#17342 - Supremacy - GDL EU Law

The Principle of Supremacy: EU law is supreme over domestic law

• Costa v ENEL [1964]

  • EU legal order is distinct from all other legal systems.

  • EU law is an integral part of domestic law.

  • MSs have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.

  • EU law is supreme because ether member states wished it to be so.

    • This is a teleological and textual approach.

• Internationale Handelsgesellschaft [1970]

  • At the time was considered that EU had nothing to do with Human Rights

  • Held Scope of supremacy is unlimited, any EU law takes precedence over any national law, other EU law would not be effective.

Enactment of Supremacy

• Internationale Handelsgesellschaft [1970]

  • Alleged clash between and EU regulation and the principle of proportionality which was protected under the German constitution.

  • Respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice.

• Simmenthal II [1978]

  • Were inspections carried out on the Italian boarder compatible with EU law - no.

  • “every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”

  • Individuals gain rights at the cost of MSs sovereignty

  • EU measures are immediately effective, need not wait until the measure is set aside.

• Reflects Art. 4(3) TEU: : “Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties”

• Factortame (I) [1990] – Procedural problem in so far as the court in question was not allowed to provide interim relief as was being requested by plaintiffs.

  • It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.

UK

• European Communities Act 1972: Act of Parliament that binds to the principle of supremacy.

• Factortame (No. 2)[1991]

  • Lord Bridge: whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.

  • This is purely based on domestic principles not EU principles.

• Thoburn v Sunderland CC [2002]

  • Laws J: The ECA is a constitutional statute: that is, it cannot be impliedly repealed

• R (Miller) [2017]

  • Do we need an act of parliament to notify EU of our withdrawal.

  • Held we require express repeal

    • We follow EU judgement s because sovereign parliament has asked us to do so, if this parliament asked us to do otherwise we would do otherwise.

In Germany

• Solange I (1974)

  • What if supremacy violated human rights?

  • Held every time there is a clash between constitution and EU legislation, German courts retain the right to check if the EU measure protects human rights at the same level as the German constitution.

  • A power that was reserved but never used.

• Solange II (1986)

  • Intervening period EU introduced its own protection of Human Rights, therefore argued that they no longer needed to check the compliance with human rights every time.

• Brunner (1993)

  • Re ratification of Maastricht, some people challenged as unconstitutional for giving up too much power.

  • Court dismissed but at the same time reminded the world that the states are the masters of the treaties - ECJ was being warned to interpret the treaties too broadly.

• Lisbon Treaty (2009)

  • Same as Brunner but for Lisbon

  • “According to the constitution, such integration steps … must, in principle, be revocable.”

• Honeywell (2010)

  • Regarding age discrimination: plaintiff argued ECJ went too far

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