Union

‘… the Community constitutes a new legal order … the subjects of which comprise not only the Member States but also their nationals. Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.’

Other Aspects

That bald statement does not, however, get us very far, since the question remains as to which provisions of Union law are directly applicable. The Court first of all looked at this question in relation to primary Union legislation and declared that individuals may be directly subject to all the provisions of the Union Treaties which (i) set out absolute conditions, (ii) are complete in themselves and self-contained in legal terms and therefore (iii) do not require any further action on the part of the Member States or the Union institutions in order to be complied with or acquire legal effect.

Details

The Court ruled that the former Article 12 EEC met these criteria, and that the firm Van Gend & Loos could therefore also derive rights from it which the court in the Netherlands was obliged to safeguard, as a consequence of which the Dutch court invalidated the customs duties levied in contravention of the Treaty. Subsequently, the Court continued to apply this reasoning in regard to other provisions of the EEC Treaty that are of far greater importance to citizens of the Union than Article 12. The judgments that are especially noteworthy here concern the direct applicability of provisions on freedom of movement (Article 45 TFEU), freedom of establishment (Article 49 TFEU) and freedom to provide services (Article 56 TFEU).

Last Remarks

With regard to the guarantees concerning freedom of movement, the Court of Justice delivered a judgment declaring them directly applicable in the Van Duyn case. The facts of this case were as follows: Miss van Duyn, a Dutch national, was in May 1973 refused permission to enter the United Kingdom in order to take up employment as a secretary with the Church of Scientology, an organisation considered by the Home Office to be ‘socially harmful’. Invoking the Union rules on freedom of movement for workers, Miss van Duyn brought an action before the High Court, seeking a ruling that she was entitled to stay in the United Kingdom for the purpose of employment and be given leave to enter the United Kingdom. In answer to a question referred by the High Court, the Court of Justice held that Article 48 of the EEC Treaty (Article 45 TFEU) was directly applicable and hence conferred on individuals rights that are enforceable before the courts of a Member State.

The Court of Justice was asked by the Belgian Conseil d’État to give a ruling on the direct applicability of provisions guaranteeing freedom of establishment. The Conseil d’État had to decide on an action brought by a Dutch lawyer, J. Reyners, who wished to assert his rights arising out of Article 52 of the EEC Treaty (Article 49 TFEU). Mr Reyners felt obliged to bring the action after he had been denied admission to the legal profession in Belgium because of his foreign nationality, despite the fact that he had passed the necessary Belgian examinations. In its judgment of 21 July 1974, the Court held that unequal treatment of nationals and foreigners as regards establishment could no longer be maintained, as Article 52 of the EEC Treaty had been directly applicable since the end of the transitional period and hence entitled Union citizens to take up and pursue gainful employment in another Member State in the same way as a national of that State. As a result of this judgment Mr Reyners had to be admitted to the legal profession in Belgium.

The Court of Justice was given an opportunity in the Van Binsbergen case to specifically establish the direct applicability of provisions relating to the freedom to provide services. These proceedings involved, among other things, the question of whether a Dutch legal provision to the effect that only persons habitually resident in the Netherlands could act as legal representatives before an appeal court was compatible with the Union rules on freedom to provide services. The Court ruled that it was not compatible on the grounds that all restrictions to which Union citizens might be subject by reason of their nationality or place of residence infringe Article 59 of the EEC Treaty (Article 56 TFEU) and are therefore void.

Also of considerable importance in practical terms is the recognition of the direct applicability of provisions on the free movement of goods (Article 41 TFEU), the principle of equal pay for men and women (Article 157 TFEU), the general prohibition of discrimination (Article 25 TFEU) and freedom of competition (Article 101 TFEU). As regards secondary legislation, the question of direct applicability only arises in relation to directives and decisions addressed to the Member States, given that regulations and decisions addressed to individuals already derive their direct applicability from the Union Treaties (Article 288(2) and (4) TFEU). Since 1970 the Court has extended its principles concerning direct applicability to provisions in directives and in decisions addressed to the Member States.

The practical importance of the direct effect of Union law in the form in which it has been developed and brought to fruition by the Court of Justice can scarcely be overemphasised. It improves the position of the individual by turning the freedoms of the common market into rights that may be enforced in a national court of law. The direct effect of Union law is therefore one of the pillars, as it were, of the EU legal order.