Direct effect of Union law and the Belgian Conseil d'État : What Repercussions for the Resolution of the Cornerstone Conundrum?

Abstract

Les goûts et les couleurs ne se discutent pas, la primauté et l'effet direct ne cessent de se discuter. While it is pointless to discuss matters of tastes and colours, the legal scholarship has not ceased to see the benefit of discussing the cornerstone principles of primacy and direct effect. This debate persisted due to the perceived inconsistencies in the case law of the Court of Justice of the EU on the matter, seemingly requiring provisions of Union law to have direct effect before allowing them to generate independent effects vis-à-vis conflicting national measures before national courts in some cases, while letting go of this requirement in others. After decades of lively discussion, clarity was finally provided by the Court in Popławski II and Thelen Technopark, where it stated that for such independent effects to be generated on the basis of Union law by itself, direct effect is indeed necessary. After exploring this debate, the paper veers west of Luxembourg in inquiring whether this clarification is likely to alter the future case law of Belgium's highest administrative court, the Conseil d'État. Analysis of selected cases shows that, despite legal scholarship questioning the consistency and necessity of such a requirement, the Conseil d'État can be considered to generally require provisions of Union law to have direct effect before allowing them to generate independent effects in the dispute at hand by virtue of their precedence over conflicting national measures. No change in the case law of the Conseil d'État is thus likely to follow the clarifications to the decade-old debate on the role of primacy and direct effect by the Court in Popławski II and Thelen Technopark.