When worlds collide! Competing visions of the relationship between direct effect and supremacy

Abstract:

This article examines two different models for understanding the relationship between direct effect and supremacy. The “primacy model” argues that supremacy is capable of producing independent “exclusionary effects” within the national legal orders, where a provision of domestic law is incompatible with Community law; direct effect is only relevant if “substitutionary effects” are at issue, where Community law is invoked as a novel source of rights or obligations not already recognized under national law. By contrast, the “trigger model” asserts that, for any provision of Community law to produce an independent effect within the national legal system (whether exclusionary or substitutionary), it must satisfy the threshold criteria for having direct effect; the principle of supremacy is thus a consequence of and dependent upon that of direct effect. The choice between these two competing models can have important practical implications, for example, in the debate about the “incidental effects” of unimplemented directives, or the potential legal effects of Third Pillar framework decisions.

This article examines the conceptual underpinnings of the two models, then explores how far they are supported by the caselaw. It is argued that recent rulings such as Pfeiffer and Berlusconi undermine support for the “primacy model”; but older cases such as CIA Security and Unilever Italia remain difficult to reconcile with the “trigger model”. It is concluded that perhaps the ECJ itself has vacillated over its own understanding of the proper relationship between direct effect and supremacy, making it difficult for commentators to construct any coherent and descriptively accurate theory.