The ‘Costanzo obligation’ of national administrative authorities in the national legal systems of the Member States Maartje Verhoeven, Dubrovnik, April

The ‘Costanzo-obligation’ In case of conflict between provisions of national law and EC law, administrative authorities are obliged: - to set aside national law - and (if necessary) apply directly effective provisions of Community law instead see for example case 103/88, Costanzo; case C-224/97, Ciola; case C-198/01, Consorzio Industrie Fiammiferi (CIF).

Central Question To what extent does national law enable national administrative authorities to fulfil the obligation to set aside provisions of national statutory law, which are incompatible with directly effective provisions of EC law? Focus on France, Germany and the Netherlands

Tensions in national law with regard to several topics: -The system of separation of powers → The principle of legality -The principle of legal certainty → The division of powers between different administrative authorities

I: The division of powers between different administrative authorities The member state is responsible towards the EC in case of violation of Community law, not the individual administrative authority. principle of national institutional autonomy

Tensions with regard to: - (Dutch/French) Decentralisation -(German) Federalism - Independent administrative bodies

- (Dutch/French)Decentralisation → autonomy → limited control

(German) Federalism Two levels: The federation and the Länder 1: Who has the legislative power? 2: Who has the executive power? → no supervision of application of Länder legislation

Independent administrative authorities/agencies → To what extent has the minister concerned the power to issue instructions?

The division of powers between different administrative authorities General tensions: - Difficulties in supervision - Lack of ‘preliminary procedure’

II: The principle of legality Legality – légalité – legaliteit –Gesetzmäßigkeit: ‘Administrative authorities are bound by certain general applicable rules, and have no powers other than those acquired under these rules’ I: The precedence of statutory law II: The requirement of a statutory basis

I: The precedence of statutory law acts of parliament have priority over ‘understatutory law’ (such as ministerial regulations, etc)

Are administrative authorities empowered to set aside statutory law, which they deem incompatible with directly effective provisions of EC law?

German doctrine: yes but pleadings Germany in DocMorris (joined cases C-171/07 and C-172/07): no, only after a judgment Compare the German case law on incompatibilities between statutory law and the Grundgesetz (constitution) French case law: yes Conseil d’État in Vassilikiotis and Association Avenir de la langue française: a minister can instruct its services to set aside national law, but has to be sure to stay within the limits of their powers! Dutch doctrine: yes Advice of the interdepartmental commission on European Law to contact the ministry which is responsible for implementation, or a centre of knowledge before taking decisions

II: The requirement of a statutory basis ‘Powers of administrative authorities have to be based on a democratic basis.’ -Intervening administration - Service administration ?

Can EC law directly confer powers upon national administrative authorities? - EC Treaty, regulations: yes - directives: no Remark in practise: it should be clear who is competent

Preliminary conclusions -The ‘Costanzo obligation’ is generally accepted in the French, German and Dutch doctrine, although occurring problems are identified -EC law may function as statutory basis for actions of administrative authorities, except for not transposed directives - A tension exists since administrative authorities have their own obligations, but the member state is responsible