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JANUARY/FEBRUARY 1985
unconditional that it will be construed by the Court of
Justice as conferring a legal right on a natural or legal
person. Therefore, establishing direct effects is a matter of
interpretation by the Court of Justice.
A further issue may then arise as to whether the
individual concerned can assert that right as against
anyone, including another natural or legal person
("horizontal direct effects"), or only against a public
body which had an obligation to respect that right
("vertical direct effects"). The Court of Justice has
distinguished between construing whether a particular
Treaty article gives rise to direct effects (when it has
frequently used interchangeably the terms "directly
applicable" and "direct effects", to the confusion of law
students and the irritation of some academics!), and
construing whether a provision of a Directive which
required to be implemented may give rise to direct effects.
If the Treaty article satisfies the tests for direct effects, it
will be construed as giving rise to horizontal as well as
vertical direct effects. In the case of the Directive, on the
other hand the court has respected the distinction made in
the definition of regulations and of directives in Article
189, and has concluded
(Becker Case
(Case 8/81) (1982)
[1982] ECR 53):
"It follows from well-established case-law of the
Court and, most recently, from the judgment of 5
April 1979 in Case 148/78
Pubblico Ministero
-v-
/tam [1979] ECR 1629, that whilst under Article 189
regulations are directly app l i c ab le and,
consequently, by their nature capable of producing
direct effects, that does not mean that other
categories of measures covered by that article can
never produce similar effects.
It would be incompatible with the binding effect
which Article 189 ascribes to directives to exclude in
principle the possibility of the obligations imposed
by them being relied on by persons concerned.
Particularly in cases in which the Community
authorities have, by means of a directive, placed
Member States under a duty to adopt a certain
course of action, the effectiveness of such a measure
would be diminished if persons were prevented
from relying upon it in proceedings before a court
and national courts were prevented from taking it
into consideration as an element of Community
law.
Consequently, a Member State which has not
adopted the implementing measures required by the
directive within the prescribed period may not
plead, as against individuals, its own failure to
perform the obligations which the directive entails.
This, wherever the provisions of a directive
appear, as far as their subject matter is concerned,
to be unconditional and sufficiently precise, those
provisions may, in the absence of implementing
measures adopted within the prescribed period, be
relied upon as against any national provision which
is incompatible with the directive or in so far as the
provisions define rights which individuals are able
to assert against the State."
1
The consequence of a Community provision being
either directly applicable and/or giving rise to direct
effects is that it must be applied and given such effect by
the courts of each Member State. Therefore, issues of
European Community law do not just arise in the Court
in Luxembourg, but are being raised with increasing
frequency in the courts of the Member States, including
the criminal courts. What happens, then, when there is a
conflict between a provision of Community law and Irish
legislation covering the same subject?
Supremacy of Community Law
The supremacy of Community law over the domestic
law of Member States was also established at an early
stage in the jurisprudence of the Court of Justice. In
Costa
-v- ENEL
(Case 6/64) [1964] ECR 585, the Court referred
to the new legal order of the Community and concluded
as follows:
"The integration into the laws of each Member
State of provisions which derive from the
Community, and more generally the terms and the
spirit of the Treaty, make it impossible for the
States, as a corollary, to accord precedence to a
unilateral and subsequent measure over a legal
system accepted by them on a basis of reciprocity...
The executive force of Community law cannot
vary from one State to another in deference to
subsequent domestic laws, without jeopardising the
attainment of the objectives of the Treaty set out in
Article 5(2) and giving rise to the discrimination
prohibited by Article 7".
4
The full implications of this supremacy principle were
brought home when an Italian court referred certain
questions which required the Court of Justice to rule on
the duty which befell a national court faced with a conflict
between a provision of Community law and a subsequent
provision of domestic law on which one of the parties
sought to rely in the domestic court —
Simmenthal(No. 2)
(Case 106/77) [1978] ECR 629. The operative part of the
ruling is as follows:
" A national court which is called upon, within the
limits of its jurisdiction, to apply provisions of
Community law is under a duty to give full effect to
those provisions, if necessary refusing of its own
motion to apply any conflicting provisions of
national legislation, even if adopted subsequently,
and it is not necessary for the court to request or
await a prior setting aside of such provision by
legislative or other constitutional means".
5
The position is, therefore, according to Community
law — as authoritatively interpreted by the Court of
Justice — that a new legal order has been created with
very substantial penetration into the legal systems and
laws of the Member States. As a consequence, rights can
be asserted and defences based on provisions of
Community law in either civil or criminal proceedings
before the Irish courts. Any Irish court before which such
a matter was raised — whether it be the District, Circuit,
High or Supreme Court or any criminal court — would be
obliged either to apply the Community law or, if in doubt,
to refer such doubt by way of question to the Court of
Justice in Luxembourg for interpretation. Even if the
Irish court found itself in a position where there was a
conflict between Community law and a subsequently
enacted Act of the Oireachtas or statutory instrument, the
6