Directive and Indirective Effects - Essay Example

Directive and indirective effects The European Union (EU) is composed of its member s. The governments of those member s have signed and ratified successive Treaties outlining the objectives and institutions of the Union, starting with the European Coal and Steel Community of 1951 and continuing through the creation and institutional elaboration of today's European Union. As in any international organization, the member governments of the EU have assigned to themselves the central role in the governance of the Union. Member governments dominate both the European Council - the semi-annual summit meetings at which government leaders set the broad strategic direction of the Union - and the Council of Ministers, which has historically been, and remains, its pre-eminent legislative body. At the same time, however, the EU's member governments have created and allocated increasing powers and discretion to a number of supranational organizations, including the executive Commission, the European Court of Justice (ECJ), and a European Parliament (EP), which now acts as a co-legislator with the Council in a growing number of areas. Although clearly the creation, or agents, of the member governments, these supranational organizations possess powers and preferences distinct from those of their member-state principals, and they have frequently been posited by both practitioners and academic observers as the embodiment of the project of European integration. The Commission of the European Union was established as one of the two executive institutions of the European Communities (EC). As opposed to the Council of the European Union, which represents the Member States, the Commission has been regarded as both the European, or supranational, and the administrative arm of the EC executive. The term refers to both the collectivity of the Commissioners (currently 20 in number) and the administrative apparatus that serves them. The obligations of the Commission are laid down in Article 211 of the Treaty of Rome as initiation, supervision and implementation. It was to share decision-making powers with the Council of Ministers, but since in most instances the Council cannot take any action in the absence of Commission initiatives, the Commission became, in effect, the central formulator of legislation in the EC. As to supervision, the Commission was given a general responsibility to ensure that other EC institutions and the Member States fulfilled those tasks and provisions assigned to them under the founding treaties. It had a duty to ensure that decisions taken by the Council were carried out, or adhered to, by the Member States, making it responsible for the implementation of EC legislation (for more detailed information see Elgstrm, 2005, p. 214). With the establishment of the EU, the European Commission continued to uphold the founding treaties and the acquis communautaire by monitoring other institutions and the Member States, although its exclusive right of initiative was compromised. In extreme circumstances, it can seek to enforce implementation by prosecuting an offending institution or Member State in the Court of Justice. The Commission is also required to advise on matters regarding the treaties, and even volunteers advice where it deems necessary. In order to fulfill this function, the Commission has had to develop a vast network of consultative and advisory bodies and contacts. It continues to take decisions in conjunction with the Council and the EP or, as with the CAP and competition policy, in its own right. The TEU gave it additional initiative authority in the areas of social policy and economic and monetary union (EMU). The Treaty further gave the Commission the right to be fully involved in the work of the two intergovernmental pillars that would stand alongside the EC: it can seek to initiate action within these pillars and even propose that some areas of responsibility should be transferred to the EC pillar (Sieberson, 2004, p. 993). The Commission must also carry out the duties and responsibilities conferred upon it by the Council of the European Union. To fulfil all these obligations, the Commission has to utilize a considerable number of resources. It controls the administrative apparatus of the EC, currently employing a workforce of some 17,000 people (Occhipinti, 2003, p. 107). These are mainly based in Brussels, but some are in Luxembourg, in EU offices in Member States or in delegations to non-member countries. Others, primarily engaged in scientific projects, are located in centres throughout the EU. The Commissioners meet formally once a week to discuss an agenda that has been prepared in advance. Additional and sometimes more informal meetings can be held to discuss general questions of European development, or more specific problems. If a majority of Commissioners are present a meeting is considered to be quorate, and decisions are taken by a simple majority. Once the Commission has taken a decision, however, its members are expected to abide by the principle of collective responsibility. Legislation is enacted by complex procedures in the European Union (EU). The Council of the European Union and the European Parliament (EP) or the European Commission are empowered to issue three different kinds of legislation: regulations, directives and decisions. The Court of Justice institutes a fourth source of legislation: rulings given by the Court on the cases that come before it constitute a body of case-law which affects the interpretation and implementation of European Communities (EC) and national law. In addition, there is so-called 'soft law' (see Ibanez, 2004, p. 137). The EC equivalent of national legislation is the combination of regulations and directives. The first stage of both lies with the Commission, which has the right of initiative. If adopted by the Council, the Commission's proposal becomes either a regulation or a directive. The distinction between the two is important. Regulations are more rigorous, the highest form of legislation. They are detailed instructions, applicable throughout the EU, and directly binding upon all Member States. Directives are also binding, but take the form of general instructions on the goal to be achieved, while leaving the way in which it will be attained to the discretion of each Member State. The conditions of a directive are normally met by the Member States introducing national legislation in conformity with EC stipulations. Decisions by either the Commission or the Council are also binding upon the Member States; they may be addressed to named individuals or enterprises. Decisions can be made by either of the EC executives on the basis of the direct authority they possess under the terms of the Treaty of Rome and its amendments, or on the basis of earlier regulations or directives. (Decisions made according to the provisions of the Treaty of Paris were slightly different: they were binding in their entirety upon Member States and were thus more similar to regulations.) Under the Treaty of Rome and its amendments, the Commission and the Council can also issue recommendations, which, like opinions, and by contrast with the pronouncements described above, do not constitute instructions but merely express an EC preference that Member States are free to ignore. (However, recommendations made under the Treaty of Paris were binding as to the final result, but not the means to achieve it, rather like EC directives) (Clinch, 2000, p, 91). Whereas originally, decisions to adopt EC legislation involved either the Commission or the Council, the European Parliament (EP) now has a significant role to play. In 1987 the Single European Act introduced the co-operation procedure, which allowed the EP to table amendments to and reject proposed legislation. It also made ratification of Association Agreements and accession treaties conditional on the assent of the EP. This was followed in 1993 by the introduction via the Treaty on European Union (TEU) of the co-decision procedure, along with a requirement that certain legislative proposals be adopted jointly by the Council and the EP Since the TEU, the Treaty of Amsterdam and the Treaty of Nice have extended use of the co-decision and assent procedures, thus enhancing the EP's role in the legislative process (Van Gerven, 1997, p. 105). Decision-making in the EU is often considered complex, malleable and incomprehensible. There are an estimated 20-30 different ways in which decisions can be taken, and even then it is necessary to differentiate between policy and administrative procedures. In a 1995 report the European Commission itself identified 29 different decision-making procedures (for more details see Occhipinti, 2003, p. 80). The key to understanding the decision-making processes lies within the founding treaties and subsequent regulations. The decisions can be classified loosely into different category headings: constitutional decisions (concern the European Council); legislative decisions (concern the Commission, the Council of the European Union and the European Parliament (EP) and are subject to either consultation, co-operation, co-decision or assent procedures); trade policy decisions (Council and Commission); competition policy decisions (Commission and courts); common foreign and security policy (concerns primarily the Member States, as do justice and home affairs issues falling under pillar three); and finally, decisions relating to the budget (which fall to the EP and the Council) (Pollack, 2003, p. 46). Thus, let us summarize the types of legal authorities of the EU. 1) Directives are one of three different types of legislation that the European Commission and the Council of the European Union are empowered to issue. Directives are binding upon all Member States, but take the form of general instructions on the goal to be achieved, while leaving the way in which it will be attained to the discretion of each Member State. The conditions of a directive are normally met by the Member States introducing national legislation in conformity with European Communities stipulations 2) Decisions are one of three different types of legislation that the European Commission and the Council of the European Union are empowered to issue. Decisions by either the Commission or the Council are binding upon the Member States; they may be addressed to named individuals or enterprises. Decisions can be made by either of the European Communities (EC) executives on the basis of the direct authority they possess under the terms of the Treaty of Rome and its amendments, or on the basis of earlier regulations or directives. Decisions made under the Treaty of Paris are slightly different: they are binding in their entirety and are thus closer to EC regulations. 3) Recommendations are one of two kinds of non-binding pronouncement that may be issued by the Council of the European Union and the European Commission. Like opinions, they do not constitute instructions, but merely express the preference of the European Communities (EC), and may be disregarded by the Member States. Recommendations made according to the provisions of the Treaty of Paris were slightly different, however: they were binding upon Member States as to the final result, but not the means of achieving it, and were thus more similar to EC directives. 4) Regulations are one of three different types of legislation that the European Commission and Council of the European Union are empowered to issue. Regulations are the highest, most rigorous form of legislation. They are fairly detailed instructions, applicable throughout the European Union, and are directly binding upon all Member States. 5) Resolutions are statements of principle adopted by the Council of the European Union on the recommendation of the European Commission. While indicating governments' agreement or willingness to act, they have no basis in the founding treaties of the European Communities and are not legally binding upon the Member States 6) Opinions are one of two kinds of non-binding pronouncement that may be issued by the Council of the European Union and the European Commission. Like recommendations they do not constitute instructions, but merely express the preference of the European Communities, and may be disregarded by the Member States. Let us consider the effect of the legal authorities on the example of relationship between the ECJ and national governments. The 'constitutionalisation' of the Treaty of Rome refers to the transformation of Community law from a system of conventional international law, which in principle imposes direct obligations on only states, to a new form of law, much more like the internal law of a state. The constitutionalising of the Treaty addressed the main problem of legal policy faced by the Court, ensuring the effectiveness of Community law. It has sought to solve, or at least manage, this problem by giving Community law rights directly to individuals, particularly rights of redress against governments which fail to live up to their Community obligations. As a result, Community law is much more effectively implemented than conventional international law. Nevertheless, it remains true that the Community suffers from an 'implementation gap' which is wider than that in most national systems, probably because it still relies to a considerable extent on the good faith of the states to enact Community rules into their national legal systems (Ibanez, 2004, p. 139). The constitutionalisation of the Treaty of Rome is usually presented as though decisions of the European Court by themselves transformed the Treaty into the European constitution. Burley and Mattli (cited in Sieberson, 2004, p. 995) partially imported this legal understanding into the political science literature by suggesting that: By their own account, now confirmed by both scholars and politicians, the thirteen judges quietly working in Luxembourg managed to transform the Treaty of Romeinto a constitution. (Burley and Mattli cited ibid.) By contrast with most legal analyses, Burley and Mattli (cited ibid.) emphasise the manner in which other interests were drawn into the process of integration. However, they seem to attribute an overweening influence to the Court, at least in the sphere of what they call 'legal integration', which, whatever else it encompasses, certainly includes the constitutionalising process. In particular, they describe legal integration as 'engineered' by the Court. Thus, their account does not emphasise the relational or negotiated character of the development of the European constitution sufficiently. By contrast Van Gerven analyses the relationship between the Court and national governments, courts and the legal profession as one of partnership in 'a dialogue or "multilogue"' (1997). The other actors are the Court's Interlocutors' (see also the discussion in Elgstrm, 2005). The notion that Community law might have a 'direct effect' in the legal orders of the member states is not present in the Treaty of Rome, although one form of Community secondary legislation - the Regulation - is 'directly applicable'. Thus, the attribution of direct effects to (certain) provisions of the Treaty of Rome was a piece of judicial activism. Direct effect means that individuals can rely on Community laws as such, without a requirement for national implementing legislation. The ECJ initially established the principle of direct effect in relation to a limited category of articles of the EEC Treaty, but soon extended it to a wider range of Treaty articles and eventually to many categories of Community secondary legislation, including some directives. Ultimately the issue of whether a provision of Community law can have direct effect comes down to two issues: whether it is capable of being ruled upon by a court, and whether national courts would be prepared to accept it. Pierre Pescatore, a former judge of the ECJ, has argued that the issue of direct effect boil[s] down to a question of justifiability. A rule can have direct effect whenever its characteristics are such that it is capable of judicial adjudication, account being taken both of its legal characteristics and of the ascertainment of the facts on which the application of each particular rule has to rely. This means that 'direct effect' of Community rules in the last analysis depends less on the intrinsic qualities of the rules concerned thanon the assumption that they [national judges] take these attitudes in a spirit of goodwill and with a constructive mind. To this extent, direct effect appears to be in a way 'l'art du possible' (Pescatore 1983 cited in Ibanez, 2004, p. 138). The development of direct effect began with the Van Gend case (26/62 [1963] ECR 1), in which the Court made clear the radical basis of the doctrine. It claimed that the Community represented a 'new legal order', and that the 'States had limited their sovereign rights' (Case 26/62 Van Gend [1963] ECR 1 at 12) by becoming members of the Community. On this basis and Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage' (Case 26/62 Van Gend [1963] ECR 1 at 12) (for more details see Clinch, 2000, p.. 45). Subsequently the ECJ extended the principle of direct effect to apply to positive obligations contained in Treaty provisions as well as the prohibitions, and to cover relationships between individuals as well as those between an individual and the state (i.e. direct effect could be 'horizontal' as well as 'vertical'). Surprisingly, the initial development of the direct effect of Treaty provisions was more or less uncontested by the member states. Despite the fact that some states objected to the idea of direct effect in the proceedings of the Van Gend case, after the Court took its decision the member states accepted it without further ado, perhaps because the practical impact of this doctrine initially seemed relatively minor. It is more difficult for member states to avoid implementing directly effective Treaty provisions, embodying policies to which they were already committed in principle (see Pollack, 2003, for a discussion of the importance of the low visibility of Court decisions during the early phase of integration). If the attribution of direct effect to Treaty provisions began the transformation of EC law, its extension to some categories of Community secondary legislation fundamentally altered the Community policy process. The extension of the direct effect principle to directives, the most widely used form of secondary legislation, was particularly important. On the face of it a directive leaves member states a good deal of discretion concerning the achievement of the general objectives they set out, which might have made it difficult to ensure that member states were implementing them adequately. However, if a directive could have direct effect then this problem is more or less removed. Even if a member state failed to implement the directive, or failed to implement it adequately, individuals could rely on it as law. The Court developed the notion of the direct effect of directives gradually. Initially, in Grad v. Finanzamt Traunstein (Case 9/70 [1970] ECR 825) the Court argued that a combination of several forms of Community legislation (Directives and Decisions) could produce direct effects. In subsequent cases the Court provided further hints that some directives might be directly effective (see Case 79/72 Commission v. Italian Republic Re Forestry Reproductive Material [1973] ECR 667). Eventually in Van Duyn (Case 41/74 [1974] ECR 1337), the ECJ argued that a directive, on its own, could produce direct effects (see Clinch, 2000, p.. 49). The Court justified this development partly because it would improve the effectiveness of Community law-a political, rather than legal, argument. In addition, the Court suggested that it would be incompatible with the binding effect of directives to argue that in principle they could not have direct effects. Finally the Court implied that the existence of Article 234 (former Article 177), which allows national courts to ask the ECJ to interpret matters of Community law, suggested that directives might have direct effect. The justifications provided by the Court for attributing direct effect to directives in Van Duyn were widely disputed, both academically and by national judiciaries (see Elgstrm, 2005, p. 118). In Ratti (Case 148/78 [1979] ECR 1629) the Court provided a stronger argument in favour of the proposition that some directives should be capable of producing direct effects. In particular, the Court suggested that member states should not be able to benefit from their own failure to fulfil their Community obligations (ibid.). As subsequently became clear (Case 152/84 Marshall [1986] ECR 723) this argument could only justify the direct effectiveness of directives in cases against the state (vertical direct effect), which left an inconsistency in the application of Community law. This inconsistency resulted in a stream of cases in which the ECJ was confronted with having to attempt to define what the extent of the state might be (see, for example, Ibanez, 2004, for discussion). It may also have led to the Court using Article 10 (former Article 5) of the Treaty of Rome creatively, to draw national courts further into the business of applying Community References Clinch, P. (2000). Legal Information: What It Is and Where to Find It (2nd ed.). London: Aslib. Elgstrm, O. (2005). European Union Negotiations: Processes, Networks and Institutions. London: Routledge. Ibanez, A. J. (2004). The "Standard" Administrative Procedure for Supervising and Enforcing EC Law: EC Treaty Articles 226 and 228. Law and Contemporary Problems, 68(1), 135. Occhipinti, J. D. (2003). The Politics of EU Police Cooperation. Boulder, CO: Lynne Rienner. Pollack, M. A. (2003). The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU. Oxford, England: Oxford University Press. Sieberson, S. C. (2004). How the New European Union Constitution Will Allocate Power between the EU and Its Member States - a Textual Analysis. Vanderbilt Journal of Transnational Law, 37(4), 993. Van Gerven, W. (1997). Law Making, Law Finding, and Law Shaping: The Diverse Influences. Oxford: Oxford University. Read More