What Makes European Union Law Different From International Law?

Author: Lili-Rose Demelas[1]

Abstract

Many European Union (EU) specialists and the EU institutions often consider that the EU is different from the international legal order and constitutes its own distinct legal system. Nonetheless, this unique entity was shaped by international law treaties concluded by sovereign countries. Indeed, the three founding treaties of the EU – the European Coal and Steel Community Treaty (ECSC Treaty), the European Economic Community Treaty (EEC Treaty) and the European Atomic Energy Community Treaty (EURATOM Treaty) – were adopted by the Member States according to standard rules of international law. The amending treaties of the EU, the most recent of which is the Treaty of Lisbon, also follow the ordinary rules on treaty-making of international law. From this perspective, the EU is similar to other international organisations. However, several important characteristics distinguish it from ‘ordinary’ international law: a clearer hierarchical law-making process, the unequal voting status of states in the adoption of EU laws and the weakening of the state consent principle through majority voting, the decision-making regime, marked by the involvement of certain institutions not controlled by the Member States, a directly elected transnational parliament with a law-making role, etc. That being said, it is the Court of Justice of the European Union (CJEU) that played the most important role in this development through its case law on primacy and direct effect of EU law.

Introduction

As early as 1963, the CJEU stated in its famous Van Gend en Loos judgment that the EU (or, previously, the EEC) constitutes ‘a new legal order (...) the subjects of which comprise not only the Member States but also their nationals’.[2] Going even further, in the 1986 Les Verts judgment, the Court held that the EEC Treaty forms the constitutional charter of an unprecedented political and legal entity.[3] This case law indicates that Union law is distinct not only from the national legal orders of the Member States, but also from the international legal order.

Distinct from European law, which includes both EU law and the law of the Council of Europe (the Europe of the ‘46’ since the expulsion of Russia), EU law is the law of the Europe of the ‘28’, the ‘27’ since Brexit (the Community design). Nowadays, Union law, previously referred to as ‘Community law’, constitutes an imposing set of rules that fit into the most diverse branches of the national law of EU Member States.[4] On the one hand, it consists of what is known as ‘primary law’, including treaties and general principles of European law which are its founding sources. On the other hand, regulations, directives and decisions, known as ‘secondary law’, are rules that are regularly issued by the bodies of the Union. In a broader sense, EU law covers all the norms of the Union’s legal system, including the Charter of Fundamental Rights (since the Treaty of Lisbon) as well as the general principles of law laid down by the EU Court of Justice.[5]

International law, also known as the law of nations, has long been defined as the law governing inter-state relations, or as the law of international society alone.[6] However, these traditional definitions have become obsolete because they do not fully reflect contemporary international law, having had its object, scope and content changed. Thus, international law could be defined as the law composed of all the legal rules, practices and discourse emanating from the subjects of international law.[7] In other words, it is a law that aims to govern relations and situations both internal to States and international. Furthermore, a distinction is traditionally drawn between public international law and private international law. Public international law encompasses the set of rules governing relations between subjects of international law, while private international law rules intend to settle conflicts of legislation and jurisdiction raised by private legal relations with an international connection.[8]

Founded upon a series of treaties concluded between its Member States, the EU was and would remain a product of international law. Although this view may seem logical, it is in fact strongly contested in the legal literature.[9] Therefore, this study will focus on the characteristics of EU law and, more specifically, on its features which make it different from ‘ordinary’ international law.

Moreover, it should be recalled that European law was created by or within the Council of Europe, whereas EU law falls under the Community design.[10] Thus, this article will not take European law into account but will concentrate solely on EU law.

Originally, Union law started from public international law. It is this source of law that has largely contributed to the birth and development of EU law in so far as the EU legal system was created according to the rules of change (ie the rules governing how law changes) in public international law: it was created by means of international treaties.[11] This article will therefore focus on what distinguishes Union law from public international law and, more specifically, from general public international law. ‘General public international law’ means ‘the overall rules of the international legal system, rather than the specific category or source of general principles of public international law’.[12]

To answer the research question this article will first look at the main features of the EU legal system that distinguish it from general public international law (1), and then will focus on two characteristic principles of EU law, namely primacy and direct effect (2).

1.      Incomparable legal characteristics

Since the 1960s, many EU law scholars have argued that the legal features of Union law are so unique and distinct relative to international law that it should no longer be considered part of international law.[13] From the legislative process under EU law (1.1.) to the application of Union legislation (1.2.), the legal characteristics of EU law that could support this view are manifold.

1.1.           The legislative process under EU law

The law-making process under EU law is very different from that under international law.

Firstly, the legislative process preserves a hierarchical structure in Union law more than it does in international law. Indeed, compared to EU law, there is no formal hierarchy of the sources in international law. However, informally treaties tend to generally have the highest status, followed by general principles and custom.[14] The various sources of Union law are what is known as primary law, general principles of law, international agreements concluded by the EU and secondary law. Despite the failed attempt to draft an EU constitution, the content of the founding and amending treaties sometimes resembles rules of constitutional law. Indeed, by the mid-1980s, in the ‘Les Verts’ v European Parliament case, the Court of Justice described the EEC Treaty – now repealed – as a ‘constitutional charter’.[15] The Court was referring here to a constitutional charter rather than to a Constitution, because the EU does not formally have a Constitution.[16] The general principles of Union law are another very important source of EU law, much more than in the international legal system, where the judiciary is generally less ‘activist’.[17] ‘Ordinary’ EU laws (regulations, directives and decisions), the Union’s day-to-day legal instruments, are the equivalent of acts adopted by a national parliament, as the process for adopting these laws (the legislative procedure) is very similar to what is known, for instance, in federal systems such as Germany or the United States between the two Houses of Parliament.

In addition, EU Member States can generally be outvoted in the making of ordinary Union laws. The latter are generally subject to (qualified) majority voting amongst the Member States and agreement by the European Parliament.[18] The ‘ordinary legislative procedure’, rightly renamed by the Treaty of Lisbon, therefore involves the joint intervention of the Council of Ministers (hereinafter ‘Council’) and the European Parliament in the law-making process. Under this procedure, qualified majority voting can be weighted, to a certain extent, in proportion to the size of the population of the Union. Thus, for decisions taken by the Council, the new voting system provides that a qualified majority is equal to at least 55% of the States representing at least 65% of the EU’s population. In international law, however, the principle of sovereign equality of States rules out such a proportionate weighting of a State’s vote.[19]

Finally, in certain fundamental areas of Union law, such as competition law and monetary policy, the European Commission and the European Central Bank (institutions of the EU) respectively exercise significant decision-making powers even though they are not under the control of the Member State governments.[20] It is important that these institutions act independently of the Member States so that they are not influenced by them. However, the increasing power of these independent bodies could contribute to the weakening of national democracy and the shifting of the Union’s institutional balance. The European Parliament, which is directly elected by the citizens of the EU since 1979, exercises democratic scrutiny of the European Commission and participates democratically in the legislative process, something that does not exist in any other system of international law.[21]

Having looked at the law-making process under Union law, this article now turns to the application of EU law.

1.2.           The application of EU law

As the EU Court of Justice was able to state very early on, the general international rule authorising States to take retaliatory measures in the event of non-compliance by other parties to the same Treaty (inadimplenti non est adimplendum, ie there is no need to perform for one who has not performed) does not apply in the context of Union law.[22]

On the one hand, Article 17 of the Treaty on European Union (TEU) entrusts the European Commission with ensuring the application of EU law across the Member States. In this context, it is responsible for ensuring that the Treaties and any decisions taken to implement them (secondary law) are properly applied. As guardian of the Treaties, the European Commission has therefore been empowered by Article 258 of the Treaty on the Functioning of the European Union (TFEU) to act in such a manner by monitoring the behaviour of the Member States.[23] If necessary, and if it is under the impression that one of the Member States is not complying with Union law, it can also initiate infringement procedures against the State in question and refer the matter to the CJEU in order to ensure that EU law is respected. For example, in the Commission v Poland (Białowieża Forest) case, after Poland rejected the alleged infringements, the European Commission ultimately brought an action for failure to fulfil obligations before the Court of Justice and, by a separate document, lodged an application for interim measures. The Commission therefore has a locus standi (the right to sue) in actions brought under Article 258 of the TFEU.[24] Thus, Union law has its own specific system of State liability, distinct from all the rules of international law governing State responsibility.

On the other hand, to ensure a uniform application of EU law within the Member States, the national court can refer questions regarding the validity or the interpretation of a European Standard to the Court of Justice. This is done as part of a reference for a preliminary ruling (art. 267 TFEU).[25] Nevertheless, this preliminary reference procedure has been imitated elsewhere, mostly by international courts in the framework of regional integration organisations whose political and judicial institutions were deliberately copied on those of the Union, such as the Andean Tribunal of Justice (an organ of the Andean Community), which is engaged in an active dialogue with national courts through a preliminary ruling mechanism similar to that of the EU Court of Justice.[26]

As the Court pointed out in its famous Costa v ENEL judgment, unlike ordinary international treaties, the Community and Union treaties have ‘created [their] own legal system which (…) became an integral part of the legal systems of the Member States (…)’.[27] Thus, the EU is a legal order[28] integrated into the domestic legal systems of the Member States, whose normative effectiveness is ensured by its primacy and direct effect.

2.     An integrated legal order: the doctrines of primary and direct effect

Very early on, the CJUE deliberately pursued a strategy to distinguish Union law from public international law.[29] In this effort, two leading cases were decided by the Court of Justice in 1963 and 1964, namely Van Gend en Loos and Costa v ENEL respectively. These cases established two main principles inherent in EU law: the principle of primacy (2.1.) and the principle of direct effect (2.2.).

2.1.           The primacy of EU law

One of the most often cited differences between EU law and international law is its primacy within the national legal orders of its Member States (ie Union law is superior to the national law of the Member States). Indeed, although international Treaties prevail over national law, this precedence applies at the international level rather than within the domestic legal systems.[30] Conversely, EU law enjoys reinforced primacy: Union law not only asserts its primacy, but also imposes it within the domestic legal orders of its Member States.[31]

It was in 1964, in its famous Costa v ENEL judgement, that the EU Court of Justice affirmed the primacy of Community law (now EU law). In this case, Flaminio Costa, challenged before the giudice conciliatore of Milan[32] the compatibility of the EEC Treaty with the Italian law on the nationalisation of electricity. The judge then referred a number of questions to the Court of Justice for a preliminary ruling, which the Italian government ruled inadmissible on the grounds that the national court is obliged to apply the national law, which was subsequent to the law of ratification of the treaty. Ultimately, the Court concluded that, because of its special nature, the law stemming from the Treaty – an independent source of law – cannot be contradicted ‘by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.’[33] Thus, as the CJEU clearly states, the primacy of Union law derives from its own nature and does not result from any concession of the constitutional law of the Member States.[34]

Besides, the doctrine of primacy is an absolute rule that benefits the whole body of Community law, whether it concerns rules of primary law (the Treaties themselves) or secondary law (binding unilateral acts). As for non-binding unilateral acts such as opinions and recommendations, although they have no binding force outside the institutions, Member States are nevertheless not authorised to take measures contrary to their objectives.[35] Thus, the primacy of EU law expressed by the subjection of national law varies in intensity.

Finally, the consequences that the EU Court of Justice has drawn from the principle are even more important than the principle itself and constitute one of the major originalities of Union law.[36] Indeed, the Court asserted that the primacy of EU law applies not only in relations between Member States and the European institutions, but also – and this is essential – in national legal systems.[37] Thus, faced with the monopoly that the Italian Constitutional Court had reserved for itself to declare a law incompatible with Community law, the Court of Justice considered that every 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 (…)’ and to protect rights which the latter confer on individuals.[38] Since then, the CJUE has constantly reiterated this obligation.

Having studied the principle of primacy, this paper will now naturally turn to the question of the direct effect of Union law.

2.2.          The direct effect of EU law

A year earlier, even though the principle of primacy had not yet been expressly stated, the Court of Justice asserted in its Van Gend en Loos judgment that EU law has direct effect. It held that an individual could invoke an EU law in a national court.

While direct effect is the rule in the Union, it normally remains rather exceptional in public international law: treaties between States apply to States, but not directly on their territory to natural or legal persons. This is the case, for instance, of human rights treaties. Direct effect can be of varying intensity. A distinction is made between what is known as ‘vertical’ direct effect and what is known as ‘horizontal’ direct effect: vertical direct effect enables individuals to invoke Union law in a national court only against the national government, while horizontal direct effect, the more comprehensive of the two, enables individuals to invoke EU law in a national court against the national government as well as against individuals.[39]

Likewise, the basis for direct effect was established by the EU Court of Justice in its famous Van Gend en Loos judgment. A Dutch transport company brought an action against the Dutch revenue authorities before the Netherlands administrative tribunal, the Tariefcommissie, on the grounds that the latter had levied increased customs duty on the import of a chemical product from the Federal Republic of Germany (FRG). The outcome of the dispute ultimately depended on whether an individual could rely on Article 12 of the EEC Treaty, which expressly prohibited Member States from introducing new customs duties or from increasing existing customs duties in the common market. Despite the opposition of many governments and its Advocate General, the Court of Justice ruled in favour of the possible immediate applicability of Community provisions, having regard to the nature and objectives of the Community.[40] In its grounds of judgment, the Court also recalled that the Treaty is intended to establish a Common Market, the functioning of which concerns the participation of all economic agents called upon to intervene in it and not the participation of the Member States alone. At the same time, it also emphasised that the Treaty was not simply an agreement creating obligations between the signatory Member States, but that it also concerned the nationals of those States.[41] The principle of direct effect has led to a series of consequences. Firstly, Member States cannot prevent the application of Union law on their territory. Secondly, individuals can invoke the rules of EU law before the national courts. Finally, national courts are obliged to apply Union law as if it were part of domestic law.

Finally, the scope of the principle varies according to the different types of acts in Union law. Only certain provisions of the Treaties have vertical direct effect. Those with horizontal direct effect are relatively rare. Thus, regulations have full direct effect (ie vertical and horizontal), while directives have vertical and conditional direct effect.[42] Decisions, for their part, have full effect with regard to individuals and vertical effect if they are addressed to Member States.[43] By contrast, international agreements concluded by the EU do not, as a matter of principle, enjoy direct effect, as it is impossible to disregard the international origin of the provisions.[44]

Conclusion

All in all, it can be asserted that the founding treaties of the EU contain a series of novel elements that clearly distinguish Union law from international law. The ones touched upon in this article include the role of the Commission as initiator of legislative proposals, the provision for (qualified) majority voting amongst the representatives of Member States, the compulsory jurisdiction of the CJUE.[45] Nonetheless, what distinctly sets EU law apart from international law is the pivotal role played by the Court of Justice in establishing the principles of primacy and direct effect. This contrasts with the conventional approach in ‘normal’ public international law, where only States have the authority to invoke international law in national courts.[46] Additionally, it would be interesting to explore further the view that EU law is a part or a ‘sub-system’ of international law.

Footnotes:

[1] Passionate about literature and inspired by fervent women’s rights activists, from Simone Veil to Gisèle Halimi, Lili-Rose naturally decided to study law after graduating high-school. She is currently a first-year law student at the University of Luxembourg and will be entering her second year next fall. Later, she aspires to work for the defence of human rights, in particular the cause of women's and children's rights, within international structures or organisations.

[2] Case 26-62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 2.

[3] Antoine Masson and Paul Nihoul, Droit de l’Union européenne : droit institutionnel et droit matériel : théorie, exercices et éléments de méthodologie (3rd edn, Larcier 2011) 262.

[4] Marc Blanquet, Droit général de l’Union européenne (11th edn, Sirey 2018) XXIII.

[5] EUR-Lex, ‘EU law’ < https://eur-lex.europa.eu/EN/legal-content/glossary/eu-law.html# > accessed 2 July 2024.

[6] Emmanuelle Tourme-Jouannet, Le droit international (Presses universitaires de France 2022) 30.

[7] ibid 31.

[8] Pierre Pescatore, Introduction à la science du droit (Bruylant 2009) 31 and 35.

[9] Catherine Barnard and Steve Peers, European Union Law (Oxford University Press 2020) 199.

[10] Marc Blanquet, Droit général de l’Union européenne (11th edn, Sirey 2018) XXIII.

[11] Gerard Conway, EU Law (Routledge 2015) 29.

[12] ibid 55.

[13] Catherine Barnard and Steve Peers, European Union Law (Oxford University Press 2020) 199.

[14] Gerard Conway, EU Law (Routledge 2015) 46.

[15] Case 294/83 Parti écologiste ‘Les Verts’ v European Parliament [1986] ECR 1339, para 23.

[16] Abdelkhaleq Berramdane and Jean Rossetto, Droit de l’Union européenne : institutions et ordre juridique (3rd edn, LGDJ 2017) 77.

[17] Gerard Conway, EU Law (Routledge 2015) 57.

[18] ibid.

[19] ibid.

[20] Catherine Barnard and Steve Peers, European Union Law (Oxford University Press 2020) 200.

[21] ibid.

[22] ibid 201.

[23] Tony Storey and Alexandra Pimor, Unlocking EU Law (5th edn, Taylor & Francis Group 2018) 75.

[24] ibid.

[25] Antoine Masson and Paul Nihoul, Droit de l’Union européenne : droit institutionnel et droit matériel : théorie, exercices et éléments de méthodologie (3rd edn, Larcier 2011) 308.

[26] Catherine Barnard and Steve Peers, European Union Law (Oxford University Press 2020) 201.

[27] Case 6-64 Costa v ENEL [1964] ECR 585, 593.

[28] According to Hans Kelsen, a legal order is ‘a building with several superimposed floors, a pyramid or hierarchy formed of a number of levels or layers of legal norms’. This is also the case with EU law, but with a great uniqueness.

[29] Gerard Conway, EU Law (Routledge 2015) 55.

[30] Catherine Barnard and Steve Peers, European Union Law (Oxford University Press 2020) 202.

[31] Abdelkhaleq Berramdane and Jean Rossetto, Droit de l’Union européenne : institutions et ordre juridique (3rd edn, LGDJ 2017) 345.

[32] The guidice conciliatore was a magistrate (magistrate onorario) with jurisdiction over minor criminal cases, small civil claims and property disputes. He was replaced in 1994 by the guidice di pace.

[33] Case 6-64 Costa v ENEL [1964] ECR 585, 594.

[34] Marianne Dony, Droit de l’Union européenne (7th edn, Éditions de l’Université de Bruxelles 2018) 262.

[35] Patrick Dollat, Droit européen et droit de l’Union européenne (3rd edn, Sirey 2010) 341.

[36] Marie Gauthier, Droit institutionnel de l’Union européenne (Presses universitaires de France 2010) 207.

[37] Marianne Dony, Droit de l’Union européenne (7th edn, Éditions de l’Université de Bruxelles 2018) 266.

[38] ibid.

[39] Gerard Conway, EU Law (Routledge 2015) 220.

[40] Marianne Dony, Droit de l’Union européenne (7th edn, Éditions de l’Université de Bruxelles 2018) 266.

[41] ibid 268.

[42] Patrick Dollat, Droit européen et droit de l’Union européenne (3rd edn, Sirey 2010) 395.

[43] ibid.

[44] Marianne Dony, Droit de l’Union européenne (7th edn, Éditions de l’Université de Bruxelles 2018) 276-277.

[45] Gerard Conway, EU Law (Routledge 2015) 69.

[46] ibid 58.