Reading time: three minutes

Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) is seen as significant for two reasons. Firstly, in its application of the European Economic Treaty, it established direct effect. This has developed to mean that an individual can rely on European Union (EU) law in national courts if it confers rights on the individual and is also "clear", "concise" and "unconditional". Secondly, Van Gend en Loos’ direct effect was used in Costa v Enel in establishing primacy of EU law. This blog will examine each principle, the distinction and its limits. Ultimately, a collaboration of the principles has shaped the EU legal order.

Direct effect is revolutionary in itself for its rights-based approach and impact on member states. The court in Van Gend en Loos reasoned that the treaty does not "merely create mutual obligations between contracting states", but also refers to its citizens. It was also suggested that member states have "acknowledged community law authority...which has limited their sovereign rights". With the treaty, a binding international agreement, as direct effect’s premise and the mutual understanding of states, citizens are empowered to take recourse through EU law in domestic courts. Remaining six decades later, direct effect serves this function as the strength of the European community is visibly apparent. 

Van Gend en Loos’ direct effect was the premise of primacy in Costa v Enel, but it went further. Through limiting their sovereign rights, it was held that member states have "created a body of law which binds both their nationals and themselves". This is due to the unique nature and objectives of the treaty compared to ordinary international agreements. Further, it was held that if states could unilaterally override community law, it would become "meaningless". While this is rational, it should only be expected of monalist systems, which already have EU law incorporated in their national law. However, the courts did not clarify this.

Member states have been reluctant to accept EU law primacy; one instance is Germany’s conditional acceptance in the Solange I case where the court reasoned that EU law ought to take precedence as long as it does not infringe Germany’s constitutional protection of fundamental rights. While Germany conceivably overstepped by imposing its own criteria in community law, this requirement is sensible. Firstly, respect for the foundational norms of a country is a given; without this condition, there'd be no checking ability of EU law. Secondly, citizens have rights to these fundamental rights as well as those conferred through direct effect and supremacy. It's nonsensical to discard one in the pursuit of the other.

Both Van Gend en Loos and Costa v Enel relies on "communautaire reasoning", that the systemic principles that have been derived are inherent in the treaty. Nevertheless, the Lisbon decision in 2009 creates doubt as to this absolute authority through the "identity lock". It was held that EU law "only applied by virtue…of constitutional empowerment" as "the guarantee of national constitutional identity under constitutional and under Union law go hand in hand". Arguably, there is no unequivocal primacy as EU law then derives its authority from its member states. However, it's questionable if this does diminish supremacy due to the conceptualisation and acceptance of EU supremacy across member states. This is illustrated even in dualist states, like the UK with Factortame. Lord Bridge explains that even if Van Gend en Loos and Costa v Enel’s textual-based reading of the treaty is insufficient reasoning, the intention of the EU on primacy was "certainly established in the jurisprudence of the Court of Justice long before the United Kingdom joined the community". Van Gend en Loos is then the basis for the evolving relationship between national and EU law.

Ultimately, because Van Gend en Loos conferred rights to individuals that had not been explicitly expressed from the treaty, Costa v Enel could use both this principle and method of interpretation to develop the primacy of EU law. While there have been some limitations imposed by national courts, the EU legal order has been generally accepted and successful in its objectives. This is with the help of both direct effect and the primacy of EU law as the basis so it's futile to separate the two.