EU LAW (NON-)APPLICATION IN/BY THE EU MEMBER STATES,
BY THEIR AUTHORITIES AND THEIR COURTS
About the nature of the EU law system, the EU law provisions’ direct effect, and the direct applicability of some EU law sources – as key prerequisites for the protection of individual rights conferred by the EU law
by Ginka Tchervenkova, MSc (UK), MA (Germany)
The EU law is an independent law order (Semov 2009: 5, Popova, 2001: 90). Semov stresses that it is not a kind of international law because it is established on a quite different principle and organisational basis. The EU law does not fall into the scope of the internal law of the EU Member States either – it is to be applied by them on their territories as a separate legal system. The EU law is, therefore, first and foremost to be understood as an autonomous law construction (Semov 2009: 6).
Semov points out that the will of contracting parties is the key criterion for distinguishing the international law from the EU law (Semov 2009: 21). He explains that, whereas the system of international law is rooted in the ‘incidental will’ of a state to engage with a particular law source, the integration law system of the EU is based on the ‘general will’ of the Member States that they have explicitly declared by signing a formal international agreement to be subsequently engaged without to have to re-confirm their will each single time the necessity may arise. Therefore, Semov (2009: 22) concludes, that whereas the international law is a system based on sovereignty, decentralisation and the absence of a superior power, the integration law of the EU is exactly the opposite case: the EU law system is based on the transferred sovereignty upon supranational bodies and thus, on the ‘establishment’ of a superior power, i.e. the empowerment of the institutions of the EU to make decisions on part of and instead of the EU Member States and their respective national bodies. This is to be interpreted as a first key difference between both legal systems.
By referring to Gautron (1997: 160 ff), Semov justifies that the ECJ ruling in the case Van Gend en Loos ( C-26/62) comes to prove that conclusion. Thus, the ECJ ruling in that case should be observed as a very specific prolongation of the traditional interpretations on the international law provisions’ direct effect. According to the latter, an international legal instrument usually rules some relations between states, it also could, however, foresee some rights or obligations for private persons who are addressee of the provisions in issue, i.e. the self-executing provisions in the international law, the most popular example for which are the international agreements in the human rights area (Semov 2009: 61).
It can, therefore, be suggested that such point of view does not come to question the supranational nature of the EU law by equalising it to a kind of a basic international law. It rather comes to stress the difference between both: whereas the international law could be observed as a general basis, the EU law is the new building of law erected on that general basis, i.e. in the wording of the ECJ ‘a new legal order’ with a ‘supranational’ (and not ‘international’) character.
By referring to Vidin (1999: 15), Semov (2009: 22) extracts as a next difference the role assigned to states in both legal orders. Whereas the state is a key party in the international law order, it is in the European Union law just one of the parties that are enjoying rights besides citizens and economic organisations acting on the internal market – a viewpoint shared by Popova (2001: 87-91), too.
Popova (2001: 88) stresses that the supremacy and the direct effect represent the core principles of the EU law system. By referring to Ruschev (2008: 15), Semov points out that a key characteristic of all sources of law is their normative character. He maintains that the sources of the EU law system thoroughly reflect this interpretation. The ‘direct effect’ of some groups of provisions in the EU law should be interpreted as a principle validity of the basic EU law instruments (the Treaties, the regulations, and, subject to some restrictions, the directives as well) for directly conferring rights and obligations upon organisational bodies, legal or natural persons in the Member-States. Thus, there is a shared opinion of researchers as regards the huge importance of the direct effect that is both one of the most essential characteristics of the European Union’s legal order, and one of the most essential differences between it and the international legal system (Semov 2009: 20, Popova, 2001: 87).
On first place, it is to be stressed that the direct effect – the most essential characteristic of the supranational EU law – is a characteristic related to the EU law provisions, and not to the EU law instruments and provisions’ sources (Semov 2009: 55). Popova (2001) points explicitly out that the direct effect is to be analysed as something completely different than the direct applicability. She explains that the direct applicability is related to the way the supreme EU law is integrated into the national legal order of the EU Member States. In difference, the direct effect is linked to the protection of the individual rights before national bars. The direct effect of a particular EU law provision is a mechanism for protection against actions and measures by which the EU law is violated. This is so due to the direct effect implying the possibility for private persons to directly referring to certain EU law provisions in disputes between them and the national bodies of the Member States (Popova, 2001: 89).
- Quote paper
- Ginka Tchervenkova (Author), 2011, The protection of individual rights in the EU law system. Law provision’s direct effect, applicability of law sources, Munich, GRIN Verlag, https://www.grin.com/document/178468