Nicola Gaviano and Solveig Cogliani
Direct effect, as you know, is the main feature of EC Regulations, which, pursuant to art. 249 (former art. 189), is an act having a “general application” and is “binding in its entirety and directly applicable in all Member States ". Therefore, it is not necessary for national legal systems to implement it, as a Regulation can directly produce its effects in the national legal system of each Member State. It follows from this that the national judge is under the obligation to fully apply EC law and to enforce the rights that such law grants to individual parties and must not apply any conflicting national provision, regardless of whether the latter was adopted before or after the EC provision.
The major problems we are faced with therefore concern the implementation, by the national legislator, of acts by the Community institutions that are not directly applicable, such as Directives and Decisions, and that need to be implemented by measures enacted by the national legislator.
Pursuant to the constant interpretation of the judges in Luxembourg, an EC directive may be considered as being directly applicable if the following conditions are met:
Really EC directives are directly applicable also before the term is elapsed, if they have precepts like in the case of prohibitions.
The European Court of Justice expressed this principle for the first time in the "Van Duyn" judgment of 1974 (ECJ, judgment of 4 December 1974, Yvonne Von Duyn v. Home Office (case 41/74)), where it stated that: "where the community authorities have, by directives, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before the national courts and if the latter were prevented from taking it into consideration as an element of community law". On the other hand, art. 177, which empowers national courts to ask the European Court of Justice to rule on the validity and on the interpretation of all acts adopted by the institutions, without distinctions, “implies furthermore that these acts may be invoked by individuals in the national courts” (Van Duyn cit.).
In order to elaborate the principle of direct effect of clear, unconditional and expired community directives, the Court of Justice acted in two ways: either by means of decisions condemning a party or by means of judgments that established the principle of loyal interpretation.
In the first case, the Court stated the principle according to which individuals may ask for the direct application of the directive. In the "Ratti" case (ECJ, judgment 5 April 1979, criminal charges against Mr. Tullio Ratti (case 148/78), concerning Italy, Community judges held that "a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely , as against individuals, on its own failure to perform the obligations which the directive entails”. In the "Von Colson e Kamann" case of 1983 (ECJ, judgment 10 April 1984, Von Kolson and Kamann v. Land Renania of North Westfalia (case 14/83)), the Court, which was asked to rule over gender discrimination in accessing work, held that a Member State must interpret its national laws in light of the directive. According to such interpretation, therefore, national courts must interpret law in conformity with community principles, as much as possible, and apply national provisions taking into account the needs expressed by the relevant directive which has not yet been implemented in the national legal system.
Lately, the Court has underlined the principle of the legal necessity that the national legal systems should conform with directives: from the Francovich case in 1990 (ECJ, judgment 19 November 1991, Andrea Francovich and others v. Republic of Italy (unified cases C-6/90 and C-9/90) onwards, the Court has not only restated the principle of the liability of the Member State that doesn’t ensure the compliance of its legal system with directives, but has further added the Member States’ liability in tort, with the consequent obligation to compensate the damages caused to individuals by the failure to implement the directive. The message is simple: Community law is a legal system that imposes itself on Member States, therefore the liabilities for which the State is accountable for damages caused to individuals for the violations of Community law and for which it is responsible are perfectly consistent with the inspiring principles of the EC Treaty.
Also we have to say exactly that the community laws prevail over national laws independently from the ordinary mechanism of succession rule.
Having said this, we must underline that in the Italian legal system the principles relating to the implementation of community provisions by the courts do not know of a distinction of means between the ordinary judge and the administrative judge. Therefore, in this field we may refer to the development of Italian case law as a whole, and, first of all to that of the Constitutional Court.
In the sixties, the Constitutional Court refused the thesis according to which national law containing provisions conflicting with community principles should be regarded as unconstitutional for indirect violation of art. 11 of the Constitution (Constitutional Court, judgment 7 March 1964, n.14, Costa v. Soc. Edison – Volta and ENEL). At the time, the Court held that the possibility, for national courts, to disapply national provisions conflicting with community law was an inadmissible “deprivation of the sovereign will of the Member States’ legislative bodies” (Constitutional Court, judgment 30 October 1975, n.232, I.C.I.C. S.p.A. v. Ministro del Commercio con l’Estero).
At the time, the Constitutional Court stated that community law provisions had to be placed on the same level as ordinary laws, based on the fact that the founding Treaties of the Community had been implemented by means of ordinary laws. Therefore, according to this interpretation, the relationship between national provisions and community provisions had to be resolved according to the normal succession of laws in time. From this followed that a community law provision could have been repealed (in the national territory) by a later provision of national law according to the "lex posterior derogat priori" principle.
After that, having acquired a new sensibility, the Constitutional Court started to open up to community law, acknowledging its supremacy over ordinary national provisions, and stating that the principles expressed by the case law of the European Court of Justice had the same nature of community law.
So even the Italian Constitutional Court opened itself up to the interpretation provided by the community judges and started to hold that even the judgment of the ECJ must prevail over national law, ruling the direct effect of the principles expressed by the judges in Luxembourg (provided that these were clear, precise and consistent).
In this regard, it has also been said (MENGOZZI, "La riforma del diritto internazionale privato", Napoli, 1997) that "the Constitutional Court took a new attitude with respect to its former more cautious positions and largely agreed to the European Court of Justice’s request that national judges ensure the compliance with community law and has empowered the latter to disregard the application of national provisions conflicting with previous community provisions or with previous rulings of the Court of Justice, provided that one or the other of such community legal values has a content which is sufficiently clear, precise, determined and does not conflict with the fundamental principles of the Italian Constitutional legal order or with the fundamental rights which it ensures”.
In this sense, we must acknowledge the historical importance of the judgment n. 170/84 (Constitutional Court, judgment 8 June 1984, n.170, Granital v. Amministrazione delle Finanze) , in which the Court stated which was to be the new key to understanding the relationship between the national legal order and community legal order, whereby with regard to the question of the constitutional legality of national law (specifically D.P.R. 22 September 1978 n. 695): the question “is not admissible, with reference to art. 11 cost. and in relation to art. 177 and 189 of the EC Treaty… as the ordinary judge must always apply, in fields which are reserved to the competence of the EC, the applicable community provisions which have direct effect (specifically regulations) regardless of whether the precede or follow ordinary laws which conflict with them, without the need to raise the question of constitutional legality of such laws.” In fact “The Italian judge, having ascertained that rules coming from a community source apply to the case at hand, applies them, by making exclusive reference to the supranational legal system; consequently, conflicting national provisions cannot prevent the acknowledgement of the “force and value” that the Treaty of Rome confers to the Community regulation, i.e. an act having direct effect. As the Community regulation sets forth the rules, from this following that the effect connected to its existence is not to repeal, in the literal sense, the conflicting national provision, but to prevent such provision from being relevant for the resolution of the controversy pending before the national judge.”
Therefore, the Constitutional Court, having to solve the doubts with regard to the relationship between national law and community law, has carried out an interpretation of the principles of the Treaty and has clarified that the latter prevails over national conflicting provisions (Constitutional Court, judgment 7-11 October 1994, n.384, Pres. Cons. Min. v. Regione Umbria) and has stated that, when the national judge is faced with a conflict which cannot be solved between a community provision and a national provision, the judge must no longer refer the question to the Constitutional Court but is under the duty to directly apply the community law provision, even if this was enacted later.
The case law which followed, including the one expressed by the administrative courts, moved in these steps.
Finally, the Supreme Administrative Court (Consiglio di Stato) has confirmed that (case Com. Milano v. M. and other; Consiglio Stato, sez. IV, 10 May 2004, n. 2883) “The direct effect of community directives in the legal systems of the Member States relies on the fact that the term prescribed for their implementation has uselessly elapsed and that the European act contains detailed provisions, which, as such, are applicable without the need of further provisions (self executing); or, if a (later) provision is contrary to the principles established in a (previous) directive, the former must not be applied in order to ensure the implementation of the latter, in light of the supremacy of EC law, in cases where it conflicts with contrary national acts.”
However, the application of community laws from the national judges doesn’t eliminate the State responsibility, because it’s an application about the single case, so not qualified to give legal certainly. So, like the EC Court says, the CDO (cas décélés d’office) procedure remains to contest the State violation.