#17729 - Supremacy Of Eu Law Notes - European Law

][Supremacy of EU Law Notes

What is supremacy?

Definition

The doctrine of supremacy is stated in Declaration 17 attached to the Treaty of Lisbon:

“In accordance with the well settled case law of the CJEU, the Treaties and the law adopted by the Union … have primacy over the law of member States, under the conditions laid down by said case law”

NOTE: declarations are not legally binding. However, this does not seem to matter – an annex to the Declaration provided an opinion of the Council Legal Service which states that “The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice”

Dashwood has described the principle of supremacy as being a manifestation of the principle of sincere cooperation (Article 4(3) TFEU).

• The principle does not render contrary national provision to be invalid, but rather requires them to be “disapplied” so far as they are incompatible with EU law (IN.CO.GE)

De Witte has said that there are two possible interpretations of primacy:

1. It merely requires national courts to find a way to recognise the principles and achieve the result imposed by the CJEU

2. National courts have no choice and cannot resist the authority of EU law

This latter interpretation implies that national Courts are exercising a jurisdiction attributed to them by EU law, and not a jurisdiction granted by their own constitution.

• Many EU law scholars adopted the latter view, whilst national courts (with the possible exception of the Netherlands) adopted the former view

Limitations

It is important to note that, supremacy is not totally unconditional. There are two important limitations on its operation:

1. CJEU Case Law

   • Under the CJEU’s own case law, it can be seen that supremacy is limited – sometimes it must be balanced against equally fundamental principles of the EU legal order (for instance, legal certainty or legitimate expectations.

     • EU law therefore constitutes a limit to primacy

   • Kuhne and Heitz

     • Facts: The question was asked whether or not supremacy might require national authorities to reopen decisions that have become final where it becomes apparent from a subsequent CJEU judgement that the national cases were decided on the basis of a misinterpretation of EU law

     • Held: Legal certainty is one of the general principles of EU law and implies that there is no general requirement in principle to reopen a decision even where it is incompatible with certain provisions of EU law

   • Asda Stores

     • Held: The CJEU refused to sanction the enforcement against individuals of (valid) EU legislation which had not been adequately published

   • Defrenne

     • Held: the CJEU limited the effects of its judgement to the future in order to preserve legal certainty

2. Member State Courts

   • Member State courts have, for the most part, had difficult accommodating the CJEU’s vision of supremacy into their domestic constitutional structures

     • The UK

       • s2 ECA 1972 is a clear attempt to give legislative force to supremacy, but it clashes with fundamental principles of British constitutional law

         • In particular, it conflicts with parliamentary sovereignty which prevents Parliament from curtailing the fullest legislative prerogatives of a subsequent Parliament

       • In Factortame (No 2) the House of Lords accepted a compromised through the implied supremacy clause which was inserted in to all pieces of subsequent legislation

         • Whilst this gave practical force to the principle of supremacy, its source and justification remained in Parliamentary sovereignty

         • The consequences of the implied supremacy clause is that if Parliament expressly derogated from s2 ECA 1972, then English courts would be obliged to give effect to that subsequent provision over supremacy

       • In Thoburn, Laws LJ said that “the fundamental basis of the UK’s relations with the EU rests with the domestic, not the European, legal powers”

     • Germany

       • Whilst German judges remain open and friendly to the process of European integration, the principle of supremacy is condition and its continued enforcement with Germany should not be taken for granted

       • Solange I – it was suggested that in the event of a conflict between EU rights and rights contained in the German constitution, the latter would prevail

       • Solange II – as long as the EU generally 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

       • Brunner – supremacy is not unconditional within the German legal system.

         • The BVerfG has the ultimate jurisdiction to police the compatibility of EU law with the German constitution with regards to fundamental rights but also with regards to ultra vires review

       • Bananas – the BVerfG refused to exercise is reserved jurisdiction to review because Solange II and Brunner had been respected

         • NOTE: the German administrative and tax courts had declared the bananas regulation unlawful and inapplicable in German territory

       • Lisbon – even after Lisbon, the EU remains an association of sovereign states founded upon international law, whereby Member States continue to provided the primary focus of democratic expression for their own citizens

         • The BVerfG warned that this “union of national states” must be taken seriously by reasserting its ultimate right of review

       • Honeywell – this developed the terms on which ultra vires review would be conducted – it will apply in relation to a “sufficiently serious” violation

   • The position of supremacy in relation to national courts has been met with mixed views

     • MacCormick argues that it encourages a constructive dialogue

       • BUT: Reich question the legitimacy of a dialogue where domestic courts unilaterally reject Treaty obligations entered into by elected bodies

How have the EU courts developed the supremacy of EU law?

General

The EEC Treaty contained no provision dealing with the supremacy of Community law over national law. The development of the principle has been the result of the CJEU’s case law.

It first touched in the issue in in the early years of the Community, where the court referred to the Community as establishing a new legal order

• Van Gend en Loos

  • Facts: The reclassification of a product imported into the Netherlands resulted in a higher level of customs duty. This was contrary to Article 20 TFEU which provided that no new customs duties would be imposed.

    • There was, as such, a conflict between the national customs regulation and the Treaty article

  • Held:

    • AG: AG Romer said that Community law does not just consist of contractual relations between a number of States considered as subjects; it has its own institutions, independent of the Member States , endowed with the powers to […] make rules of law which directly create rights in favour of and impose duties on Member States as well as their […] citizens

      • The Treaty creates provisions which are clearly intended to be incorporated in national law and to modify or supplement it; but on the other hand “large parts of the Treaty” expressly refer to the obligations of Member States and do not contain rules having a direct internal effect

      • NOTE: AG Romer’s Opinion highlights the complexity of EU law. If the EU is more than contractual relations, it nevertheless remains that it does consist of contractual relations between Member States who are masters of the Treaties. It has its own institutions, but these institutions represent various interests in the Union. It can make laws that directly create rights and duties for citizens, but these powers must be exercised within limits of competence. The Treaty itself is a complex instrument, with provisions clearly intended to be incorporated in national law, provisions that expressly refer to the obligations of Member States, and provisions that are ambiguous and could go either way

    • CJEU: The purpose of the EEC Treaty is to create a common market, the functioning of which directly affects the citizens of the Community. The treaty is thus more than an agreement creating only mutual obligations between the contacting parties.

      • This interpretation is confirmed by the preamble to the Treaty which, in addition to mentioning governments, affects individuals.

      • The creation of organs institutionalizing certain sovereign rights, the exercise of which affects both member-States and citizens is a particular example. In addition, the nationals of the States, united into the Community, are required to collaborate in the functioning of that Community. Furthermore, the role of the Court of Justice,the aim of which is to ensure uniformity of interpretation of the Treaty by the national courts, confirms that the States recognised in Community law have an authority capable of being invoked by their nationals before those courts.

      • We must conclude from this that the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited field, and the subjects of which comprise not only the Member States but also their nationals

        • The CJEU relied on the various creations of the Treaty (institutions and so forth) and their ultimate effect on both the Member States and the citizens of the Community

The Beginnings of Supremacy

Very shortly after its allusion to supremacy in Van Gend en Loos, the CJEU established the doctrine properly.

• Costa v ENEL

  • Facts:...