Jean Monnet Center at NYU School of Law

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II. Protection Revisited

Dual vigilance tells us who can be regarded as having an interest in Member States complying with their Community obligations. Clearly, the Commission, as guardian of the Treaty, has an interest in Member States complying with their Community obligations. In bringing administrative proceedings, the Commission need not show the existence of a specific legal interest since:

The Commission, in the exercise of the powers which it has under Articles 155 and 169 of the Treaty does not have to show the existence of a legal interest, since, in the general interest of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States and to note the existence of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end. [63]

This however does not, in itself, suffice to preclude or exclude the idea that individuals too should be recognised as having such an interest [64]. It is proposed that the true meaning and significance of dual vigilance, should be an acceptance that individuals too have such an interest. It is suggested that individuals be regarded as guardians of the Community interest, in so far as overseeing actions by Member States, ensuring that Member States comply with their Community obligations and fulfil their duties, in turn guarantees that individuals are not deprived of the benefits that would accrue to them if Member States complied with their Community obligations. In other words, private enforcement of Community obligations in the different Member States and appropriate sanctions for breach of Community law are in the interests of individuals, and companies, for they ought not to be deprived of the benefits which integration is meant to bring.

"the fact that under Article 12 it is the Member States who are made subject of the negative obligation does not imply that their nationals cannot benefit from this obligation." [65]

The extent to which individuals, like the Commission, are guardians of the Community public interest, are entitled to promote the Community public interest, and have an interest in securing the benefits of integration, will therefore be examined. Beforehand, the relationship between direct effect and individual rights will be revisited.

II. 1 Protection of individual Rights

In the 35 years since van Gend en Loos Community law has been accepted as an integral part of the legal systems of the Member States. Belonging to the Community means accepting that the whole of Community law is incorporated into national law and available in legal proceedings before national courts. Individuals have been bringing claims before national courts so as to secure compliance by Member States with many of their Community obligations. It is no longer disputed that Community law may be invoked before national courts - what was referred to as direct effect as a constitutional principle [66]. What remains a matter of some contention and difficulty is what litigants are entitled to expect from national courts. This problem is often couched in terms of the qualities or characteristics of the Community law provisions invoked. The literature often contains references to concepts such as horizontal and vertical direct effect [67]. Nevertheless, it is contended that these issues and this nomenclature can often detract from an understanding of this area of law which, put naively, involves consideration of the different duties imposed on national judges. And if the language of rights must be used, then it is suggested that the various duties imposed on national judges correspond to rights for individuals.

It seems essential now to make a number of remarks on the use of terminology. In a Community sufficiently sophisticated to make clear and precise distinctions between day-old chicks, breeding poultry, productive poultry and slaughter poultry [68], some clear and precise distinctions should also be made in relation to basic and important concepts governing the relationship between Community and national law, or relating to the effects to be attached to a particular Community law provision in the national legal systems. In this respect, one can only observe that direct effect has a variety of confusing meanings [69]. To begin with, it refers to the fact that, Community law is part of the national legal systems and can be invoked before national courts [70]. As daily practice suggests, Community law is invoked for a variety of purposes. However, direct effect is also used to refer to the capacity of a specific Community provision to be applied directly [71], as it stands. In practice, few Community obligations translate into legally perfect provisions, and accordingly national courts have to seek guidance as to the exact scope and significance of the Community provision invoked. Moreover, direct effect seems to be one of the judicial techniques available to give effect to rights [72] contained in a Community provision, rights which may be protected by other means, namely through the interpretative duty or State liability for breach of Community law. Finally, direct effect is also used to refer to the capacity of a Community provision to confer rights upon which individuals may rely. This last meaning is by far the most perplexing, and is a loaded one. It is confusing, given that on occasion the conferral of individual rights is a condition for direct effect [73], whereas in other instances the two are completely divorced [74]. It is also tricky given that direct effect is sometimes a means by which existing rights can be effectuated and sometimes the medium through which rights are created. It is loaded because in the context of directives, even where a provision is capable of creating a right, that right cannot be effectuated [75] if the defendant is a private party [76]. The idea that, in a "Community governed by the rule of law" [77], the outcome of litigation is determined by the identity of the defendant is puzzling.

In van Gend en Loos , reference is made for the first time to 'individuals concerned to protect their rights' [78] :

"the objective of the EEC Treaty which is to establish a Common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States" [79]

When are individuals concerned? Who are these interested parties? What are those rights? When do Community rights arise?

"These rights arise not only where they are expressely granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member states and upon the institutions of the Community." [80]

Questions as to whether and under which circumstances someone has a right under Community law are often answered by reference to the characteristics the Community provision relied upon should present [81]. Such an approach no longer appears helpful. It has nothing but limits, since, as is well known, most Community provisions lack specificity, be it the Treaty, a ' traité cadre' which for the most part required further action, or directives which merely lay down an obligation of result [82]. The requirements of clarity, precision and unconditionality, given the essence and nature of most Community obligations, will have to be somewhat relaxed [83] and reinterpreted, since otherwise they would never be capable of being satisfied. A decision that Community obligation be enforced via private action, i.e. the decision that a provision produces direct effect, rather than referring to the intrinsic qualities of a particular provision, is in fact a policy decision [84] justified by the need to ensure that Member States comply with Community obligations [85]. It follows that:

"direct effect appears to be in a way l'art du possible , as from the point of view of Community law it is to be expected that national courts are willing to carry the operation of the rules of Community law up to the limits of what appears to be feasible considering the nature of their judicial function [86]."

That direct effect is a very subjective concept, is confirmed by van Gend en Loos itself, the Court and Advocate General Roemer reaching opposite conclusions in this respect with regard to Article 12. Further, as the case law on Article 12, and that on the relationship between Articles 12, 92, and 95 suggests, the Court of Justice continues to clarify and define, as is necessary, the meaning and scope of the prohibition contained in Article 12 "as it ought to have been understood and applied from the time of its coming into force". The conditions for direct effect are essentially matters for interpretation, which in turn explains why the question of whether a provision fulfils these requirements is exclusively a matter for the ECJ. As is well-known, the criteria for direct effect have not been adhered to strictly. Thus, reference in the Treaty to implementing measures is no bar to the recognition of a certain degree of direct effect, as the case law on the direct effects of Articles 52, 59 [87] illustrates. Key Treaty articles, although basic principles destined to guide the Member States, and/or the Community institutions, although intended to further implementation, have been translated into rights. Equally, and consistently with the approach in national administrative law, the existence of a discretionary power does not per se preclude the possibility of judicial control [88]. However, it is difficult to ascertain the frontier between conditions that prevent and do not prevent direct effect, because this is dependent on the willingness of the ECJ to set out the parameters for the operation of the conditions giving rise to judicial control [89]. The decision that an obligation is or not defined in a clearly defined way is not always readily understandable [90]. Given that the principles that guide the Court are not so apparent, its activity in this field appears to come close to picking and choosing. Thus, in Comitato di Coordinamento per la Difensa della Cava & others v Regione Lombardia [91] denying direct effect to Article 4 of Directive 75/442, the ECJ held that the provision at issue must be regarded as defining the framework for the action to be taken by the Member States regarding the treatment of waste and not as requiring, in itself, the adoption of specific measures or a particular method of waste disposal. It was therefore neither unconditional nor sufficiently precise, and thus not capable of conferring rights on which individuals might rely upon as against the State. Although it cannot be disputed that this directive does not give a right to the adoption of a particular method of waste disposal, the Court could have decided that, given its clear objective, i.e. the safe disposal of waste, it gave a right to individual to check whether the particular method of disposal of waste chosen was in conformity with this objective, but it did not. The practical result of such a decision is that individuals are denied the possibility to ensure that the exercise of the discretion granted by the directive remains within the limits laid down in the directive [92].

The question is not so much whether an obligation is defined in a clearly defined way, but rather whether or not it is considered to be so.

II.2 Protection of Community law by individuals

When they join the Community, Member States undertake to comply or fulfil a variety of Community obligations. What is proposed is that the questions 'when does someone have a right under Community law', and 'which of those Community obligations concern individuals' be approached in a different way. If we accept that direct effect enables individuals to secure compliance with Community obligations, then 'whether individuals have a role to play in relation to all Community obligations or only a selection of them, and why', should become the subject of attention. If this proposed approach is followed, we need no longer ask: what kind of rights are we talking about? what sort of rights are we talking about? We no longer need to worry either about such issues as: are Community rights limited to individual rights, or personal rights, or subjective rights? Should the classification of a particular position under national law be abandoned for a Community definition of a subjective right?

The obligations undertaken by Member States [93] vary greatly. This is particularly so when one considers the obligation laid down in directives. Some directives require Member States to set up procedures, while others impose obligations on Member States to provide information to the Community institutions or to notify them of a proposed course of action, such as the introduction of new technical regulations. Some directives require Member States to grant exemption from VAT, others oblige them to introduce or modify substantive provisions governing legal relationships in the private sphere. To say that Community obligations vary means that when Community claims come before national courts a variety of issues arise, inter alia ensuring that Member States have set up adequate procedures which offer the guarantees required, or substituting a legally perfect Community provision for a provision of national law, or deciding which effects to attach to the non-respect of an obligation to notify standards or provide the relevant information, or deciding whether the sanctions attached to a failure to comply with a given Community obligations will secure proper compliance with that obligation. In other words, the duties national judges have to carry out vary.

Furthermore, the existence of different types of Community obligations also implies that topics such as to whether or not individuals may be recognised as having an interest in ensuring that Member States comply with these different Community obligations will change. If direct effect can be interpreted to mean that individuals are given the right to secure compliance with Community obligations, and if it is about individuals keeping the Member States in line, in the same way as judicial review of administrative action keeps the executive under proper control, then questions regarding title and interest must be approached differently. The primary focus of judicial review is not private law rights, but rather public law wrongs:

"Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs - that is to say misuses of public power" [94]

In this context it is important to note that individuals are not parties to Article 169 proceedings. The main purpose of Article 169 is not to protect an individual who wishes to rely on Community law [95], but to see that Community obligations are adhered to. Likewise, Article 177 is not a means of redress available to the parties [96]. Its primary focus is not the protection of individual rights. The main function of Article 177 is to secure the uniform application and interpretation of Community law, and thus to secure compliance with Community law. The fact that, on occasion, individual rights are protected is only an additional benefit.

What can be asked of the national judge?

To correct the public wrongs committed by the Member States, and to force compliance by Member States, what are individuals entitled to require the national judge to do? In the event that Community obligations are breached by Member States which duties does Community law put on national judges? In the event that Community obligations are breached, what is the role of the individual?

Clearly, individuals are entitled to go before their national courts for the purpose of safeguarding their situation when some of their private interests have been affected. But individuals are entitled to do much more. What else are individuals entitled to do? Can they complain about maladministration and secure good administration? Is there a place for public law principles in the Community?

Clearly Community law can be used in certain circumstances for the purpose of asking a national court to effectuate a private Community right. For example, I am entitled through Directive 76/207 to work until the age of 65, and so I can insist on my employer keeping me until then, or paying me some compensation if he/she decides to dismiss me before then. But Community law is not only about the creation of these types of 'private' rights. In other instances, the justiciability of directives means that the national court checks whether a particular procedure has been followed and whether it afforded individuals all the guarantees it ought to have offered. The obligations the Member States undertook vary; accordingly the 'rights' they may confer vary and so do duties for national judges. Alongside private enforcement of private rights we have private individuals pursuing public law claims, and title and interest should be assessed differently.

The justiciability of some Community obligations could be assimilated to, and approached as judicial control of discretionary power. Individuals can go before their domestic courts and ask them to check that Member States remain within the margin of discretion left by a Community instrument [97]. In the context of directives imposing the introduction of particular procedures, the national judge can verify only whether or not such a procedure exists, whether it is open in all required circumstances, and whether or not it offers the guarantees it ought to afford. Where no procedure has been introduced, the directive is incapable of giving individuals a right to which the judge could give effect, as national judges have no power to make a positive order providing for a procedural machinery. Still, the individual has the right to invoke the directive for the purpose of seeking a remedy for the failure to respect procedural obligations. The consequences to be attached by national judges to the non-respect of procedural obligations vary.

The effects of a failure to comply with a notification procedure depends on the nature, aim and intended effect of a notification procedure, all of which are matters for the ECJ, and may alter [98]. In CIA, the inapplicability of an obligation of national law, adopted in violation of Community requirements [99], was sought and secured [100]. In CIA, the ECJ decided to enhance the effectiveness of the notification procedure. It is seen as not merely concerning relationships between, on the one hand, the Member State wishing to introduce new technical standards and, on the other, the Commission and the rest of the Member States. Since the Directive impacts directly on the main actors in the Single Market, namely undertakings, these too must be able to prevent the emergence of new obstacles to trade and must be empowered to take action. As a result of private litigation, the validity of the un-notified specifications is affected. Private enforcement of the Community regime, ensures a better level of compliance on the part of Member States, a position consistent with dual vigilance. Supervision and application of Community law by Member States should not be a matter for the Commission and the Member States alone. Individuals too have a role to play in ensuring Member States discharge their Community obligations. Thus, on occasion, individuals may acquire a Community right enforceable before national courts in order to obtain annulment or suspension of national rules adopted in breach of a notification procedure. Individuals are able to force compliance with Community obligations. Consequences flow from non-compliance with procedural obligations, and national courts must attach effects to breach of a notification procedure. In Enichem, by contrast, the notification procedure being merely intended to inform the Commission, did not make the entry into force of the envisaged rules subject to the Commission's approval. Accordingly it did not grant individuals any right capable of being infringed by a failure to notify. Individuals had no Community right which they could enforce before national courts in order to obtain annulment or suspension of national rules adopted in breach of this notification procedure [101]. It is certainly noteworthy that the measures challenged in Enichem were in fact in conformity with another objective of the directive, namely protection of the environment [102], and so for the purpose of this argument, Member States can be seen as in fact complying with their Community obligations, and so the individuals have no role to play.

In the Community we have gone a long way down the line of creating a right for individuals to secure compliance with Community law even where individuals are not directly and individually affected by the violations of Community law. Community law has affected the question of which persons are to be regarded as interested parties by the national legal systems [103]. Community law has had an influence on who should be entitled to question national decisions taken in breach of Community obligations.

"the right to rely on the provisions of directive 79/7 is not confined to individuals coming within the scope rationae personae of the directive, other persons may have a direct interest in ensuring that the principle of non discrimination is respected as regards persons who are protected [104]. "

Individuals have, in certain circumstances, been given the right to secure the application of the law to third parties; in other words, in certain circumstances, individuals have been entitled to compel public authorities to act to enforce the law [105]. Individuals have been able to go before their national courts to secure basic standards of good administration [106]. Individuals have been able to ensure that their governments act legally [107]. Individuals are now entitled to go before national courts for the purpose of pre-empting Member States introducing measures liable to compromise the result prescribed in a directive, and perhaps even insisting that a particular course of action be followed. Given that Member States are, by virtue of Article 5, under an obligation to abstain from jeopardising the achievement of the Community's tasks, the adoption of a directive creates an obligation on the Member States to refrain from taking measures which would, in due course, diminish the effectiveness of the implementing legislation or be "measures liable seriously to compromise the result prescribed" by a directive [108]. Individuals can, in a variety of ways, ensure that Member States behave in conformity with Community law.

The Community is not just about trading, moving, pursuing one's professional activity or providing services. A number of new policies have been introduced, such as consumer and environmental protection. In these fields, legal protection cannot be evaluated solely from the perspective of personal rights [109]. In relation to these new policies, new approaches to legal protection are required, for these policies too need protection; in these areas too, the obligations undertaken need to be complied with. Given that the Community is also concerned with setting environmental standards and safeguarding a high level of consumer protection [110], have individuals any role to play in insisting that these interests are safeguarded, and that these standards are observed? Rather than wondering whether, just as we have a right to trade, a right to move around in the Community, a right to a clean environment, attention should focus on whether and to what extent individuals have been able to play a role in relation the various fields of Community competence. Put naïvely, can individuals play a role in ensuring compliance with environmental standards via their national courts, or are traders alone, entitled to question national environmental standards that curtail their economic activities? Has the range of circumstances where individuals have been entitled to oppose violations of Community law increased together with the increase in Community competences? Is the role of the individual the same in relation to the different fields of Community policies [111], and if it is not, what are the reasons and are these objectively justifiable?

The extent to which individuals have been entitled to secure compliance with various types of Community obligations in the different fields of Community intervention seems to vary. The fact that, on occasions, individuals have been denied the opportunity to play a role and have failed to secure compliance with some Community obligations does not preclude continued and mounting pressure from individuals to see that more and more Community obligations are adhered to, provided of course that access to the judicial process can be secured at national level, that national courts are prepared to send references on these issues, and that the ECJ is willing to entertain dialogue in all these new areas. Among the universal aspects of constitutional law which Professor Mitchell discussed in his published work was the function of judicial control of administrative action in maintaining the rule of law [112] in today's world [113], this observation holds good for the Community.

[63] Case 167/73 Commission v France [1974] ECR 359 para.15

[64] see above p.

[65] van gend en loos

[66] see supra p.1

[67] terms which have not been approved by the European Court

[68] D. Curtin, K. Mortelmans, "Application and Enforcement of Community Law by the Member States: Actors in search of a third generation scenario" in D. Curtin, T. Heukels (eds.) The Institutional Dynamics of European Integration at 427

[69] notably in relation to enforcement of directives, Steiner: "Direct Applicability in EEC law- A Chameleon Concept" (1982) LQR 229

[70] J.Usher, European Community Law and National Law: the Irreversible Transfer? London: Allen & Unwin, 1981

[71] But not J.Winter: "Direct Effect and Direct Applicability: Two Distinct and Different Concepts in Community law" (1972) 9 CMLRev 425.

[72] J. Steiner, "From Direct Effects to Francovich: Shifting Means of Enforcement of Community Law" (1993) 18 ELRev. 3. J. Coppel, "Rights, Duties, and the end of Marshall" (1994) 57 MLR 859.

[73] Case C-236/92 Comitato di Coordinamento per la Difensa della Cava & others v Regione Lombardia [1994] ECR I-483

[74] Case C-6/90 & C-9/90 Francovich and others v Italy [1991] ECR I-5357

[75] although it may be protected by other means. Case C-91/92 Faccini Dori v Recreb srl, [1994] ECR I-3325 paras 26 &27; C-334/92 W. Miret v Fondo de Garantia Salarial [1993] ECR I-6911 Case C-192/94 El Cortes Inglés SA v C. Blázquez Rivero [1996] ECR I-1281. However these various techniques of judicial protection are not of equivalent efficacy; see fn No.xx op.cit.

[76] Although, to add to the confusion, private parties may have obligations imposed upon them, albeit indirectly, via the interpretative obligation Case C- 129/94 Criminal proceedings against Rafael Ruiz Bernaldez [1996] ECR I-1829, ,, C-32/93 Webb v. EMO Air Cargo (U.K.)Ltd [1994] ECR I-3567

[77] Case 294/83 Les Verts v European Parliament [1986] ECR 1339.

[78] which is also the first case where the ECJ was called upon to examine the relationship between Community law and national law.

[79] van Gend en Loos

[80] ibid

[81] clarity, precision, unconditionality

[82] Article 189 EC

[83] for a study of the relaxation of the conditions see inter alia Craig op.cit.

[84] S. Weatherill, Cases and Material on EC law 2nd edition Blackstone 1994 at 67.

[85] and the limit on the direct effect of directives is the price to pay for such justification, given that the Member State is the party which failed to comply, and not the private defendant, obligations cannot be imposed upon the latter.

[86] Pescatore op cit at 177

[87]see Boch op.cit.

[88] see Case 41/74 van Duyn v. Home Office [1974] E.C.R. 137 Case 51/76 Verbond van Nederlandse Ondermingen v Inspecteur der Invoerrechten en Accinjnzen [1977] ECR. 113.;Case 38/77 Enka v Inspecteur der Invoerrechten en Accinjnzen [1977] ECR. 825, Case C-72/95 Aanermersbedrijf P.K. Kraaijeveld BV & others and Gedeputeerde Staten van Zuid-Holland. [1996] ECR I-2201; and C. Boch : The enforcement of the EIA Directive: A breach in the Dyke? (1997) 9 JEL 129 .

[89] Weatherill & Beaumont, EC law, (London Penguin, 2nd ed. 1995)at 340.

[90] But on occasion is readily understandable: case 126/86 Zaera v Institutio Nationale de la Seguridad Social where the reference in Article 2 EEC to the promotion of an accelerated standard of living was held incapable of imposing legal obligations on Member States or conferring rights on individuals

[91] Case C-236/92 [1994] ECR I-483

[92] In contrast with C-131/88 [1991] ECR I-825, C-361/88 [1991] ECR I-2567; C-59/89 [1991] ECR I-2608 where different consequences are attached to the need not to endanger human health .

[93] of course obligations are also put on individuals under the Treaty, but these remain outwith the remit of this paper.

[94] R v Somerset County Council ex parte Dixon 75 P & CR 175, [1997] JPL 1030per Sedley J

[95] and the Commission's discretion as to whether or not it acts upon a complaint and initiate proceedings cannot be reviewed at the suit of individuals case 247/87 Star Fruit v Commission [1989] ECR 291

[96] Case 283/81 CILFIT v Ministero della Sanità [1982] ECR 3415

[97] Case C-72/95 Kraaijeveld BV & Others and Gedeputeerde Staten van Zuid-Holland [1996] ECR I- 5403

[98] Compare Case C-194/94, CIA Security International v Signalson and Securitel [1996] ECR I-2201 with Case 380/87 Enichem base v Commune di Cinisello Balsamo [1989] ECR 2491 and Case C- 226/87 Lemmens judgment of 16 June 1997 n.y.r..

[99] contained in Directive 83/189 laying down a procedure for the provision of information in the field of technical standards and regulations OJ 1983 L109/8 amended by directive 94/10 OJ 1994 L100/30

[100] With a practical result for traders: they can sell products, although they do not conform with national technical specifications, since these have not been notified

[101] The practical result for traders: they could sell only products complying with the un-notified measures

[102] para.7 of the judgment

[103] J.Jans: "Legal Protection in European Environmental law" (1993) EELR 151

[104]Case C-87/90 A. Verholen e.a. v. Sociale Verzekeringsbank [1991] ECR I-3757

[105] Case 158/80 Butter- Buying cruises [1981] ECR 1805 para 40

[106] Case 222/84 Johnston v. Chief Constable of the RUC [1986] ECR 1651 Case 222/86 UNECTEF v Heylens [1987] ECR 4097

[107] Equal Opportunities Commission v Secretary of State for Employment [1994] 1 WLR 409

[108] Case C-129/96 Inter-Environnement Wallonie ASBL and Région Wallonne [1997] ECR I- 7411

[109] J .Jans op.cit

[110] Although, a new and puzzling distinction seems to have been introduced between obligations undertaken by the Community and obligations undertaken by the Member States. In Case C-192/94 El Cortes Inglés SA v C. Blázquez Rivero [1996] ECR I-1281 para.20, the ECJ indicated that Article 129a "merely assigns an objective to the Community and confers powers on it to that end, without also laying down any obligation on Member States or individuals"

[111] Weatherill op.cit fn xxx, and above at xxx

[112] "L'Etat de Droit appears to be a new idealised form of democratic Society which sets up the judge as supreme arbitrator. The citizen brandishes his rights like a machette in an equatorial jungle, and the ultimate regulation of all rights and liberties is more and more in the hands of the judges"N.Questiaux [1995] PL 425

[113]A. W. Bradley "Jurisdictional aspects of judicial review in Scots law" In Memoriam JDB Mitchell (London, Sweet and Maxwell 1983)

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