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Is Direct Effect a General Principle of European Law?

Joxerramon Bengoetxea*

It seems rather daring to write about direct effect after all the literature and case law that has been produced, and perhaps, even more daring to do so in a volume dedicated to the general principles of European Community Law.1 However, as the early Spring Stockholm Conference made clear in its title and also in the interesting contributions and discussions it generated, these principles are ‘in a process of development’, and this carries an implied permission to deal with the issue of direct effect: even though much has been written about direct effect, the fact that it might be in a (constant or at least punctual) process of development makes it necessary to revisit the issue. Provided, of course, we can fit it into the * The On˜ati Institute / University of the Basque Country. 1. The current contribution is based on the presentation made at the Conference on The General Principles of European Community Law in a Process of Development, held at the Hasselbacken in Stochholm on 23–24 March 2007. I wish to thanks the organisers for inviting me to participate as a main speaker in such an interesting Conference, thus giving me a chance to deal with this difficult issue. I also wish to think the Conference participants, too many to mention, for helpful comments. The paper has also been discussed in a modified form in the XIII Italo-spanish Conference on Jurisprudence held at On˜ati and the author is also grateful to participants for their comments. The parts of the paper dealing with the Third Pillar and Framework Directives are in the course of being analysed in greater depth thanks to a research project funded by the University of The Basque Country, to whom I am grateful EHU06/43: ‘La Proteccio´n de los Derechos Fundamentales en el espacio de Libertad, Seguridad y Justicia de la Unio´n Europea’. Ulf Bernitz, Joakim Nergelius and Cecilia Cardner (eds), General Principles of EC Law in a Process of Development, pp. 3–23. #2008 Kluwer Law International B.V. Printed in Great Britain.


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wider category of general principles of European Community Law. This paper attempts to show that direct effect is a general principle of European Community Law, or rather that it is based on a general principle of effectiveness which is a typical feature of European Community Law, perhaps of all normative systems that may be called law. The paper will deal with this principle of effectiveness, as inbuilt in European Law and in the process of integration. Much of the paper will thus be devoted to an analysis of the diverse effects of norms contained in directives using a legal theoretical framework that draws from the distinction of provisions and norms and allows for defeasibility of norms.2 The central role played by effectiveness should however be nuanced by combining it with the need for legitimacy, something that would allegedly call into the fore the theories of rational discourse and the classical general principles of law, and most significantly fundamental rights, in the quest for legitimacy of the law. 1.1.1

THEORETICAL REMARKS ON PRINCIPLES, DIRECT EFFECT AND NORMS

This section draws from legal theory and the theory of community law to discuss the concept of principle, and of general principle as well as the distinction between provisions and norms. It also attempts at a distinction between direct effect and direct applicability in Community law based on the theoretical or analytical distinction between provisions and norms, or between legal sources and their normative contents. 1.1.1.1

IS DIRECT EFFECT

A

GENERAL PRINCIPLE

OF

EUROPEAN LAW?

The question addressed in the main title of this contribution, whether direct effect is a general principle of European Law requires a previous analysis of the different concepts contained in the question: What is direct effect? And is direct effect a principle? Is it perhaps a general principle, assuming there is any difference between principles that are general and principles that are not. Of course, this will depend on the answer to the question ‘What is a (general) principle of law?’ Some principles might be more general or abstract than others. But the title of the paper which refers to European law links with, and slightly departs from the title of the Conference which mentions European Community (EC) Law: What is meant by European law? Is it different from European Community Law? These questions seem simple, but they are actually rather difficult to answer, not just in the context of European law, but in the context of other laws as well. 2. The most relevant autor in this sense is Ricardo Guastini and the Genova school. Gustini’s theory of sources and the distinction between provisions and norms can be easily grasped in ‘An inquiry into the theory of legal sources’, European Journal of Law, Philosophy and Computer Science, 1995, 2, p. 125–142.


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The issue is not trite; one might ask whether European Union law may have general principles of its own, independently of those of EC law. One might further ask whether there is any such thing as EU law if the EU has no legal personality, and therefore, arguably, no legal existence. But then, how can the EU not exist legally and still provide for the adoption of Framework Decisions that are binding? In this paper, the form ‘European law’ includes, at least, EC law and EU law. We opt for the broader use of European law to include even the law of the European Convention on Human Rights, given that its norms have the status of general principles of EC law, as indicated by Article 6(2) of the Treaty on European Union and Article 52(4) of the Charter. Indirectly therefore EC law can be considered as a serious candidate to the more global concept of European law since it also encompasses the general principles of law following from the constitutional traditions of the Member States, and these constitutional traditions become important official sources of interpretation. First of all, when dealing with ‘direct effect’ one might wonder whether it is possible to give a definition of the term, or some approximation to the conditions of use of this imprecise term. Encyclopaedia and dictionaries are normally dedicated to such endeavour, even if they need to have recourse to a contextual illustration of the use of the term. Wikipedia gives a convenient definition: ‘Direct effect is a principle of European Community law according to which certain pieces of European legislation are enforceable by citizens of the Member States.’ The fact that the definition considers direct effect as a principle of EC law makes my task in this paper easier and less extravagant, but this statement will still need support. The link between ‘direct effect’ and ‘enforceability by citizens’ is stressed in an interesting manner, although the promising term ‘pieces of European legislation’ might need clarification, a task this paper will take up when discussing the relationship between instruments and norms. The Wikipedia article then goes on to explain that ‘direct effect is not mentioned in any of the EC Treaties, and was established by the European Court of Justice in Van Gend en Loos3 in which the court held that rights conferred on individuals by European Community legislation [in that case, by the Treaties] should be enforceable by those individuals in national courts’. All in all, I consider this is a good definition and I shall go by it when analysis direct effect in the context of directives. But rather than indulging in definitions, it might be better to describe the evolution of the concept, especially considering that it is very much systembound, that it is not mentioned explicitly in the sources of the law and that it is the result of jurisprudential developments; on top of this, direct effect might have meanings, expressions and connotations in public international law different from those it might have in EC law. It would therefore be interesting to analyze in depth what type of law – what instrument and what legal order – is behind direct effect, i.e. what is the law of which direct effect is predicated, and who are the actors operating with such law, what is their legal culture and their political 3. Van Gend en Loos v. Nederlandse Administratie der Belastingen Case 26/62 [1963] ECR 1.


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context. This is something this contribution will only do en passant. Let it be noted however that ‘direct effect’ is not usually referred to as ‘principle’ but rather as a doctrine, or a theory, or a quality of the norms, even a disease of Community law, to follow to the classical contribution by Pierre Pescatore.4 The next challenge is to address the concept of ‘legal principles’. We might be tempted again to consider definitions of the term. This task has been recently undertaken by Nils Jareborg5 succinctly but brilliantly, drawing from different sources and languages and giving the concept ‘principle’ a useful content reflecting actual usage in legal contexts. As Jareborg says, we can expect to find principles everywhere, in all sciences – be they normative, descriptive, theoretical, and in all walks of life. A principle seems always to have to do with causality or rationality, with causes or reasons. There are two main meaning clusters to explain the use of the word ‘principle’ and they are both relevant in law: the principle as a beginning, a source, an origin, the basic ground that determines certain results; but it is also something abstract, a basic truth, a motive for action, a point of departure for proof or argumentation, a basic idea used in constructing something abstract or concrete, be it codes, institutions, constitutions, machines, instruments, buildings, cities. Jareborg deals with the relationship between legal rules and legal principles by analysing deontic operators depending on the intensity of the obligation, thus free from any Dworkinian influence.6 A legal principle is always a legal rule – a shouldrule, i.e., a legal rule that is not necessarily infringed if it is not followed. The problem is that principles are not usually promulgated by the legislator; so the question arises, where do they come from? Like most norms, principles are a result of legal reasoning within a framework of instruments recognised as sources. But, they are a special result. Some refer to the content of the rules as if summarising their values whilst others are methodological and referred to legal reasoning itself or to systemic features of law like coherence. Sometimes legal principles seem to be incompatible, contradictory or incommensurable, and according to Jareborg, this might actually be a strength which forces the decision-maker to take a ‘principled’ stance using more sophisticated legal reasoning and eventually making the system more coherent, something we will see below when considering the diverse effects of norms contained in directives as a coherence seeking enterprise by the Court, when weighing and balancing the principle of effectiveness with other general principles like legal certainty.

4. ‘The doctrine of direct effect: an infant disease of Community Law’, 8 European Law Review, 1983, p. 155. 5. ‘A Lecture on Principles’, in Festschrift fu¨r Heike Jung, Nomos, Baden-Baden 2007, p. 361–6. 6. Ronald Dworkin’s classic distinction between rules and principles is best explained in his Law’s Empire, London 1986.


Is Direct Effect a General Principle of European Law? 1.1.1.2

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DIRECT EFFECT: THE CONCEPT

Direct effect has been characterised as the quality of the community norm to create, directly on its own, in the legal sphere of individuals rights which they can then invoke before national judges and which these have an obligation to safeguard.7 Interestingly, it is considered be a quality of norms, a feature leading to invokeability, somehow similar to the definition provided by Wikipedia, which takes it, perhaps, one step further, to enforceability, which begs the question of invoking the norm. The keywords of this definition are: community norm – rights – direct creation of rights – the legal sphere of individuals – invokeability – national judges – and judicial obligation (to safeguard). Some of these concepts will be analysed in greater detail, but let us point from the outset that these keywords involved in the concept of direct effect are the main features of any normative relation: the subject or holder of an obligation; the holder of a right, the time and place in which this obligation can be required and/or has to be performed or this right can be invoked; the object, content and extent of the obligation or the right; the clarity, precision, completeness, unconditional character of the relation; the institutional position of the organ before which the relation is invoked and who has authority to apply it. As we will see in the next subsection this list of features might not exhaust the picture. The analysis of the legal relation involved in direct effect should always start with the obligation, i.e. an obligation on someone, to do or secure something to somebody in some given circumstances and by some time. The intensity of the obligation, its deontic indicator also becomes crucial. But the questions to be solved are not the same in each situation. In some cases the question is, does the individual have the right to sue for performance of the obligation? In other cases the question is, does the Community have the right to enforce the obligation? And there may be a series of different problems to which the same apparent reasoning is applied. Put this way, the questions at issue are not materially so different from questions that arise in national law. ‘Direct effect’ (using that expression in a broad way) provides us with criteria for selecting or rejecting the norms to be applied and for clarifying the scope of judicial competence, an issue of constitutional importance. The discussion of legal effects is then related to the discussion on ‘soft’ law. Legal effect can be seen as an umbrella concept covering not only legally binding force stricto sensu but also other possible legal effects like those of soft law, incidentally coming about by way of the operation of other legal mechanisms, in particular general principles of law and interpretation such as legal certainty. Indirect legal effects would follow from such situations.8 The study of the intensity 7. See Paz Andre´s Sa´enz de Santa Marı´a, ‘Desarrollos recientes de la eficacia directa de las normas comunitaria’, in Alejandro Saiz Arnaiz and Maite Zelaia (eds), Integracio´n Europea y Poder Judicial, On˜ati, 2006, p. 131–156. 8. See Linda Senden, Soft Law in European Community Law, Hart Publishing, Oxford 2004, p. 236– 237. Senden attempts an analysis of such legal effects. However the analysis presupposes that legal effects stricto sensu go uncontested, which is too strong a premise to assume.


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of norms’ effects thus becomes crucial, a task that will be undertaken in Part Two when analysing the effects of norms contained in directives. A norm may, by virtue of the legal relation it governs and of its deontic indicator, bind on all addressees to a full extent and unconditionally, or it may set out a framework of options or recommendations. A purely semantic, pandectic or conceptual approach will give us only an approximation into the complexities of effects of legal relations. Pragmatics, institutional analysis and sociological methods become equally important to grasp the spectrum of effects. 1.1.1.3

CAN ANYTHING NEW BE SAID ABOUT DIRECT EFFECT?

As mentioned in the opening paragraph, there is abundant literature on direct effect in many languages and it becomes difficult to cover it all. Sacha Prechal, one of the authors who has written most extensively about the issue, suggested a few years ago that there was nothing new to be said about it.9 The essential point with respect to direct effect is the possibility for an individual to invoke provisions of Community Law in order to protect his interests.10 Interestingly, Prechal introduces a new keyword in the classical analysis of direct effect, the concept of interests, which will require a more nuanced analysis of the legal relation involved, especially if we consider that interests, like effects can have a spectrum of different degrees or intensities; and national courts do not solely deal with or apply legal norms that are right-creating or obligation-imposing; but they deal with and apply all sorts of legal norms, including those that do not create rights directly but might regulate frameworks in which rights are claimed by different actors in different contexts. To equate the concept of direct effect with the creation of rights, neglecting elements like interests, unnecessarily restricts the spectrum of effects produced by legal norms. Not only is the literature on direct effect overwhelming, so is too the case law on the matter, and it is not always clear. It sometimes provokes new nuances and new declinations of the theory, thus becoming a favourite for treatment by the Advocates General.11 The twists and turns taken by the theory or doctrine of direct effect in the last decade, are an indication that perhaps not all has been said about it. The diversion from rights to intensities of effects depending on interests and access to courts gives scope for innovation and complication. But also, from a different point of view, the doctrine can be related to new issues like the distinction between 9. ‘Direct effect reconsidered, redefined and rejected’, in JM Prinssen and A. Schrauwen (eds), Direct Effect, Rethinking a Classic of EC Legal Doctrine, University of Amsterdam, 2002. 10. Sacha Prechal, Directives in European Community Law, Second Edition, Oxford 2005, Chapter 6. 11. The classic examples are Lenz’s , van Gerven’s or Jacobs’ repeated admonitions to the Court to extend direct effect to so-called horizontal relations, which to a large extent were authoritatively discarded in the Faccini Dori judgment, C-91/92, [1994] ECR I-3325. On this issue, see Anthony Arnull, The European Union and its Court of Justice, 2nd Edition, Oxford 2006, p. 225–228.


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norms and provisions, the defeasibility of norms; or the constitutional issue of the separation of powers in a federal polity like the EU (legislator/judiciary and federal court vs. domestic courts); or even the federal Bundestreue or loyalty principle (art 10 EC, which is the subject of specific contributions to this volume) or the distribution of competences between the different levels of Community governance. The degrees or intensities of effects of a norm might depend on the question whether such norm was meant to be invoked by individuals before domestic courts without the need for further intervention by the domestic legislator. Classical issues of interpretation and legal reasoning are involved in these analyses. Beyond these jurisprudential and constitutional issues, it is still interesting to turn back to the classical distinction in public international law between monist and dualist conceptions of the international law/domestic law relations, or the distinction between self-executing and non-self-executing treaties. Any approach into the issue of direct effect as a general principle of European law must therefore be inter-disciplinary. 1.1.1.4

DIRECT EFFECT AND DIRECT APPLICABILITY; PROVISIONS AND NORMS

‘In every Member State there exists quite a bit of law which is not enforceable in the courts because those rules were not meant to give the private individual enforceable rights, or because they are too vague or incomplete to admit of judicial application’. This intriguing statement made by professor Winter in his seminal article on direct effect,12 opens up fruitful alleys for legal theory: problems on the nature of rules and norms, problems of interpretation and intention, problems of vagueness, completeness, problems of ineffectiveness of laws, questions of judicial activism or restraint, the difficulty with unenforceable law which is however still law, are some of the issues raised by the quote and by direct effect generally. The article distinguished between applicability and effect, and in many regards the distinction is still rather useful, I shall try to explain this distinction succinctly13 by relating it to another distinction, that between provisions and norms. Many contentious theoretical assumptions are presupposed in the following tract and not all of them can be untangled. Direct applicability is a feature of the instruments of law, the sources belonging to the legal order containing officially approved raw ‘texts’ or pre-interpreted provisions. The instruments contained in the official sources can be binding as in e.g. regulations, or non-binding as in e.g. recommendations; and they can be directly applicable – or self executing – as in e.g. regulations or not directly 12. Jan Winter, ‘Direct Applicability and Direct Effect. Two Distinct and Different Concepts in Community Law’, (1972) 9 Common Market Law Review 425. 13. I have dealt with these issues in greater length in J. Bengoetxea, ‘Direct Applicability or Effect’, (hereafter DAOE) in A True European, Essays for Judge David Edward, Mark Hoskins and William Robinson (eds), Hart Publishing, Oxford 2003.


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applicable – or non self executing – as in e.g. directives, which normally require implementation or incorporation into domestic or internal law, something which will, again, be done according to the internal doctrine of official sources. When the instruments are directly applicable or self-executing, as in the monist tradition, there is a direct penetration of an instrument belonging to one legal order– European Community law or Public International Law – and of all the norms contained in that instrument into a different legal order, the domestic or municipal legal order of the state. As is well known, directives are special instruments or sources of EC law in that they bind as to the results to be achieved in the Member State legal order; they contain obligations of result and the underlying logic of their transposition is to incorporate not the text of the directive but rather the normative results they set out. By contrast, direct effect is a feature of the norms contained in such instruments or sources. In this sense, the norms are the results of normative interpretations of the texts contained in the official sources, in the (normative) provisions. These norms, thus interpreted, ordered and systematised, make up the legal system. Legal Norms take their meaning and place in the legal system by entering into relationships with other norms; these norms have a systemic relation of hierarchy/ generality/territoriality. The norms are thus derived from provisions or groups of provisions or from ‘other sources’, i.e. non-written sources like principles. Yet, it is always necessary to examine whether the normative content of an act corresponds to the textual form it has adopted, something that the Court of Justice detected with sufficient lucidity in Grimaldi.14 Norms, will produce effects on individuals, an on all their addressees, depending on many different aspects: their clarity and precision, their unconditional or absolute character, the nature or institutional position of their addressees, their time limits, and other factors like jurisdiction, territory, and last, but not least, its relations to other norms, which might lead to the norm being defeated, reformulated or to the norm defeating other norms. The Legal System in the EU is complex; even more so than the Legal System in the Member States because it deals with federal relations between different systems, and has to work out its own relations with other systems of international law. There is a complex division of competences and even where Member States retain their competence on a specific issue, they still have to respect and observe EC law, and EU law and the ECHR law. There is therefore an ultimate unity of the legal system, but this is an interpretative unity that does not only depend on the hierarchical relation between European law and national, state laws. Whether or not the principle of primacy is expressly mentioned in the constitutional or foundational texts15 as a basic principle governing the relations between the legal systems involved, there is still the very complex issue of competence over 14. Grimaldi v. Fonds des maladies professionnelles Case 322/88 [1989] ECR 4407. 15. The heated debates over the question whether the Constitutional Treaty or the ‘reform Treaties’ should explicitly mention the primacy of community law have more to do with symbols and tactics than with debats on defeasibility of domestic law and the structural principles of the European legal system.


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competence, of uniform application of the law, equivalence of rights and procedures and these are all systemic principles affecting the interpretation of norms and their effects . . . 1.1.2

DIRECT EFFECTS IN EUROPEAN LAW: FROM SOME EFFECTS TO FULL EFFECTS

1.1.2.1

DIVERSE EFFECTS

Classical works on direct effect essentially distinguish two varieties of direct effect: vertical direct effect occurs when the norms of EC law are invoked in legal relations between individuals and the state, understood in a wide sense – as covering any of its organs or emanations exerting authority or functions attributed to the state as in services of general public interest16 – and horizontal direct effect occurs when the norms of EC law are invoked before and enforceable not just upon the state but also before and upon other individuals. Horizontal direct effects of norms obtain when these norms are contained in instruments that can be invoked by private parties as against other individuals. Such is the case for norms contained in Treaty provisions, or in Regulations. In vertical relations, a nuance can next be introduced depending on whether the norm is invoked upwardly by an individual against the state or downwardly by the state as against any individual. The state is treated as an institutional unity for the purposes of EC law, which in this respects follows a principle of single personality of the state, as in Public International Law. Vertical upward effects presuppose the existence of a precise, clear, unconditional obligation on the State, which leaves no scope for discretion regarding the scope, the addressee and the extent of the obligation. Effects are here understood as enforceable ‘subjective’ rights invoked before the courts on the basis of an obligation binding the state either to the individuals directly as would be the case for norms contained in instruments or sources that are directly applicable – Treaties, regulations, decisions – or to other states and to the EC as would be the case for norms contained in instruments or sources that are not directly applicable, i.e. directives. In this second case, the source of the obligation binding the state and giving rise to the expectation of a ‘subjective’ claim or right on the part of individuals is the principle of pacta sunt servanda, which obliges the state to honour its obligations towards other states and towards the supra-state entity of which it is a member, and individuals then directly rely, as interested third parties, on the obligations binding the states. The main normative relationship governed by the directive has the Member States as its addressees. Therefore, any claim made by an individual to derive a right from such a normative relation will be a claim on an implied or logical consequence of the primary norm addressed to the Member 16. Foster v. British Gas, Case C-188/89 [1990] ECR I-3133.


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State, it would be a claim based upon a derived norm, as a result of a systemic interpretation of the primary normative relationship. Vertical downward effects operate in a different manner. There are instruments or official sources of law that are capable of imposing obligations, duties or prohibitions on individuals. Statutes and Acts of Parliament are the classical example in state legal systems. In EC law, these instruments are the Treaties themselves and regulations and decisions. These instruments are directly applicable, i.e. they enter the law of the Member States directly and without further need for incorporation. Therefore the obligations they might contain are immediately applicable and enforceable upon their addressees, including any individuals to whom they might be addressed. On the other hand, directives are sources which do not immediately or directly penetrate the legal orders of the Member States; they are addressed to the Member States and they need incorporation into their laws in order for the norms contained therein and creating possible duties, obligations, prohibitions upon individuals to become enforceable upon them. Estoppel effects derive from the non applicability of directives. An individual who is summoned before national authorities or the courts in order to execute an obligation allegedly concerning this individual derived from a norm contained in a directive can bring in an exception producing estoppel effects: a directive has to be duly implemented in the law of the Member State; otherwise it cannot bind the individual. From the perspective of the state, it is prevented from relying against an individual upon a directive that it ought to have implemented; the state cannot invoke its own wrong (nemo auditur or even venire contra factum propium).17 From the perspective of the individuals, they have a legitimate expectation that all obligations imposed against them are contained in instruments that directly apply. In other words, individuals can ignore instruments that are not addressed to them but only to Member States. The principle of legality applies, nulla poena sine lege, and since there is no lege, no law proper, there can be no poena, no obligation. The effectiveness of the directive is checked by the rule of law principle of legal certainty. A similar logic applies to the situation concerning the horizontal effects of unimplemented directives: they cannot produce obligations directly on individuals and therefore an individual cannot invoke (the rights deriving from) those obligations directly against another individual.18 This leaves the potential holder of the right in a prejudiced situation which is provoked by, but still depends on the behaviour of the defaulting Member State; if it does not implement the directive in its legal order, individuals will not be able to rely on whatever rights the directive’s norms might contain at least as regards horizontal relations. As a result of the Member State’s failure to implement, the individual is left without the right contained in the directive’s norms. The existence of this right is dependent on Member State positive action of transposition of the norm into its own law.

17. Oficier van Justitie v. Kolpinghuis Nijmegen, case 80/86 [1987] ERC 3969. 18. Marshall v. Southampton Area Health Authority, Case 152/84 [1986] ECR 723.


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The Member State is given a deadline to adopt such action19 and if it does not respect the deadline, it can be said to be in breach of its Community law obligations. It seems rather coherent therefore that the Court should have developed the doctrine of Member State liability in these situations.20 The rationale behind this development is therefore to maximize the effects of unimplemented norms of the EC legal system existing only in directives addressed to Member States that would otherwise be handicapped norms producing no effects until such time as they were completely and perfectly incorporated, almost resuscitated, into the internal legal system. A new type of effect follows therefore from the unimplemented norm of the directive, a reparation effect that can be invoked before the defaulting Member State. This reparation or correction effect will later spread into other situations of breach of EC law, giving rise to the general principle of Member State liability for breaches of EC law. Also coherent with the rationale of giving maximum possible effect to norms of EC law contained in directives is the doctrine of conform interpretation developed by the Court and which leads to a situation close to horizontal direct effects. In principle the norm contained in the directive foresees a legal relation, as a result to be achieved. In the normal situations, the legislator of the Member States will adopt new instruments to adapt its law to make sure that it regulates the legal relation in the same manner as the directive. But it might be the case that the internal law of the Member State already regulates the legal relation in the same manner as the directive, in which case this Member State will have been in compliance with the directive since its adoption. It might however be the case, that the Member State adopts no measures to transpose the directive and its internal law does not regulate the legal relation in a way that matches the directive’s norm exactly. The question can then be asked whether its internal law can be interpreted in a manner compatible with the legal relation regulated by the directive.21 If provisions of internal law are susceptible of more than one interpretation, which is not something exceptional, and if one of the possible interpretations of those provisions renders a norm which is equivalent to the legal relation which it is the object of the directive to bring about, then this interpretation should be preferred over others because it manages to give effect to the directive without straining internal law in a manner contrary to the principle of legal certainty. This principle of conform interpretation also pays tribute to the rationale of maximizing the effects of EC law, but it is clearly limited by other general principles like that of legal certainty: a provision of internal law P cannot be strained to convey a norm N which is in conformity with the norm of the directive N’ but which cannot be 19. Usually, this Member State will have explicitly agreed to this deadline by negotiating the directive in Council, unles it was outvoted in the adoption of the act, which is quite rare since Member States tend to be quite accommodating of other Member States’ regulatory idyosincracies. 20. Francovich and Bonifaci v. Italy, Joined cases C-6/90 and C-9/90 [1991] ECR I-5357 and Faccini Dori v. Recreb Srl Case C-91/92 [1994] ECR I-3325. 21. von Colson and Kamann v. Land Nordrheinland-Westfalen, Case 14/83 [1984] ECR 1891 and Marleasing, Case C-106/89 [1990] ECR I-4235.


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considered as an acceptable interpretation of the provision P. This takes us to a background theory and doctrine of interpretation that goes beyond the scope of this contribution but is still related to the issue of discretion, activism and restraint and of legal culture.22 The effects of time on the norm’s operation is another interesting possibility in the spectrum of effects of norms of EC law, in this case, of norms contained in directives. There are other, interesting effects that can be produced by norms contained in directives that have not been implemented, or that have been incorrectly implemented, or even those that have been implemented. Even after implementation has occurred, the directive still is binding upon its addressees, the Member States, and as a result, any norm contained in the directive maintains its legal existence, its validity. The norm does not disappear simply because it will have been transposed or incorporated into internal, domestic law. Thus a Member State introducing a new regulation into its legal order will have to ensure that it respects the norms contained in EC law, including, of course, its directives that have not been explicitly or implicitly derogated. Likewise, conform interpretation will always hold in these situations and judicial review of internal law by reference to its conformity to EC law, including transposed directives might be an available option to control the validity of a norm of internal law, which can still be defeated by the norm contained in the directive. A related issue is that of the effects of the norms contained in directives which are not yet implemented but the transposition deadline of which has not yet expired. The question is when are the norms contained in the directive considered to enter into existence so that they produce some effects. The issue was raised in Inter-environnement Wallonie, a case23 which involved a regulation adopted by the Walloon region in direct contradiction with a directive during the vacation time foreseen in the directive and the question was whether Member States have an obligation to refrain from adopting legislation that contradicts a directive that has been adopted and published in the Official Journal and thus addressed to the Member States but where the deadline for transposition had not yet been reached. The answer by the Court was consistent with the concept of diverse effects of norms of EC law and with the underlying rationale of effectiveness. The norms contained in the directive exist and are valid from the moment of their adoption and as such they produce some effects like precluding the adoption of contrary norms, or defeating them or allowing for conform interpretation. They do not create enforceable obligations as against the Member States until the deadline for transposition has expired but they can be used in the control of validity of acts adopted by the State organs. Similarly, the obligations which directives impose on Member States can give rise to diverse situations which some authors call substitution effects or exclusion 22. I have dealt with this issue in different publications, most recently in ‘The Scope for Discretion, Coherence and Citizenship’ in Ola Wiklund (ed.) Judicial Discretion in European Perspective, Norstedts Juridik/Kluwer Law International, Stockholm 2003. 23. C-129/96 [1997] ECR I-7411.


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effects, or even incidental or triangular effects24 and which involve the possibility of invoking the norms of a directive with effects upon other individuals. These situations analyse the consequences in the legal relationships obtaining in the internal legal order when as a result of the operation of a norm contained in a directive internal norms contained in primary or secondary legislation in administrative acts or decisions are struck down, thereby affecting the interests of those individuals concerned by the said acts. Sometimes the situation is such that a different universal or individual norm of the internal legal order is activated (substitution effects), but other times, no other internal norm regulates the relationships (exclusion effects). The effects of these situations on individuals are incidental, tangential or co-lateral, and this is why they have sometimes been referred to as inverse or ‘indirect’ direct effect. The effects of the norm N1 contained in the directive are in all these cases to defeat the operation or the existence-validity of some norm of the domestic legal order N2 with the result that the legal relation governed by N2 is altered or transformed. Whether this might lead as far as to, e.g. annul a theretofore valid contract is something for internal law to determine according to its law on contracts, but from the point of view of the EC legal system what obtains is merely the operation and effectiveness of its norms. Certainly all provisions but also, and this is the strong claim, legal norms of the legal system would then be only prima facie norms, they would be presumed to have a certain extent, normative meaning, validity and effect until such time as some other norm would defeat their operation, or restrict their scope in a specific case of application and (re)interpretation.25 As a result of a norm of internal, domestic law being defeated it might be that a gap obtains, but not necessarily because other existing norms, including principles, might cover the situation or might be interpreted in accordance with the directive. Interesting consequences follow for the existence of norms. The type of defeasibility we are dealing with is not one of hierarchy between the legal orders, but rather one of effects, it is based on effectiveness more so than on hierarchical superiority or primacy, a term the Court has positively avoided in favour of effectiveness. Thus the normative consequence which obtains from the operation of norms of EC law (including, of course, norms contained in directives) as regards incompatible, inconsistent, contrary or contradictory norms of the domestic law of the Member States is only the non-application of the domestic norm: this 24. Referring to cases like Smith & Nephew and Primecrown, C-201/94 [1996] ECR I-5819; CIA Security v Signalson and Securitel C-194/94 [1996] ECR I-2201; Luxembourg v Berthe Linster e.a. [2000] ECR I-6917; Lemmens C-226/97 [1998] ECR I- 3711; Unilever Italia SpA v Central Food SpA, [2000] ECR I- 7535; Wells C-201/02, judgment of 7January 2004 – some of them involving contractual relations, others not but all of them concerning the intervention of administrative authorities in the exercise of economic activites by private parties, licenses, authorisations, of different sorts- authors like Arnull, op cit. Or Stephen Weatherill, Cases and Materials on EU Law, Oxford 2006 use these terms. 25. On defeasinility see Giovanni Sartor, ‘The Defeasibility of Legal Norms’ in C. Ciampi, F.Socci, G. Taddei Elmi (eds), Atti del V. Convegno InternazionaleI DG Verso un sistema esperto giuridico integrale, Firenze 1993, Padova, Cedam 1995.


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incompatible norm is left unapplied, as a result of the effectiveness of the norms of EC law (and the principles of primacy and uniformity) and the defeasibility of domestic norms. The result is neither absolute invalidity (ex tunc inexistence) nor even annulment (ex nunc invalidity but with the possibility of some effects remaining) of the domestic norm. Invalidity would be the normative consequence if a case was brought before the Court of Justice to have the incompatibility of the domestic norm with EC law and the infringement of the Member State declared. The cases can be contemplated from the standpoint of individuals relying as against a Member State on norms contained in as yet unimplemented directives not with a view to deriving individual rights but rather with a view to reviewing the validity of internal laws and administrative acts, something from which individuals might derive special interests. Thus, an individual does not have a subjective right to an environmental impact assessment or to the result of an assessment one way or another, but it might have an interest in obtaining an injunction to stop a given contract from execution if the project would have required an impact assessment but did not, and was thus vitiated.26 Direct individual rights are out of the question in these cases and direct individual interest is very weak, unless one accepts that individuals have a general ordre public interest in ensuring the effectiveness of norms. If that were the case, as I have argued elsewhere,27 a new right of the citizen could be in the making, a right to rely on the rule of law in order to make sure the legal order of the EC is respected and becomes effective. Individuals would become custodians of EC law, and potential allies of the Commission as watchdog of the implementation of EC law. But these far reaching proposals should not lose sight of the fact that when individuals are being given access to the courts to invoke norms of EC law, it is not just citizens but all types of individuals, including companies, and that these very individuals who are given access to national courts are being denied access to the Court of First Instance to challenge (directly applicable) instruments of EC law unless directly addressed to them or individually concerned by them.28 The cases can also be contemplated from the standpoint of the Court of Justice. The Court seems to be gestating new ways of understanding the rule of law, judicial protection, access to justice and effectiveness of the norms of EC law. The Court does play to some extent the role of a political powerbroker using litigation as a reallocation of power between institutions, between different types of litigants or between different layers of government;29 but above all, it is setting out the conditions in which the norms of the EC legal system operate and produce effects in the different legal relations; it is defining the spectrum of effects of legal norms,

26. Case C-72/95 Kraaijeveld [1996] ECR I-5403. 27. DAOE, see fn.11. 28. The restrictive interpretation of direct and individual concern of Article 230 was confirmed in UPA v Council, Case C-50/00P [2002] ECR I-6677. 29. Francis Snyder, ‘The Effectiveness of European Community Law: Institutions, Processes, Tools and Techniques’ in 56 Modern Law Review, 1993 p. 19.


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and it is striking a balance between different and sometimes conflicting general principles of EC law. 1.1.2.2

EXCURSUS – COULD FRAMEWORK DECISIONS PRODUCE DIRECT EFFECT?

It would be interesting to analyse how the Court will interpret the effects of framework decisions, which operate like directives but are not to produce direct effect, according to the EU Treaty.30 Since direct effect is a feature of the norms contained in the different instruments but not of the instruments themselves, one could try out a rather provocative answer and hold that framework decisions need not ‘entail direct effect’ in order for its norms to produce direct effect. But a more plausible construction of the provision, closer to the probable intention of the lawmaker and to the e´conomie or systemic interpretation of the article would have to accept that since the framework decisions have already been denied direct applicability, as they still need transposition into the legal order of the Member States, when the Treaty further rules out the possibility of their producing direct effect, it is most probably referring to the norms contained in the framework decisions. The next question must therefore be to ask what is meant by direct effect, since what we see is a diversity of effects of norms of European law. One possible interpretation of the provision is that individuals cannot derive ‘subjective’ rights from such norms, which are addressed to the Member States, but this need not mean that none of the other effects of the norms – conform interpretation, substitution effects, etc. – can be deployed since such an extreme interpretation would be counter to the general principle of effectiveness of EC norms. Reparation effects might be ruled out as well, but only because they depend on the existence of a subjective right. An individual could therefore bring an action before a national court, invoking a norm contained in a framework decision addressed to a Member State in order to defeat the operation of a nom of the Member State legal order. This would extend to estoppel situations of downward vertical direct effect. It would be interesting to see if national courts would declare such actions as admissible and, eventually refer to the Court of Justice a preliminary question for a ruling on the effects that may be produced by (the norms contained in) such acts. As we shall see below, Pupino is a step by the Court in the right direction, perfectly in line with its case-law on the diverse effects of EC norms.

30. According to Article 34(2) (b) TEU, framework decisions, which are adopted for the approximation of the laws and regulations of the Member States, ‘shall be binding’ upon them ‘as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct direct’.


18 1.1.2.3

Joxerramon Bengoetxea EFFECTIVENESS

AS A

GENERAL PRINCIPLE

OF

LAW

We have seen how the development of diverse effects shows a concern, on the part of the Court to give maximum effect to the norms of EC law while at the same time seeking to find a balance with other relevant general principles of law. As L. Gormley explained in the course of the Hasselbacken Conference, the loyalty principle imposing an obligation of mutual cooperation and assistance contained in Article 10 of the EC Treaty, entails, in the first place, an obligation on all authorities and officials to abstain from measures hindering the effectiveness of EC law and to abstain from measures hindering the process of integration. Could one venture to say that effectiveness is behind the very idea of law as a normative action-guiding system; i.e. that it is in the nature of norms understood as action guiding and action justifying reasons? The argument would then postulate that norms are results-oriented in trying to regulate and justify behaviour, and in securing remedies and sanctions and that legal operators will act and adjudicate upon them in order to achieve such results. The underlying functional-utilitarian logics of law and legal systems would then predicate that all norms are enacted to produce effects, that the stuff of the law, sources or instruments and norms are result-oriented and that this places the weight of legal reasoning on the effects, repercussions or consequences of norms, be they intended or unintended. Effectiveness and validity of norms regulating legal relations is the underlying rationale of the Court, a mixture of Kelsen’s concept of the legal system with Ross’ legal realism. But the law is also the focus of individuals interacting, of institutions enacting new norms, of officials – the staff of the law – applying secondary rules of law, rules of recognition, rules of change and rules adjudication31 and of legitimacy achieved through rationality of practices and discourse. As regards Courts, their adjudication and law-recognition functions depend on and develop through policy inputs made by litigants invoking . . . the stuff of the law – norms and principles containing rights, obligations, under time, space, personal and material conditions. Take an issue like soft law. Is it not called law, by analogy, precisely because the norms in question, although contained in or derived from instruments that are not officially recognised, according to the accepted rule of recognition of a legal system, produce effects equivalent to those produced by legal norms? They are considered to guide behaviour and to justify action, and if behaviour deviates, they are used as an acceptable reason for criticism and some form of sanction, although perhaps not enforceable sanctions. Arguably then the key question is not that of effect and effectiveness but rather enforceability of sanctions and control by courts and other staff of the law. Thus, the Court in Grimaldi confirmed that recommendations do not and cannot create rights which individuals can invoke before a national judge but that they cannot however be considered as lacking legal effects, as not producing no legal effects at all. The slippery notion of soft law is echoed in 31. The reference is of course to H.L.A. Hart’s The Concept of Law, Oxford 1961.


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Snyder:32 ‘Soft law are rules of conduct which, in principle, have no legally binding force but which, nonetheless, may have practical effects’. This nuanced definition can itself be characterised as soft and it would require clarifying the conceptual and theoretical presuppositions on which it seems to be based: what is ‘legally binding force’? What are the ‘practical effects’ they may (and therefore may also not) have? And what are rules of conduct? These are deeper aspects of legal culture and sociology of law that go well beyond the scope of this contribution. But they imply a shared understanding by the personnel that deals with the law and governance, and a shared rule or doctrine of recognition of the sources of law. In European law, these common normative aspects of legal culture would be shared by an elite and would involve the commitment of governments to formal norms and procedural rules as a strategy for conflict prevention and, eventually, dispute resolution. Since the end of WWII, Western European elites developed a seemingly startling ‘cult of the supranational rules’, placing emphasis on the limitation of absolute sovereignty through legal means, especially international law. The ECJ is equally involved in tackling challenges, which are presented to Community law by the proliferation of ‘soft’ law. Even according to formalist understanding, ‘soft’ law comprises every category of act that, though identified as not binding, is capable under certain circumstances of having (some sort of) legal effect. According to the accepted standards of ECJ judicial practice, ‘soft’ law is not enforceable in courts and is not generating rights and obligations in judicial proceedings, but it can still have legal impact on the proceedings before of courts as supplementary help to the interpretation of ‘hard’ law. In such a way, atypical instruments are a potential source of law, although in a subordinate position. Accordingly, since Grimaldi, the ECJ has already engaged with ‘soft’ law, albeit in a selective and hardly systematic manner. We seem to be reverting back to the theory of effects. What is the difference then between, on the one hand, the effects produced by norms contained in unimplemented directives or any other of the mitigated effects described in the previous section and, on the other hand, the effects produced by soft law? The first are contained in instruments which belong to a very special category: official sources of law which are not however directly applicable whereas the second are to be found in instruments that are not official sources of law, although some of these, namely recommendations and opinions, are in fact listed by the Treaties as (non legal) instruments of the European Communities. The difference is dictated by the very rule of recognition of EC law and the theory of sources it carries. Effect and effectiveness seem therefore to be a rationale acquiring the category of a defining principle of European law. In the joint contribution to the predecessor of this Conference on the General Principles of EC law, Ola Wiklund and I33 tried to sort out different possible meanings of the concept ‘general 32. ‘Soft Law and Institutional Practice in the European Community’, in M. Stephen (ed.), The Construction of Europe, Essays in Honour of Emile Noe¨l, Kluwer, The Hague 1993. 33. Ola Wiklund and Joxerramon Bengoetxea, ‘General Constitutional Principles of Community Law’, in Ulf Bernitz and Joakim Nergelius (eds), General Principles of European Community Law, Kluwer, The Hague 2000, p. 119–142.


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principles of law’. Our intention was, partly, to go beyond classical approaches to general principles of EC law34 as substantive or formal generalizations where the stress is precisely on the generality and the unwritten character of principles, and move into the functionality of interpretative recourse to principles as (supplementary) legal norms of especial value. In this sense, principles ensure effectiveness of the law by allowing the interpreter to come up with a solution based on ‘principle’ that ensures and furthers the aims of integration. The underlying logic of recourse to principles would then be one of efficiency. This blunt statement could deliver two contending readings. The politically correct reading has it that general principles reflect some sort of objective source which needs interpreting. ‘In no legal system is it possible for legislation or other written sources of law to provide for every eventuality. General principles of law constitute a fund of knowledge tried and tested by the national and international practice of states and international bodies which must be utilized if the Court is to escape the reproach of a denial of justice and the stifling effects of non liquet on the development of Community law.’35 The more critical reading (i) inquires about this fund of knowledge and the power this knowledge encompasses; (ii) it sees recourse to principles as a hidden and disguised exercise of discretion and (iii) it emphasizes the function of principles in argumentation, operating as jokers of systematic and teleological argumentation. General principles are then used as logical premises of the legal order – closure clauses – inherent to the treaty system and coherent with the process of integration or as shorthand of substantive justifications of rules, or as structural doctrines of interpretation and reasoning which, like effectiveness or effet utile, ensure the preservation and usefulness of the legal system, but does so as a the result of a vigilant exercise of discretion on the part of the legal operators, courts and jurists involved in the processes of litigation, argumentation and application of the law. By resorting to general principles, judges are collaborating with the rational legislator, actively engaging in furthering the aims of the law and integration. One example is Mangold36 where the Court stated that it is the responsibility of the national court, hearing a dispute involving the principle of non-discrimination in respect of age, to provide, in a case within its jurisdiction, the legal protection which individuals derive from the rules of community law and to ensure that those rules are fully effective, setting aside any provision of national law (of whatever rank) which may conflict with that law. What better example of the defeating effects of European law? Mangold is a good example of cooperation between the European legislator and the national judge and of the underlying federal logics 34. I shall limit myself to two references in this approach: T. Tridimas, General Principles of EC Law, Oxford 1999, published just a few weeks before the 1st Conference on General Principles of EC law held in Malmo¨ and more recently, just before the 2nd Conference, X. Groussot, General Principles of Community Law, Europa Law Publishing, Gronningen, 2006, See also, esp. as regards fundamental rights as general principles, A. Arnull, op.cit. Chapter 10. 35. Nicholas Emiliou, The Principle of Proportionality in European Law. A Comparative Study, Kluwer, The Hague 1996P. 124-125p. 36. Case C-144/04, judgment of 22 November 2005, para 77.


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of the EC legal system even if this leads to friction between the national judge and the national legislator. The federal cooperation between the ECJ and all decentralised courts, again, has effectiveness as its rationale. Effectiveness is indeed a general legal and constitutional principle of European law. And it extends to the law of the EU, not only that of the EC. Thus in Pupino,37 the Court stated that irrespective of the degree of integration envisaged by the Treaty of Amsterdam in the process of creating an ever closer union among the peoples of Europe within the meaning of Article 1(2) EU, it is perfectly comprehensible that the authors of the Treaty on European Union should have considered it useful to make provision, in the context of the Third Pillar – Title VI of the Treaty on European Union, dealing with police and judicial cooperation in criminal matters – for recourse to legal instruments (i.e. framework decisions) with effects similar to those provided by the EC Treaty (i.e. directives), in order to contribute effectively to the pursuit of the Union’s objectives (i.e. effectiveness). This is a very blunt statement extending to the Third Pillar instruments effects similar to those of the First Pillar, especially judicial review and access to remedies. The argument developed in the excursus of the previous section would fit very well with this extension. In doing so, the Court is obviously enhancing effectiveness of EU instruments, but it is also seeking to ensure legitimacy by bringing the Third Pillar under the rule of law, something which, on a first, literal reading of the provisions of the EU Treaty, Article 35, paragraphs 1 and 2, is not obvious as regards framework decisions and even less so as regards Common Positions. The Court was sincere in recognising that there was no complete system of remedies in the Third Pillar, especially since judicial review of EU instruments is wanting because jurisdiction of the ECJ is optional for Member States and some instruments, although listed as official sources of EU law, are not subject to review. Perhaps then it is not just about effectiveness; perhaps there are other rationales behind the Court’s decision-making, like Member State sovereign prerogatives or like the European (Community) rule of law principles like conform interpretation, legal certainty, loyal cooperation, procedural autonomy, equality of treatment, effectiveness of remedies, etc. If effectiveness of the instruments and of the norms or effectiveness of Member States’ prerogatives went unbalanced we would all lose from the standpoint of the rule of law and fundamental rights. But, paradoxically, this is again a call to a new overall approach to effectiveness itself, to maximizing the effect of Fundamental Rights as principles and of the Charter as an instrument containing Human Rights norms. As regards the 3rd Pillar, cases like Pupino, or Segi38 give signs that the Court is following this courageous line and is 37. Case C-105/03 [2005] 2 CMLR 63, paragraph 36. 38. Cases C-354/04P, Gestoras Pro-Amnistı´a et al v Council and C-355/04P, Segi et al. v Council, judgment of 27 February 2007 (nyr) See a review of this case in Joxerramon Bengoetxea, ‘La lucha contra el terrorismo en los confines de la CE, la UE y el CEDH’, 724 Actualidad Jurı´dica Aranzadi, 22-March 2007. This appeal suffers, like almost all cases decided on appeal from a decision-making strategy which tends to disguise the real issue or the serious problems that some of the judgments of the Court of First Instance have. The judgment of the CFI is treated by


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concerned that the EU should live up to rule of law standards. Thus, paragraphs 47 and 59 of Pupino, states that the principle of conform interpretation has a limit in contra legem interpretation of national law but requires the national court to consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision, which in any case has to be interpreted in such a way that fundamental rights, as contained in the European Convention and interpreted by the Strasburg Court, are respected. Perhaps not direct effect, but at least some other effects are produced after all by (the norms of) framework decisions. The Court of Justice is striking a balance between effectiveness and legitimacy, but legitimacy can be itself seen as the effectiveness of fundamental rights and other material principles along with discourse rationality i.e. rational decision-making.39 We reach a startling conclusion i.e. that everything in the Treaty is about effectiveness, even that which is seeking to achieve legitimacy through respect to general principles of law. The question will then be one of weighing and balancing the principles involved and deciding which of them will be given greater efficiency or effect. Perhaps then the finding that efficiency is the main rationale of European integration is a rather shallow statement or a formal maxim that needs to be completed, almost like pure utilitarian ethics. The point is then to decide on the priority of aims and objectives of integration: market access; fair competition, equality between men and women, non-discrimination . . . maybe not fair competition, when the Reform Treaties enter into force. Who will decide, in a weighing and balancing process involving contending principles, which of them should trump the other and on what grounds and to what effects? Can this be fully entrusted to the Courts, or to technocrats, or to the legislators? Is this not a matter for rational discourse and public debate in ideal conditions of communication? Perhaps in the early stage of European integration, efficiency and effectiveness could go it alone because they were accompanied by a sort of ‘permissive consent’ of the population and subjects tended to trust the diplomatic and bureaucratic elites running the Common Market because it was efficient and effective, because it delivered. Now the citizens and the enlightened public want to have a closer look and have a say and at least some persons interested in European integration, not just scholars and not all scholars, take a real interest in the legitimacy issue raised by the alternative, Habermasian view: to achieve legitimacy through rational discourse, democratic participation and control. This ambitious alternative implies empowering and engaging citizens largely through better information, the Court of Justice as a sort of salami. If the salami contains stains that indicate degradation of quality, then the salami is sliced and the pieces that show the stains are removed or indivually considered to be negligible, the salami is then recomposed without those pieces and presented as a perfectly fit salami. The heads of claim and moyen are like the slices and the tendency of the court is to avoid addressing the ratio of the judgment. The analysis by the AG in the Segi case suffers from the same approach, which has become the standard way to analyse pourvois by the Court of Justice. 39. On rational discourse in adjudication, see my contribution to the Jung Festschrift, op.cit., ‘Quality Standards in Judicial Application. The European Court of Justice’, p. 47–62.


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enhanced understanding and raised awareness. For others, the engine has become so complex and puzzling that as long as it delivers results, it will be granted the benefit of the doubt, that minimum but sufficient level of legitimacy afforded by benign neglect: legitimacy achieved by effectiveness of results? The engine is left to operate on Luhmannian-Weberian terms, according to its own internal coding and procedures as managed by technocrats. These are current queries to which few authoritative answers can be given.


Direct effect as a Principle of EU law  

This paper discusses the principle of efficiency in EU law, one of the leit motifs of the doctrine on direct effect. It draws from the gener...