The European Court and National Courts

Doctrine & Jurisprudence: Legal Change in its Social Context

Anne Marie Slaughter, Alec Stone Sweet, Joseph Weiler, Anne Marie Slaughter, Alec Stone Sweet, Joseph Weiler

• Publisher: Hart Publishing
• Year: 1998
• Print ISBN: 9781901362268
• eBook ISBN: 9781847316776
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The essays comprising this volume are the outcome of a major and unique project which looks in detail at the application of EC law by national courts and the interaction of the demands of EC law with the constraints imposed by national legal orders and, especially, national constitutional orders. The volume comprises seven country studies which are shaped around a common research protocol. These are supplemented by three cross-cutting studies which draw on the country studies as well as on broader contextual research work aimed at trying to understand the role of the European Court of Justice in the round. The results of this multi-national research are certain to provoke widespread interest among scholars of European law, international law and European politics, for they offer the first systematic and rigorous attempt to assess the impact of the ECJ among the leading member states of the European Union.

PART I: NATIONAL REPORTS

1

Report on Belgium

HERVÉ BRIBOSIA

GENERAL INTRODUCTION¹

This chapter is divided into two parts. The first part describes the doctrinal (legal) evolution of the notions of direct applicability and the primacy of EC law in the Belgian legal order. However, it appears necessary to enlarge the scope of investigation in two directions; first, a full comprehension of the Belgian legal order’s stance vis-à-vis the EC legal order requires an examination of its relations with international law in general; secondly, the direct applicability and the primacy of international/EC law are facets of more comprehensive concepts relating to relations between the international/EC legal order and states’ legal orders, namely the conditions for the domestic applicability of international treaties and EC law, their domestic effects, and their domestic authority. In that respect, it will be sought to determine, in addition to the content of the rules governing the relations between the legal orders at issue, the legal foundation—municipal, international or EC—of those rules. This second enlargement of the study seeks to analyse the approach of Belgian law to the distinction between monism and dualism, and hence, to the Kompetenz-Kompetenz issue.

The second part makes some observations on the social and political context in which the Belgian doctrinal stance towards European integration has evolved. For this purpose, it endeavours to depict relationships and influences between the three highest Belgian courts, namely, the Cour de cassation (Cass.), the Conseil d’État (CE), and the new constitutional court, the Cour d’arbitrage (CA). Furthermore, it comments on the relationships between the various legal actors—“la doctrine” and “jurisprudence”²— between the politico-constitutional actors—the executive, the Parliament and the Constituent Assembly—and between the legal and politico-constitutional actors. Accordingly, the first part prepares the way for the second by narrating the parallel and chronological evolution of those actors.

DOCTRINAL REVIEW

The direct applicability of international treaties is a concept with two different meanings which are very often confused in both doctrine and jurisprudence. The first meaning refers to the conditions of applicability in the municipal system. Apart from rules requiring public notice, these pertain chiefly to constitutional requirements concerning reception in the domestic legal order. The applicability of an international provision is “direct”—it is better to say “immediate”³—if its domestic applicability is not subject to any requirements of this kind: it is sufficient that it has come into force in international law. The other—more common—meaning of direct applicability deals with the domestic effects of international provisions applicable in the state legal order. In its broadest definition, an international convention is “directly” applicable—or produces direct effect—if it can be applied in the domestic legal order without previous domestic normative implementation. As far as primacy is concerned, it is envisaged here firstly as a rule of conflict between municipal law and treaties/EC law. Then, the notion will be related to the source of domestic validity of international and EC law in general, and more specifically to the question of the competence to determine the competence of the European Communities (Kompetenz-Kompetenz).

Conditions of domestic applicability

International treaties: nature of the Parliamentary assent

Unlike international custom, treaties are not “immediately” applicable. Article 167 (previously 68)⁴ of the Belgian Constitution provides indeed that treaties⁵ shall have no effect as long as they have not obtained (Parliamentary) approval.⁶ The legal nature of such Parliamentary assent has been discussed in the Belgian doctrine in terms which may at times appear confusing. Various analyses have been advanced, from the most monist to the most dualist.⁷ Yet, the prevalent conception lies somewhere in between: the Parliamentary assent amounts to a formal statute which introduces the treaty into the state legal order, and hence renders it applicable as such therein.

However, the statutory definition of the Cour d’arbitrage’s jurisdiction may seem to challenge the legal nature of the Parliamentary assent, in a dualist manner. The Cour d’arbitrage is a constitutional court of limited jurisdiction which was created in 1983 in order to enforce the federal division of exclusive legislative competences between the federation and its federated entities, namely the Communities and the Regions. To this end, the court has been given powers—through annulment proceedings and through references for preliminary rulings—to review the conformity of federal statutes, decrees and ordinances⁸ with the constitutional and legal provisions allocating powers. Since 1989, its jurisdiction has been extended to review the compliance of all legislative rules with the constitutional principles of equality and non-discrimination, and with the constitutional provisions regarding education (former articles 6, 6bis and 17 of the Constitution, currently articles 10, 11 and 24).⁹ What is relevant for present purposes lies in the fact that, within the scope of its jurisdiction, the Cour d’arbitrage is also entitled to review the validity of federal statutes, decrees and ordinances functioning as Parliamentary assents.¹⁰ How then can the Cour d’arbitrage’s power to review the substantive validity of Parliamentary assents be explained other than by regarding them as substantive statutes? How may the fact that the unconstitutional character of a treaty rebounds on the Parliamentary assent thereto be explained other than by implying that the assent incorporates the content of the treaty? An answer—consistent with the prevalent more monist doctrine— has been inferred from the first decision of the Cour d’arbitrage that reviewed the constitutionality of a Parliamentary assent:¹¹ namely, that Parliamentary assents correspond to an “individual decision” consenting to the introduction of the treaty. The validity of such consent accordingly depends on the constitutionality of the treaty.¹²

European Community law

The Community treaties do not exhibit any peculiarity as far as the conditions for their domestic applicability are concerned: as with any other treaty, they must be granted Parliamentary assent. Conversely, Belgian courts have never questioned the jurisprudence of the Court of Justice (ECJ) proclaiming the principle of the immediate applicability of secondary EC legislation, although the doctrine remains divided as to whether unilateral acts of international organisations in general must be granted Parliamentary assent.

With respect to directives, it may be wondered whether the states’ powers over the “means and methods” are only a matter for implementation, or whether they also require an act of reception.¹³ In any event, the Conseil d’État has implicitly admitted the immediate applicability of directives—at least after the deadline for transposition has passed—in a case in which it applied a directive which had not then been transposed, by annulling a conflicting ministerial decree of deportation.¹⁴

Direct applicability

Belgian courts have for a long time accepted their jurisdiction to apply and interpret international treaties, as well as to decide that they confer on individuals rights and obligations.¹⁵ They did not wait either for the PICJ opinion of 3 March 1928 apropos the free city of Danzig’s civil servants, or for the progressive jurisprudence of the ECJ or the European Court of Human Rights, though it is true that Belgian jurisprudence subsequently exhibited particular development in these two areas. The question of treaties’ domestic effects has been dealt with abundantly by the doctrine and is one that arises before the Belgian courts with increasing frequency. Nevertheless, controversies remain over the definition and the basis of such effects. Not surprisingly the answer to these two questions affects the extent to which treaties in general, and EC law in particular, are domestically applicable.

International treaties

The direct effect of a treaty provision is usually defined senso stricto, as the creation of rights in favour of individuals which they can invoke before their national courts, without need for domestic measures of implementation.¹⁶ This conception is characterised by the combination of two criteria: individual applicability, and applicability without previous implementation. It presumes that treaties which do not confer rights on individuals before previous implementation in national law create obligations only in the international legal order, which are therefore enforceable only in that system. It implies that treaties’ domestic effects amount to their direct effects senso stricto.¹⁷ Such a conception was first propounded in 1963 by the Procureur général of the Cour de cassation, R. Hayoit de Termicourt.¹⁸ It was espoused a year later by both the Cour de cassation¹⁹ and the Conseil d’État.²⁰ The Cour de cassation proclaimed it in its landmark decision in the Le Ski case,²¹ and has subsequently confirmed it ²² though often only implicitly. Lastly, the Cour d’arbitrage too— which includes international treaties in its reference standards, indirectly through the constitutional principle of equality of rights and liberties accorded to the individuals²³—has confined itself to that strict conception of direct effect, and hence of domestic effect.²⁴

Today this conception of direct effect is being undermined by the doctrine.²⁵ The definition of direct effect senso lato does not retain the criterion of individual applicability: a treaty provision is directly applicable if its domestic applicability does not require previous domestic normative implementation.²⁶ In that perspective, treaties that simply require states to enact national rules²⁷ become part of “the law of the land” (légalité objective) as soon as the treaties have been introduced by Parliamentary assent, even though they do not necessarily confer subjective rights and obligations on individuals. The individual can invoke such a treaty, by means of the appropriate judicial remedies, in order to disapply or annul any national rule conflicting with it. He also could bring an action for damages because of the violation by a public authority of the treaty considered as a measure having validity in the national legal order.²⁸

It is not surprising that it is has been the Conseil d’État,²⁹ and more recently the Cour d’arbitrage³⁰—in cases referring to article 13 (2) of the International Covenant on Economic, Social and Cultural Rights—which have concurred with the doctrine and have accordingly reconsidered their jurisprudence. Their jurisdiction is indeed largely concerned with annulment proceedings or, in the case of the Cour d’arbitrage, with preliminary rulings on constitutional validity (contentieux objectif) ; and the locus standi to bring an action before those two courts consist of a mere interest, without need for the existence of a “subjective” right. Yet, such an evolution is remarkable in the case of the Cour d’arbitrage because—as mentioned above—its jurisdiction with reference to international law is only indirect.³¹ As for the ordinary courts and the Cour de cassation—whose jurisidiction is mainly determined by the existence of subjective rights—they too have potential jurisdiction to recognise direct effects senso lato by setting aside a national rule, or by awarding damages for a breach of legality. However, in a recent case relating to the same article 13 (2), the Cour de cassation appears to have adhered to the strict definition of direct effect.³²

As far as the source of direct effect is concerned, the traditional Belgian conception conforms with the 1928 PICJ opinion cited above: the intention of the contracting parties is a necessary and sufficient condition of the direct applicability of treaties. In contradiction to this, the new trend both in doctrine³³ and jurisprudence³⁴ tends to recognise direct effects of treaties lawfully introduced whenever their provisions are self-sufficient, i.e. they are sufficiently clear, precise and complete to be applied without prior implementation.

This trend of resorting to objective criteria—disregarding or even contradicting the will of treaties’ authors³⁵—stems from several factors.³⁶ Such a method simplifies the task of national judges who are confronted with more and more treaties, contracted by a larger and larger number of parties. It also allows the judges to interpret national law in conformity with the treaties as far as possible in order to prevent the state from failing to meet its international obligations. Above all, it is worth noticing that, apart from the Cour de cassation, the thesis of an objective source for direct effect has evolved alongside the extension of its definition: they both promote the extensive domestic application of treaties. This tendency of Belgian judges can be explained in part by their internationalist outlook, or by the fact that judges favour the application of rules irrespective of their source as long as they are relevant to the case at issue. Lastly, Belgian judges have undoubtedly been influenced by the ECJ’s jurisprudence on this matter.

European Community law

The only measures for which EC treaties expressly provide direct application are regulations. Nevertheless, it is well known that the ECJ is inclined to acknowledge a general presumption in favour of direct applicability for both the EC treaties and secondary legislation. The Court’s assumption of jurisdiction to rule on direct effect presupposes that the foundation for direct effect lies in the EC legal order. And by refering to th...

Table of contents

• Cover
• Title
• Copyright
• Prologue
• Contents
• Contributors
• Table of Cases
• Table of Legislation
• PART I: NATIONAL REPORTS
• PART II: COMPARATIVE ANALYSES
• Index