Daniele Gallo: L’efficacia diretta del diritto dell’Unione europea negli ordinamenti nazionali. Evoluzione di una dottrina ancora controversa, Milano, Giuffré, 2018, 513 págs.

It is not by chance that, following one of the most salient judgments ever delivered in the history of the European integration,^‍‍[1] there is an increasing call for a refreshed understanding of constitutional pluralism (Dani, M., Mendes, J., Menéndez, A. J., Wilkinson, M. A., Schepel, H. and Chiti, E. (2020). At the End of the Law. A Moment of Truth for the Eurozone and the EU. Verfassungsblog.de [blog], 15-5-2020. ‍Dani et al., 2020). As the claim to priority over national laws raised by the EU has been seriously contended at the States’ level, it is felt necessary to get back to the foundations of EU law and to read anew the categories that have undergirded the EU’s constitutionalisation path. A more profound comprehension of these categories would help both policing the boundaries of such “priority” – spelt out in the conceptual pair “direct effect & primacy” and capturing the limits that it must accept when countered by so called “identitarian arguments” (Weiler, J. H. H. and Lustig, D. (2018). Judicial review in the contemporary world: Retrospective and prospective. International Journal of Constitutional Law, 16 (2), 315-372. Available at: https://doi.org/10.1093/icon/moy057‍Weiler & Lustig, 2018: 362).

Thus, it looks simply timing to read a book that, albeit two years old already, has proved somehow prophetic: in fact, it offers several keys to answering such questions and unveils arguments that display the conditions for, and the limitations to, the operability of the “direct effect & primacy” abovementioned pair.

Daniele Gallo’s book revisits the turbulent evolution of direct effect as intertwining with primacy and gives reasons to believe that the last chapter of this story has not yet been written. In fact, the message this book launches is twofold, which leaves the reader excited and bemused at once. On one hand, there is admittedly an increasing need for the Court of Justice to turn back to constitutional times and to “crystallize the common core of the EU legal order” (Gallo: p. 429) by more intense and meditated ‘judicial activity’.^‍‍[2] On the other hand, likewise admittedly, there is a certain lack of solid legal arguments to back such crystallization: the rationale behind the pair above said exposes a link with “une certaine idée d’Europe” which makes it a wishful thinking, rather than consolidated law (Barents, R. (2004). The Autonomy of Community Law. The Hague: Kluwer.‍Barents, 2004: 45; 59; 130). Then, as the book highlights, it would be for the Court of Justice to reshape direct effect and primacy in accord with that rationale: the refrain “giving individuals access to law” echoes a pluralistic framework in which the individuals’ contributions to lawmaking via judicial review enhanced the EU law legitimacy despite the lack of any such thing as a “general will” to support the legitimation of such law. This was the template of the Communities at their dawn (Vauchez, A. (2015). Brokering Europe: Euro Lawyers and the Making of a Transnational Polity. Cambridge: Cambridge University Press. Available at: https://doi.org/10.1017/CBO9781107326323‍Vauchez, 2015: 44): in this context, “we the Court” (Poiares Maduro, M. (1998). We the Court: The European Court of Justice and the European Economic Constitution. Oxford: Hart Publishing.‍Poiares Maduro, 1998: 56) as the fulcrum of a multilevel judicial network (Pernice, I. (1999). Multilevel Constitutionalism and the Treaty of Amsterdam: European. Constitution-Making Revisited? Common Market Law Review, 36 (5), 703-750. Available at: https://doi.org/10.1023/A:1018744426756‍Pernice, 1999: 703) would act as the gateway for citizens to shape the law they abide by. It is undoubted that this can only occur by means of legal arguments securing legal certainty within a pre-set political landscape: the landscape that arose in the aftermath of WWII and consolidated within a common political framework as a result of the Soviet Union’s demise.

Yet, in the eye of the reader, such reasoning takes the form of a circular argument. According to the author, the Court of Justice should return to operational activities securing legal certainty within a common political framework; but it is that framework what looks controversial in the same view of the author, and this infuses whatever legal arguments with unavoidable doses of political sensitivity – which would impair the law’s certainty and disrupt the idea of EU law as a judicial product (Martín Rodríguez, P. J. (2016). A Missing Piece of European Emergency Law: Legal Certainty and Individuals’ Expectations in the EU Response to the Crisis. European Constitutional Law Review, 12 (2), 265-293. Available at: https://doi.org/10.1017/S1574019616000158‍Martín Rodríguez, 2016: 265). Conclusively, it seems that such heated political arguments exceed the possibility of the multilevel judiciary, which risks not meeting the expectations of the advocates of enhanced legal integration.

The author is perfectly aware of the loophole that corrodes such an argument, as he accounts for the “still” controversial doctrine of direct effect. The literature cited gives a “state of the art” of the “classic” EU doctrine, with special inclination towards Italian, French and English speaking worlds; the case-law mentioned is rich and carefully analyzed; plus – curiously, with perfect timing in a backward perspective – the research is updated to end 2017, just a moment before the Italian Constitutional Court crafted an identitarian argument in response to the Court of Justice in Taricco^‍‍[3] which prevented the application of art. 325 TFEU from dismantling the national rules on penal prescription (Piccirilli, G. (2018). The ‘Taricco Saga’: the Italian Constitutional Court continues its European journey. European Constitutional Law Review, 14 (4), 814-833. Available at: https://doi.org/10.1017/S1574019618000433‍Piccirilli, 2018: 814; Faraguna, P. (2018). Roma locuta, Taricco finita. Diritti comparati.it, 5-06-2018.‍Faraguna, 2018).

All this considered, there is room to designate Gallo’s book as a potential “classic” championing a perspective that is national and Europeanist at once – one that thinks of the EU as a self-reflexive polity (Bast, J. (2005). Einheit und Differenzierung der Europäischen Verfassung – der Verfassungsvertrag als reflexive Verfassung. In J. Bast, and Y. Becker (eds.). Die Europäische Verfassung – Verfassungen in Europa (pp. 34-60). Baden-Baden: Nomos.‍Bast, 2005: 34). What it supplies is a valuable account of how the direct effect doctrine has developed, and on what foundations; hence, it provides key elements for today’s most urgent debates – namely, to which extent the foundations of EU law can support the sovereign claim to priority that EU law itself raises.

The book is divided into two Sections. The First Section offers a detailed overview of the direct effect in its original times, crucial to which is the link between the Community representing “a legal order of a new kind” i.e. different from any international law system previously established, and the centrality of the individual as a legitimate claimant of rights that States where uncapable of, or reluctant to, recognize. The Second Section highlights the evolution of direct effect “beyond the Van Gend & Loos doctrine” to describe its nature as “polysemic, mutable, objective” while shedding light on its relations with primacy in the development of the case-law of the Luxembourg Court. The story terminates by the fascinating portrait of a “hypertrophic primacy” that has “cannibalized” direct effect (Gallo: p. 394) by enforcing the EU law claim to priority at any cost, absent the conditions sedimented in the case-law – which would cast doubts on the respect for the legal limits arisen accordingly.

The First Section begins with a detailed account of the Van Gend & Loos background: the arguments formulated by the plaintiff, the Commission’s endorsement, the more moderate position of the Advocate General and the final judgment of the Court are all carefully analysed. The political origin of the reasoning deployed is obvious in the Commission’s stance claiming that “EU law be applied effectively and uniformly in all Member States” (Gallo: p. 9). Advocate General Roemer relied on German national case-law and strove to keep alive the Lotus doctrine, according to which limitations to national sovereignty should never be presumed (Beaulac, S. (2019). The Lotus Case in Context – Sovereignty, Westphalia, Vattel and Positivism. In S. Allen, D. Costelloe, M. Fitzmaurice, P. Gragl and E. Guntrip (eds.). Oxford Handbook of Jurisdiction in International Law (pp. 40-58). Oxford: Oxford University Press. Available at: https://doi.org/10.1093/law/9780198786146.003.0003‍Beaulac, 2019: 40). As Dutch constitutional law accepts the priority of international law over national law on condition that it has “direct application” – he argued – special attention should turn to whether Community law had direct application; and, though he shared the Commission’s assumption that Community law not only establishes an inter-State order but contains an array of provisions addressed to the citizens directly, he endorsed the view that the core of the effectiveness relating to the Community legal order refers to the function of public enforcement carried out by the Commission, rather than to the judicial enforcement performed by the Courts. In this vein, he read Art. 12 TEEC as a multifaceted norm whose main recipients were (not individuals, but) national Governments. Hence, he offered a more prudent interpretation of the “will of the Founding States”: they were – he added – perfectly aware of the restrictions to uniform application that the Treaties’ layout entailed, and accepted that design nevertheless.

What this story renders is a picture that clearly fits the German Planungsverfassung doctrine, the “constitution-to-be” set out by international lawyer and key adviser to the Government in the post-WWII negotiations Carl Fredrich Ophüls. The influence of this theory (Ophüls, C. F. (1965). Die Europäischen Gemeinschaftsverträge als Planungsverfassungen. In J. H. Kaiser (ed.). Planung, I – Recht und Politik in der Planung in Wirtschaft und Gesellschaft (pp. 229-245). Baden-Baden: Nomos.‍Ophüls, 1965: 229) goes precisely in the direction that the author points at: the Lotus doctrine is bypassed by virtue of the Community being a legal order of new kind due the original intent of the Founding States – whence a virtually irrefutable presumption could be derived in favour of expanding, in width and depth, the “scope of application” (Bartoloni, M. E. (2018). Ambito di applicazione del diritto dell’Unione europea e ordinamenti nazionali. Napoli: ESI.‍Bartoloni, 2018: 62) of Community Law. This doctrine adds to the right-based construct that the Court of justice erects, according to which there is a link between direct effect and the EU’s recognition of rights and liberties to individuals in spite of the States’ hesitation to do so. Gallo, though not citing Ophüls, implicitly witnesses to the influence of his discourse: he offers a detailed account of how this link has operated in the creation of the whole ‘constitutional toolkit’ (Shaw, J. (2000). Constitutionalism and Flexibility in the EU: Developing a Relational Approach. In G. de Búrca and J. Scott (eds.). Constitutional Change in the EU: From Uniformity to Flexibility (pp. 331-357). Oxford; Portland (Oregon): Hart Publishing.‍Shaw, 2000: 342) deployed by the Court of Justice to enforce the uniform application of EU law. In this vein, the emergence of a judicial network in the increasing practice of preliminary review goes hand in hand with the correlation between rights and remedies the Court has regularly maintained with a view to improving the protection of rights in what was going to become a “multilevel” legal space of rights and freedoms Europe-wide.

The Second Section follows the trajectory of the “objectivization” of the direct effect doctrine, which results in more nuanced lines of reasoning articulated by the Court of Justice in order to expand the width and depth of the Community law’s influence over national legal orders even when the link with individual rights and liberties appears loosened, or wholly lacks. The manifold use of the direct effect concept to this (still, political) aim is well depicted in the “chameleonic fashion” (Gallo: p. 163) that direct effect itself acquires.

Key to this account is the dichotomy between “subjective-substitutive” and “objective-oppositional” direct effect. In the first case, direct effect 1) confers a right on the claimant and 2) replaces the national norm. In the second case, direct effect 1) does not confer a right directly on the claimant, but somehow gives her factual or legal advantages; furthermore, 2) it does not replace the national norm but in some other ways prevents its application for the benefit of the claimant.

Whether such a second type of direct effect exists under EU law is controversial. The positions maintained relate to the overall understanding of the relations between national and EU law. Whereas some scholars tend to preserve the link between direct effect and a claim for rights and liberties – thus questioning the operability of direct effect should such a tie evaporate or be missing altogether – others aim to include a broader set of legal arguments within the direct effect category, yet mutually discerning each argumentative line to give a more comprehensive picture of the priority that EU law claims over national laws (Gallo, p. 169; pp. 240-‍241). Others, too, in a strictly monist fashion, tend to consider direct effect as a temporary feature of EU law, “an infant disease” (Pescatore, P. (2015). The Doctrine of “Direct Effect”: An Infant Disease of Community Law (1983). European Law Review, 40 (2), 135-153.‍Pescatore, 2015: 135) that would prove unnecessary once Community law is recognised as uncontested superior law in the guise of a federal order – which ‘ought to be’, according to some, the current case nowadays (Baquero Cruz, J. (2018). What’s Left of the Law of Integration? Decay and Resistance in European Union Law. Oxford: Oxford University Press. Available at: https://doi.org/10.1093/oso/9780198830610.001.0001‍Baquero Cruz, 2018: p. 27).

In this context, Gallo opts to defend legal pluralism, and yet he maintains that an oppositional-objective direct effect is configurable under EU law (Gallo, p. 243).

He raises six points to support his line of argument:

The apparent heterogeneity of the arguments raised points to the decreasing rigueur of the concept itself. Gallo does not dispute that opening the door to a more vaguely defined category of direct effect would result in blurring the boundaries of such concept: he argues that this has been precisely the case in the Court of Justice’s evolutionary path. Particularly, the set of requirements pointing at the existence of a clear, precise and unconditional EU norm for direct effect to occur has been reduced by the Court, he contends, to merely ascertaining the unconditional nature of that norm (Gallo, p. 202). This is crucial to the twofold conclusion he derives: 1) eventually, direct effect has been refined “à la carte” (Gallo, p. 177) in the Court of Justice’s case-law, and 2) the extreme flexibility of the concept further increases when so-called “programmatic norms”(Gallo, p. 185) come under attention, particularly the rights provided for in the Charter (Gallo, p. 195).

In the author’s view, this looks like a good reason to acknowledge the broadened scope of the direct effect notion with a view to controlling the evolution of case-law, so as to avoid a tout court extension of the primacy’s concept regardless to the conditions for direct effect to apply.

In this light, Gallo underlines the variety of terms and the distinct semantic areas evoked by the rather imprecise language of the Court. His focus shifts to the concept of “invocabilité” of a right, as well as on the diverse terms used to describe the priority that EU law must be conceded in rather different cases. He ties such diversity to the different pre-comprehension that each Community law scholar owes to her national studies’ background. Such diversities, somehow intrinsic to the EU, add to the laconic reasoning regularly displayed in the judgments to account for the difficulties in setting the scene of a better established, more ‘legal certainty-friendly’ doctrine of direct effect. This regular overlap of concepts and arguments has tarnished the right-based construct as grounds for direct effect to occur and paved the way to a multifaceted figure of the EU law priority claim. In this respect, Gallo envisages a description with four circles. In the first circle, the broadest, stands what he calls “efficacy” lato sensu, i.e. “priority” as the most elementary content of the claim that EU law raises over national law. This circle contains a sub-circle, labelled direct efficacity, in which the twofold elements of “subjective-substitutive” and “objective-oppositional” direct effect stay aligned; the space between the circles belongs to indirect applicability and hosts the concepts of damages’ liability and consistent interpretation. Yet, such circles are neither perfectly concentric nor perfectly coincident; rather, they appear as continuously deforming and interfering with one another in a continuous motion of re-arrangement of the EU law priority claim.

Most recently, the author concludes, the Taricco ruling has demonstrated that the direct effect has been swallowed by pure primacy; i.e., that EU law can claim priority in the starkest form of direct effect even when there is no possibility that the claimants obtain a right, or an empirical advantage, from EU law being applied with priority over national law.

This reasoning, one may say, acquires a special force within the domain of the European Monetary Union (López Escudero, M. (2015). La nueva gobernanza económica de la Unión Europea: ¿una auténtica unión económica en formación? Revista de Derecho Comunitario Europeo, 19 (50), 361-433.‍López Escudero, 2015: 361; Markakis, M. (2020). Accountability in the European and Monetary Union. Oxford: Oxford University Press. Available at: https://doi.org/10.1093/oso/9780198845263.001.0001‍Markakis, 2020: 50). It has been noticed that in Rimšēvičs^‍‍[5] the Court of Justice backs a claim that has potential to invade several EU law domains (Sarmiento Ramírez-Escudero, D. (2019). El TJUE cruza el Rubicón Báltico. Almacenderecho.org, 5-3-2019.‍Sarmiento Ramírez-Escudero, 2019; Bast, J. (2019). Autonomy in Decline? A Commentary on Rimšēvičs and ECB v Latvia. Verfassungsblog.de [blog], 13-5-2019.‍Bast, 2019; Hinarejos, A. (2019). The Court of Justice annuls a national measure directly to protect ECB independence. Common Market Law Review, 56 (6), 1649-1660.‍Hinarejos, 2019: 1649). Additionally, a similar trend is discernible in cases concerning national measures implementing Memoranda of Understanding (MoU) agreed on with a State who requests financial assistance under the relevant legal framework, be it within or outside EU. In such cases, the Court of Justice scrutinizes national law implementing the MoU against the background of the Charter, that law being seen as direct implementation of an act of (signed by) the EU institutions (Donaire Villa, F. J. (2019). ¿Los derechos en serio en la Eurozona? Los recortes, las condicionalidades, la Carta y el Tribunal de Justicia. Revista de Derecho Constitucional Europeo, 29.‍Donaire Villa, 2019; Poulou, A. (2017). Financial assistance conditionality and human rights protection: What is the role of the EU charter of fundamental rights? Common Market Law Review, 54 (4), 991-1025.‍Poulou, 2017: 991); yet, this runs in obvious derogation to the principle of conferral.

Gallo’s book stops just before Taricco’s last stage, i.e. when the Italian Constitutional Court rules out an EU law priority claim that is felt as overwhelming, hence intolerable. It is, therefore, a genuine account of a pro-Europe line of legal reasoning and political understanding that is today under severe contestation, as the confrontation tends to degenerate in the dichotomy “Europeanists v Sovereigntists”. Nonetheless, within such a trite polarization, the road to re-affirming constitutional pluralism, hence a peaceful balance of rights and duties in the European legal space (von Bogdandy, A. (2016). European Law Beyond ‘Ever Closer Union’ Repositioning the Concept, its Thrust and the ECJ’s Comparative Methodology. European Law Journal, 22 (4), 519-538. Available at: https://doi.org/10.1111/eulj.12198‍von Bogdandy, 2016: 519) displays in Gallo’s most powerful conclusion: