6. Sources of the Principle of Effectiveness

There is some autonomy left for the member states of the EU. This is, however, not absolute because in order to ensure effective and uniform application of EU law, the ECJ has formulated two requirements which national law must be able to meet in procedures where EU law rights are involved: the principle of equivalence or nondiscrimination and the principle of effectiveness or minimum protection.57 More recently, a third requirement has come into place. National rules of procedure and remedies must comply with fundamental rights as guaranteed by the ECHR.

We can conclude that in international law, effectiveness has its place. In EU law, the principle of effectiveness operates in the implementation and the execution of EU law. An effective procedural framework is a minimum norm. The framework is also seen as a general principle of EU law, which sometimes functions as a background principle and sometimes as underlining other principles. There is also a strong role in the development of the principle by the ECJ, in which the norm of effective judicial review is prominent. The consequence of these developments in international and EU law is that all the institutions on both levels are involved in the development of this principle of effectiveness.

6. Sources of the Principle of Effectiveness

In international law and in EU law, the sources of the principle of effectiveness are international and EU regulations, their implementation at the national level, and the case law on the different levels. At the national level, effectiveness has for a long time not been regarded as a legal norm. Thus, many lawyers have not been particularly interested in the discussion about the concept of effectiveness. At the same time, lawyers were concerned with effectiveness in the context of legislation becoming ‘effective’ at a certain moment.

However, lawyers are no longer uninterested in the principle of effectiveness. There are three reasons for the need for lawyers, even at the national level, to open their eyes to this principle and treat it as a legal principle. The first reason is internationalization and a growing interdisciplinary approach, both of which have grown enormously over the last ten years. The second reason is the importance of an effective transposition, implementation, and execution of international and European regulations at the national level. The third reason is conceptual: when there is a relationship between legal norms and facts, focusing only on the legal norm is too restrictive a legal perspective. These three aspects of the effectiveness principle in national administrative law will be elaborated upon below.

(a) Internationalization and interdisciplinary approach The internationalization of national law is growing. The importance of interdisciplinary approaches is growing, not only in the functional fields of law (like economic law, financial law, and environmental law) but also in the general fields of law, like administrative law (and public administration) and criminal law (and criminology). Both developments have increased the importance of the principle of effectiveness in the field of law. More specifically, administrative law has in the last twenty years started

57 Widdershoven and others 2007, 292 ff.

to focus not only on the protection of citizens but also on the instrumental aspects of administrative law.

(b) Effective transposition, implementation, and execution at the national level At the national level, EU law has to be implemented, enforced, and complied with. The effectiveness of EU regulations depends on the national legal system and the legislative and administrative measures adopted by member states. Effectiveness also depends on whether the member states are implementing EU law in a proper, timely, and effective manner. This effectiveness underlies the EU legal system as a whole.

In national administrative legal systems, the focus is on these questions: which administrative authority is competent; which legal and non-legal instruments are available; which norms have to be fulfilled; which authority is competent for enforcement; and how is legal protection organized? Based on these questions, the member state designs national legislation that will implement European and international instruments.

These national implementation laws are the basis for executive action by the competent authorities using the instruments they need, fulfilling the norms for applying these instruments. Subsequently, we have the phase of enforcement, when there is a violation of the norms of national implementation regulations. We often distinguish here between the supervision and the sanctioning side.

At the national level, a violation of the effectiveness principle can theoretically occur in three different phases: (1) the phase of the implementation of EU law by making national regulations; (2) the phase of the execution of these national regulations; and (3) the phase of enforcement of these national regulations. However, in practice the principle of effectiveness can also be violated by the fourth power because control—as a phase—can also be inefficient.

(c) Effectiveness: interrelation between legal norms and facts In the literature, three fundaments of administrative law are often mentioned: the rule of law, democracy, and the instrumental character.58 In this instrumental fundament, more attention is given to the results and the quality of the administration by choosing different legal and non-legal instruments to realize public aims. The focus is on guidance through law. But this guidance through law for realizing public aims can only be done when conditions of the democratic rule of law have been fulfilled. From that perspective, there should be a balance between these more fundamental legal conditions and the legal instruments to realize the public aims. That is important in the process of making norms, but it is equally important in the compliance and enforcement of these norms. When it comes to compliance and enforcement, there should be a good balance between fundamental norms and instrumental aims.

The instrumental aspects, sometimes qualified as governance aspects, are not only relevant for the quality of administrative work but also for the public interest and hence for the interest of the citizenry. Today, increasing attention is paid to the effectiveness aspects of the law and some notions of legal effectiveness are emerging. The development of the principles of good governance has increased the importance of the

58 Van Wijk, Konijnenbelt, and Van Male 2005, 46.