The relationship between European and national law has always been a 'classic' theme of European legal research, but it has gained new importance in recent years. A number of developments in jurisprudence in particular have given rise to the question of the extent to which direct applicability is still the dominating concept determining the relationship between Community law and national law. Factors such as the acknowledged liability of member states for violations of Community law, independently of direct applicability, the acknowledgement of objective judicial review and the emphasis on the protection of rights (in itself a problematic concept, and one which is far from having a settled meaning in Community law), make it clear that the relationship between national law and Community law is much more complicated and multifaceted than was originally thought.
Increasingly, this relationship is being further complicated by a 'third dimension', namely provisions from international treaties (whether or not concluded by the EC itself) which then work their way into both the European and the various national legal systems. In this way, international legal standards can penetrate international legal systems via Community law, independently of the way in which states have provided for their relationship to international law in their constitutions. Closely connected with this is a remarkable phenomenon which can be described as follows: it can be observed in various member states of the EU that the way in which traditional international law penetrates into national law is increasingly being shaped by the 'Community model'. In other words: the relationship existing between Community law and national law, and the doctrines relevant to it, are being carefully transplanted to the relationship between national law and international law, even where the latter has no connection with Community law. In some other member states on the other hand, it seems as though 'the EC experience' is leading to a certain hardening of attitudes on the penetration of international law.
This project section will also include research into the themes of the EC freedoms and 'positive obligations' pursuant to Article 5 of the EC Treaty. In the context of the ECHR, the European Court of Human Rights has linked positive obligations to certain freedoms, and in particular in relation to Article 8 of the ECHR. These obligations relate to the operation of these freedoms in the relationship between individuals. Initially, these obligations were based on Article 1 of the ECHR, which obliges member states to guarantee the freedoms granted by the Treaty to everyone. Later, the obligations were based partly on the freedoms themselves. The EC Treaty also guarantees freedoms itself, which take effect in regulations and directives. The question may be asked whether these freedoms can in fact impose positive obligations on governments independently of any directive or regulation. Just as Article 1 of the ECHR acts as a portmanteau provision, Article 5 of the EC Treaty could also act in that way. This provision, which obliges member states to take all such general or particular measures as are appropriate to ensure compliance with EC law, is in fact primarily designed to apply to the relationship between the EC and the member state, however a certain tendency may be observed in the decisions of the Court of Justice to allow that Article 5 may also be invoked by citizen against the member state. In the decision of the ECJ of 9 December 1997 (Case C-265/95), the Court held that a member state may be obliged pursuant to Article 5 to take measures against individuals impairing the effectiveness of the rules on the free movement of goods. How far does this tendency actually go? What may this tendency mean for the penetration into the Dutch legal system of positive obligations arising out of the ECHR? To what extent are there differences and correspondences?