On the legal effects of framework decisions and decisions: Directly applicable, directly effective, self-executing, supreme?

European Law Journal

Volumn 14, Issue 5, 2008, Pages 620-634

  Hinarejos, Alicia ^a,b  

^a BRASENOSE COLLEGE   (United Kingdom)

^b UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

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EID: 65349177072     PISSN: 13515993     EISSN: 14680386     Source Type: Journal    
DOI: 10.1111/j.1468-0386.2008.00433.x     Document Type: Article

References (93)

1. The European Court of Justice (ECJ) has recently clarified that these measures are generally not supposed to produce legal effects in relation to third parties; if they do, they are reviewable under Article 35 TEU: Case C-355/04, P Segi, judgment of 27 February 2007, paras 52-56.
2. The Commission has stated that in order to assess whether national implementation of Framework Decisions has taken place correctly, it will apply the same criteria used in the case of Directives: Report from the Commission based on Article 9 of the Council Framework Decision of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence, COM (2006) 770 final, 6 December 2006, at 4-5.
3. S. Peers, EU Justice and Home Affairs Law (Oxford University Press, 2006), 33.
4. M. Claes, The National Courts' Mandate in the European Constitution (Hart, 2006), 72.
5. J. A. Winter, 'Direct Applicability and Direct Effect. Two Distinct and Different Concepts in Community Law', (1972) 9 CMLR 425, at 428.
6. For instance S. Prechal, 'Does Direct Effect Still Matter?', (2000) 37 CMLR 1047-1069
7. and Directives in EC Law (Oxford University Pres, 2005), 226-269
8. P. Eleftheriadis, 'The Direct Effect of Community Law: Conceptual Issues' (1996) 16 YBEL 205.
9. In disagreement, Winter, op cit n 5 supra
10. Opinion of AG Warner in Case 131/79, Santillo [1980] ECR 1585
11. S. Weatherill, Cases and Materials on EU Law (Oxford University Press, 7th edn, 2005), 133
12. K. Lenaerts and P. Van Nuffel. Constitutional Law of the European Union (Sweet & Maxwell, 2nd edn, 2005), 702-703
13. D. Wyatt and A. Dashwood, European Union Law (Sweet & Maxwell, 5th edn, 2006) 128
14. A. Arnull, The European Union and its Court of Justice (Oxford University Press, 2nd edn, 2006), 185-187.
15. See Case 39/72, Commission v Italy [1973] ECR 101, para 17
16. Case 94/77, Zerbone v Amministrazione delle Finanze dello Stato [1978] ECR 99, para 23.
17. The provision must be sufficiently clear, it must be unconditional, and it must confer a specific right on the individual. Case 26/62, Van Gend & Loos [1963] ECR 1.
18. See for example Case C-403/98, Monte Arcosu [2001] ECR I-103.
19. Case 9/70, Grad v Finanzamt Traunstein [1970] ECR 825
20. Case 41/74, van Duyn v Home Office [1974] ECR 1337.
21. Further proof of this distinction is that even directly effective Directives have to be implemented (ie they are not directly applicable): Case 104/86, Commission v Italy [1988] ECR 1799, para 12
22. Case 102/79, Commission v Belgium [1980] ECR 1473, para 12.
23. The ECJ has equally described direct effect as creating enforceable rights (Case 12/81, Garland v British Rail [1982] ECR 359
24. C-236/92, Comitato di coordinamento per la difesa della Cava and others [1994] ECR I-483)
25. and as the capacity to be relied upon before the courts (Case 8/81, Becker v Finanyamt Münster- Innenstadt [1982] ECR 53).
26. For a general overview of the discussion, Prechal, op cit n 6 supra, at 231-241.
27. It is generally Directives that deploy exclusionary effects: This can only be the case once the deadline for their implementation has passed because they become binding at that point. 'Binding' here means that, by the time the transposition period is over, the national implementing measures should be in place; this cannot be demanded before. Of course, Directives are binding in a more loose sense on states even before the deadline for implementation has passed (Case C-129/96, Inter-Environnement Wallonie [1997] ECR I7411, para 41: 'a directive has legal effect with respect to the Member State to which it is addressed from the moment of its notification.'). These early legal effects only mean that, before the deadline has passed, states cannot adopt measures which will seriously compromise the achievement of the objective of the Directive (an obligation based on Articles 10 and 249 EC: Inter-Environnement Wallonie, ibid, at para 45). Before the deadline for implementation has passed, however, it is not possible for a Directive to deploy exclusionary effect: In Mangold, the Court had to shift away from a Directive in this situation and resort to a general principle of Community law (non-discrimination on grounds of age) in order to instruct the national court to discharge the Simmenthal duty to disapply a conflicting national rule: Case C-144/04, Mangold [2005] ECR I-9981.
28. For a discussion of the so-called exclusionary effect, Opinion of AG Saggio in Joined Cases C-240/98 and 244/98, Oceano Grupo Editorial [2000] ECR I-4941
29. P. V. Figueroa Regueiro Invocability of Substitution and Invocability of Exclusion: Bringing Legal Realism to the Current Development of the Case-Law of Horizontal Direct Effect of Directives, Jean Monnet Working Paper 7/02, available at http://www.jeanmonnetprogram.org/papers/02/ 020701.pdf.
30. Case C-194/94, CIA Security International [1996] ECR I-2201.
31. Case C-443/98, Unilever Italia [2000] ECR I-7535.
32. M. Lenz, D. Sif Tynes and L. Young, 'Horizontal What? Back to Basics' (2000) 25 ELRev 509
33. T. Tridimas, 'Black, White and Shades of Grey: Horizontality of Directives Revisited' (2002) 21 YEL 327
34. K. Lenaerts and T. Corthaut, 'Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law' (2006) 31(3) ELRev 287
35. cf Wyatt and Dashwood, op cit n 6 supra, at 183-185.
36. Apart from the problem of the horizontal direct effect of Directives, other areas where the disagreement between both conceptions of direct effect has flourished are the direct effect of the WTO agreements and the effects of certain EC law provisions such as those concerning the protection of the environment: P. Craig and G. de Burca, EU Law. Texts, Cases and Materials (Oxford University Press, 3rd edn, 2003), 181.
37. Winter, op cit n 5 supra, at 428.
38. Supreme Court (US), Foster and Elam v Neilson, US SC 1829, 2 Peters (US) 253.
39. And which can be traced back to the ruling of the Permanent Court of International Justice in the Danzig Railway case (1928) Publication of the PCJJ, Series B, 15.
40. The distinction between both conceptions was pointed out by Winter, op cit n 5 supra, at 428-429.
41. Case C-431/92, Commission v Germany (Grosskrotzenburg) [1995] ECR I-2189.
42. Winter, op cit n 5 supra.
43. P. Eleftheriadis, 'The Direct Effect of Community Law: Conceptual Issues' (1996) 16 YBEL 205, at 215-216.
44. For an overview of the concept and its evolution, see B. de Witte, 'Direct Effect, Supremacy and the Nature of the Legal Order', in P. Craig and G. de Burca, The Evolution of EU Law (Oxford University Press, 1999), 189-215.
45. Case 6/64, Costa v ENEL [1964] ECR 585
46. Case 106/77, Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629.
47. Case 11/70, Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratstelle für Getreide und Futtermittel [1970] ECR 1125.
48. Claes, op cit n 4 supra, at 115
49. L. F. M. Besselink, 'Curing a "Childhood Sickness"? On Direct Effect, Internal Effect, Primacy and Derogation from Civil Rights. The Netherlands Council of State Judgment in the Metten Case' (1996) 3 MJ 165, at 171.
50. Claes, op cit n 4 supra.
51. The perfect occasion came with C-287/98, Linster [2000] ECR I-6917. AG Léger did not dodge the question and concluded that EC measures could deploy an exclusionary effect in absence of direct effect (paras 81-82). The ECJ did not address the AG's arguments, although it did conclude that the measure should be allowed to deploy an exclusionary effect without examining the question of whether it was directly effective.
52. In several cases the Court seems to agree implicitly with the idea of exclusionary effect in absence of direct effect: C-287/98, Linster [2000] ECR I-6917
53. C-365/98, Brinkmann [2000] ECR I-4619
54. C-457/02, Niselli [2004] ECR I-10853.
55. There are also instances where the Court can be said to have implicitly rejected the distinction: Joined Cases C-397/01 to C-403/01, Pfeiffer and Others v Deutsches Rotes Kreuz [2004] ECR I-8835
56. Joined Cases C-387/02, C-391/02, and C-403/02, Berlusconi and Others [2005] ECR I-3565.
57. For an extensive analysis of the case-law of the Court on this matter, see Arnull, op cit n 6 supra, at 239-252.
58. Lenaerts and Van Nuffel, op cit n 6 supra, at 804-807.
59. Cf Peers, op cit n 3 supra, at 33.
60. Since national courts are under the duty of conform interpretation within the third pillar as well: Case C-105/03, Pupino [2005] ECR I-5285. The ECJ stated in this case that the duty of conform interpretation applies in the third pillar. We may safely infer from this that it must always be possible for an individual to invoke an EU measure before a national court in order to make the latter aware of its duty of conform interpretation and perform it, regardless of the scope we attribute to the prohibition of direct effect.
61. For a more general overview of the case, M. Fletcher, 'Extending "Indirect Effect" to the Third Pillar: The Significance of Pupino' (2005) 30 ELRev 862
62. J. Spencer, 'Child Witnesses and the European Union' (2005) 64 CLJ 569
63. E. Spaventa, 'Opening Pandora's Box: Some Reflections on the Constitutional Effects of the Decision in Pupino' (2007) 3 Eur Constitutional LRev 5
64. E. Spaventa, 'Remembrance of Principles Lost: On Fundamental Rights, the Third Pillar and the Scope of Union Law' (2006) 25 YEL 153.
65. For further discussion, see also S. Prechal, 'Direct Effect, Indirect Effect, Supremacy and the Evolving Constitution of the European Union', in C. Barnard (ed) The Fundamentals of EU Law Revisited (Oxford University Press, 2007), 35.
66. To a similar conclusion comes Prechal, ibid, at 44-47.
67. Lenaerts and Van Nuffel, op cit n 6 supra, at 807
68. Claes, op cit n 4 supra, at 95.
69. Claes, op cit n 4 supra. It is, of course, arguable that direct effect is no general rule in EU law but, rather, only in Community law.
70. For the use that Decisions are given in practice, see Peers, op cit n 3 supra, at 36. For an example of fairly detailed instructions given to national authorities in third pillar Decisions, see for example the Council Decision 2005/876/JHA of 21 November 2005 on exchange of information extracted from the criminal record, or Council Decision 2005/ 671/JHA of 20 September 2005 on exchange of information and co-operation concerning terrorist offences.
71. According to Article 35(5) TEU, the Court 'shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security'. Thus the Court would have jurisdiction to review the third pillar decision, but not its national enforcement. On the one hand, this may pose no problem, since the Court, in theory, never reviews national action. On the other hand, it is arguable that the Court may adopt a more-cautious-than-normal approach in reviewing the third pillar decision if there is no national law between the EU measure and the action of a national law-enforcement body. Depending on how a preliminary question is framed by the national court, the ECJ may feel it should decline to answer, or may not be able to give a very useful reply (so as not to overstep the boundary of Article 35(5) TEU).
72. At least as regards application of the Decision as the rule which governs the matter; whether we think that the Decision could be applied as a standard of legality in practice depends on our conception of direct effect.
73. AG van Gerven in Case C-106/89, Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] I-4135. The duty of conform interpretation can be seen as a 'weaker' manifestation of primacy (weaker than the duty to disapply).
74. For an extensive argumentation see Claes, op cit n 4 supra, at 115-117.
75. For the literature on Pupino and its significance, see n 34 supra.
76. Lenaerts and Corthaut, op cit n 17 supra.
77. Similarly, Spaventa seems to assume that supremacy applies, at least, to general principles of law concerning fundamental rights in the third pillar: She therefore argues that they can be used as a standard of legality against which national rules of implementation of EU law can be measured: Spaventa (2007), op cit n 34 supra
78. Spaventa (2006), op cit n 34 supra.
79. For further discussion, see also Prechal, op cit n 34 supra, at 606-607.
80. See n 13 supra.
81. As to the rest of third pillar instruments, Common Positions require Member States' compliance only as a result of the duty of loyal cooperation: Case C-355/04, P Segi, judgment of 27 February 2007, para 52; they are therefore only binding in the same loose sense that Directives are binding before the deadline for implementation has passed. The case of Conventions is not clear since their legal effects are not properly defined in the TEU, although it is arguable that they are binding on the Member States once they are incorporated into national law.
82. Lenaerts and Corthaut, op cit n 17 supra.
83. BVerfG Decision of 12 October 2003 (cases 2 BvR 2134/92 and 2159/92), 89 BVerfGE 155
84. 1 CMLR 57 [14]-[17]-[22].
85. The duty of conform interpretation within the third pillar can be easily reconciled with this looser conception of primacy.
86. Case C-303/05, Advocaten voor de Wereld, judgment of 3 May 2007, para 45
87. Case C-355/04, P Segi, judgment of 27 February 2007, para 51.
88. Case C-176/03, Commission v Council [2005] ECR I-7879, where the Court stated that although '[a]s a general rule, neither criminal law nor the rules of criminal procedure fall within the Community's competence', this does not prevent the Community legislature from taking measures which relate to the criminal law of the Member States and which it considers necessary in order to ensure that the EC rules on environmental protection are effective. Accordingly, a criminal law measure may be adopted within the first or third pillar, depending on its main or predominant purpose.
89. See also AG Mazák's Opinion in pending Case C-440/05, Commission v Council (ship-source pollution), delivered on 28 June 2007.
90. Communication from the Commission to the European Council, A Citizens' Agenda: Delivering Results for Europe, COM (2006) 211 final; Implementing the Hague Programme: The Way Forward, COM (2006) 331 final.
91. Presidency Conclusions of the Brussels European Council 11177/07 CONCL 2, 23 June 2007.
92. It could be argued that the Court already chose to avoid the primacy question in Advocaten, where it could have addressed the worries on primacy and the third pillar voiced by the Polish and Czech constitutional courts. Case C-303/05, Advocaten voor de Wereld, judgment of 3 May 2007.
93. On this issue, see A. Hinarejos, 'Recent Human Rights Developments in the EU Courts: The Charter of Fundamental Rights, the European Arrest Warrant and Terror Lists' (2007) 7 Human Rights Law Review 793-811, at 795-802.