Morten Rasmussen – Københavns Universitet

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Morten Rasmussen

Revolting against the ECJ: The History of the Case Law of the Direct Effect, 1970-1986

At the very core of the establishment of the constitutional practice of European public law lies the question of enforcement. However, the Treaties of Rome included only a weak enforcement system; it was delegated to national administrations and courts, monitored only by a Commission with scarce resources and with only an untested infringement procedure available. And while regulations were explicitly directly effective in the member states, all other law, including the treaties themselves, did not enjoy this status. As a result member state governments largely controlled the application of European law, generally at the cost of the legal security of individual citizens in the new common market. Laws could be made by national governments based on European obligations but, at least in theory, citizens had no recourse to judicial control. There is little doubt that this system reflected the intentions of the national governments that signed the Treaties of Rome.

The landmark Van Gend en Loos judgment in 1963 took the first step to change this state of affairs. The European Court of Justice (ECJ) – cautiously at first – introduced ‘direct effect’ of treaty articles that imposed negative obligations on the member states. This decision was hailed as a major breakthrough because, in principle, it allowed citizens to draw on European law before national courts and have it indirectly enforced through the system of preliminary references. At the same time it left the enforcement of most European legal norms (treaty articles and directives) unsolved. However, from 1967 the ECJ began to address this challenge more confidently in a series of rulings over the next two decades expanding the direct effect of European legal norms. This caused uproar in several member states, including France, Britain and Germany. For instance, in the late 1970s, the French Conseil d’État rejected outright the direct effect of directives. This was followed by the so-called Aurillac amendment of the French National Assembly in 1979, which recommended that French courts not apply European law.

This project, using unseen archival material, will explore the history of the ECJ case law on direct effect and the subsequent, contentious national responses to it. By doing this one of the most contested episodes in the emergence of the constitutional practise will for the first time be treated systematically.