Supremacy Of Eu Law

Front 1

Van Gend en Loos

Back 1

The Community constitutes a new legal order in international law, for whole benefit the states have limited their sovereign rights, albeit within limited fields

Front 2

Costa v ENEL

Back 2

By contrast with ordinary international Treaties, the EEC Treaty has created its own legal system which has become an integral part of the legal systems of the Member States.

Front 3

Article 4 TEU

Back 3

requires MEmber States to take all measures to ensure fulfilment of Treaty obligations and to obstrain from measures that could jeopardize Treaty objectives

Front 4

Internationale Handelsgesellschaft

Back 4

the EU law takes precedence over all forms of national law, including national constitutional law. Moreover, national courts must set aside national provisions that conflict with EU law

Front 5

Simmenthal

Back 5

national courts must apply EU law in its entirety. Any conflicting national law must be set aside, whether prior or subsequent to the EU rule

Front 6

Factortame

Back 6

The Court of Justice held that the full effectiveness of EU law would be impaired if a national rule could prevent the grant of interim relief in relation to EU rights.

Front 7

European Communities Act 1972, s 2(1)

Back 7

All such rights, powers, liabilities, obligations and restrictions created or arising by or under the treaties are without further enactment to be given legal effect

Front 8

ECA 1972, s 2(4)

Back 8

any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section.

Front 9

Factortame II

Back 9

Under the terms of the 1972 Act it has always been clear that it is the duty of a UK court, when delivering final judgments to override any rule of national law found to be in conflict with any directly enforceable rule of EU law

Front 10

Bulmer v Bollinger

Back 10

the EEC Treaty is like an incoming tide. It flows into the estuaries and up to the rivers. It cannot be held back. Denning's judgment revealed a certain ambivalence about the new legal order. Not only was the Treaty equal in force to any statute, but on questions of Community law, the European court is supreme. It is the ultimate authority, even if the HL has to bow down to it.

Front 11

Primacy doctrine of EU law - existential reading

Back 11

Implies the supremacy of EU law, ie the idea that EU law has higher rank than even the national constitutions and is hierarchically superior to it (Simmenthal)

Front 12

Primacy doctrine - a more modest view

Back 12

Implying a more practical priority or precedence as in traffic rules. The aims of the Treaty cannot be accomplished if domestic law was to prevail over EU law.

Front 13

Consequence of the doctrine

Back 13

EU law has a very significant impact both on the legislation and the administrative and judicial practices of the MS.

Front 14

Costa v ENEL (1)

Back 14

The creation of the EU being of unlimited duration and with its own law-making institutions, has involved a transfer of power, whereby States have limited their sovereign rights. Argument weakened by its insistence that it was by creating the EU that MS limited their sovereignty. What about UK - joined after creation. Dualist state. It is state that ultimately governs supremacy.

Front 15

Costa v ENEL (2)

Back 15

Teleological argument based on the need for uniformity in the common market. The EU would probably have succeeded without the supremacy doctrine and might have benefited in the long term from having shown greater degree of constitutional tolerance towards its MS.

Front 16

Costa v ENEL (3)

Back 16

Unconditional, and not merely contingent nature of the Treaty implied that it was supreme. The flaw in this argument is that many international treaties could claim to have provisions which are precise. Would render dualist approach to international law impossible.

Front 17

Costa v ENEL (4)

Back 17

Definition of Regulations - Art 288 TFEU - shall be binding, directly applicable. This does not explain why the Treaty itself should have supremacy.

Front 18

Factortame

Back 18

The purpose of direct effect is to ensure that provisions of EU law prevail over national provisions.

Front 19

Netherlands

Back 19

Amendment to Constitution in 1963 recognising supremacy of EU law over national law, including the Constitution itself.

Front 20

United Kingdom

Back 20

Problems: Parliamentary sovereignty, dualist approach.

Front 21

Garland v British Railway

Back 21

Domestic courts often base the application on the conflicting principles of parliamentary sovereignty and supremacy on the ECA 1972 rather than on any abstract notion of supremacy stemming from the Treaty

Front 22

McCarthy v Smith

Back 22

Lod Denning stated that 'we are entitled to look to the Treaty as an aid and overriding force because of the ECA'. Where domestic legislation is inconsistent with EU law, it is 'our burden to give priority to EU law'

Front 23

Lister v Forth Dry Dock; Dickstone v Freeman

Back 23

the courts are treading gently on domestic law and using purposive pproach to ensure compatibility with EU law.

Front 24

Factortame (No 2)

Back 24

a further acceptance of EU law. UK court disregarded Parliamentary sovereignty and suspended a national provision. However, Lord Bridge stated it is the duty of the court to do that because of the ECA.

Front 25

European Act 2011, s 18

Back 25

implicitly states that the UK can always pull out from the EU and gain back its full sovereignty. These can be seen as a limit to the principle of supremacy as it is not autonomous and MS can disregard it. Moreover, the principle only applies in areas of competence of the EU. That excludes national security for example.

Front 26

Germany

Back 26

the Basic law (Art 25) provides that 'the general rules of public international law constitute an integral part of federal law and take precedence over statutes and directly create rights and duties. . German courts accept supremacy where there is no conflict with the Constitution.

Front 27

Solange I

Back 27

in the hypothetical case of a conflict between EU law and a part of national constitutional law, or of the guarantees of fundamental rights in the Constitution, the latter prevails as long as competent organs of the EU have not removed the conflict

Front 28

Solange II

Back 28

so long as the Union ensures an effective protection of fundamental rights, substantially similar to the level guaranteed under German law, the national courts should refrain from exercising their jurisdiction to review the legality of EU acts according to the German constitution.

Front 29

Brunner

Back 29

affirmed that the supremacy of the EU law within the German legal system is not unconditional. The ultimate jurisdiciton is with the FCC to police the compatibility of Union measures with the German constitution.

Front 30

Banana case

Back 30

a more cooperative approach by the German court which elected not to address the issue of competence by way of
obiter dicta in a case based on fundamental rights. Held rights in the EU sufficiently protected.

Front 31

France

Back 31

Main obstacle was initially the jurisdictional limitation of the French courts. Under the French Constitution, the Constitutional council is the sole body which has the power o decide on the constitutionality of legislation.

Front 32

Semoules

Back 32

the Supreme Administrative Court rejected the supremacy doctrine by ruling that it could not find the legislation to be incompatible with EU law since is has no power to review the validity of French legislation

Front 33

Cafe Jacques Vabres

Back 33

Cour de Cassation held that where a conflict exists between an internal law and a duly ratified international treaty, the Constitution itself accords priority to the latter by means of Article 55 which provides that 'treaties or agreements duly ratified or approved shall, upon publication, prevail over acts of Parliament. The conceptual basis on which supremacy is accorded to EU law is the Constitution itself, and not the reasoning in Costa.

Front 34

Nicole

Back 34

Supreme administrative court had failed to recognise the primacy of EU law over the Constitution itself. Thus, EU law is held to rank above statute but below the Constitution. In a case of conflict between EU law and the French constitution, EU law cannot be applied unless the conflict has been removed by a constitutional amendment.

Front 35

ERTA

Back 35

supremacy applies not only to internal domestic law, but also to obligations undertaken by States towards third countries.

Front 36

Honeywell

Back 36

German courts remain open and friendly towards the process of European integration but the principle of supremacy is very much a conditional one and its continued enforcement within Germany should not be taken for granted.