5. Supremacy Essay (2018 Resit Q8) PDF

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GOOD SUPREMACY ESSAY...

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2018 Resit Question 8 In 1981, Professor Stein said: 'Tucked away in the Fairyland Duchy of Luxembourg [...], the Court of Justice of the European [Union] has fashioned a constitutional framework for a federal-type Europe.' Discuss this statement in light of the way in which the principle of supremacy has been developed in the case law of the CJEU and has been received by the EU Member States. When the original European Community was established in 1957, it required a transfer of sovereignty for certain specific areas of policy from the Member State to the Union. This meant that some legal matters that had been the sole prerogative of a member state were no longer within its control. This inevitably led to a situation of conflict between national and EU law. Yet if the European Union was to fulfil its aims, it was necessary that such conflicts were speedily resolved, with a minimum of uncertainty. However, this question raised constitutional problems of varying magnitude for all member states. The primary source of EU law, the Treaties, contain no specific mention of any priorities in the relationship between national and EU law. However, in the view of the CJEU, the legal basis on which the Union rests necessarily presupposes the supremacy or primacy of EU law. Under international law, the question is resolved by the constitutional rules of member states concerned. Principally, it will depend on the means by which international law in incorporated into the domestic law of that member state. There are two approaches to this incorporation, in that the leg systems of States are generally either mooniest or dualist in their approach to international law. In mooniest states, such as France, all law is treated equally, in the sense that national courts can apply international treaties, as long as the appropriate constitutional procedures have been followed. In the case of conflict with national law, mooniest countries usually recognise the supremacy of Treaty provisions. However, in dualist states, such as the UK, international treaties can never be applied by national courts, and only domestic legislation can be brought about by the international treaties. Thus, the Ec Treaty has to be specifically incorporated to domestic law. In the UK, this was achieved by he European Communities Act 1972, specifically Sections 2 and 3. However, whatever the method of incorporation used by the member state, this does not in itself settle the question of priorities. The CJEU has placed great importance upon the uniformity of application of EU law in member states, and the desire to see that the Union was not weakened by diversity in interpretation or application. Therefore, it is understandable that the Court would develop its own constitutional rules to ensure that where there was a conflict between Eu and national law, it would be EU law which prevailed. It was in the case of Van Gend en Loos that the CJEU took its first tentative steps in this process. The case was an Art 288 TFEU preliminary reference from the Dutch courts on whether Art 30 TFEU had direct effect. The Court took the opportunity of declaring that 'the Community constitutes a new legal order in international law, for whose benefits the States have limited their sovereign rights, albeit within limited fields.' In Costa v Enel, the Court went further when asked a specific question by the Italian court on the priority of EU and national law. With the transfer of sovereignty upon mentioned in Van Gend 'comes ... a clear limitation of their sovereign rights upon which a subsequent unilateral law, incompatible with the aims of the Union, cannot prevail.' Thus, by establishing a European Community, now the EU, with real powers, the member states created a body of law which applies to their nationals as well as to themselves. In the important case of Internationale Handelsgesellshaft mbH, the Court was concerned with a conflict between an EU regulation and provisions of the German Constitution protecting fundamental rights. Under German law, the Constitution was superior to a statute. As a country with a mitigated dualist legal system, it was necessary for the EU Treaty to be incorporated into the national legal system and the vehicle used to do this was a statute. Thus, given that there was no provision in the Constitution to allow it to be overridden by EU law, the company claimed that the regulation should be nullified. Which should prevail: the regulation or the Constitution? The Court took a very strong view and insisted that the legality of an EU Act cannot be nullified by national law. The German Constitutional Court was concerned about the lack of protection for fundamental rights within the Community and stated that until this changed, the fundamental rights provision of the German Constitution would take priority. This would not mean that would rule on the validity of a Union Act, but rather they would not mean that they would rule on the validity of a Union Act, but rather they would conclude that such a measure could not be applied in Germany. This did not happen in the Internationale case or in any subsequent German case, but it does indicate a possible conflict in particular circumstances. A similar conclusion occurred in the Frontini case, only here it was the Italian Constitution's protection of fundamental rights which was involved. The constitutional Courts in both Germany and Italy were not happy with the hard line taken by the CJEU. The important difference is that the Italian Constitutional Court has repeated the possibility of declaring that a Union measure may not apply in Italy as was held in the Fragd case in 1990.

Thus, as far as the European Court is concerned, all EU law, regardless of whether it is a Treaty provision, a EU Act or an agreement with a third country, must take priority over all subsequent EU law. In the absence of any specific Treaty provision, how can this be justified? It in fact reflects the approach of the Court, which is pragmatic and pro-Union based on the purpose, the general aims and the spirit of the Treaty. In its view, Member States apply to join the Union and must therefore take the necessary measures to comply with EU law. The original Community was established with its own institutions which have powers under Art 288 TFEU, with no qualification or reservation, to make laws binding upon all Member States. Regulations are specifically said in Art 288 TFEU to have 'binding force' and to be directly applicable in all Member States. To the Court, this shows a clear indication of the supremacy of the legislative provisions conferred on the Community now Union. If a State could unilaterally nullify its effects by means of domestic legislation overruling EU law, Union legislation would be quite meaningless.

The CJEU has repeatedly used Art 4(3) TEU to emphasise the fundamental obligation upon Member States to implement Union legislation, so that it receives uniform application throughout the EU. Under Art 4(3) TEU, Member States are to abstain from any measure that could jeopardise the attainment of the objectives of the Treaty. Where Member Stated fail to fulfil their obligations, Art 258 TFEU gives authority to the Commission to instigate enforcement procedure. The Union would not survive if States were free to act unilaterally in breach of such obligation. If the aims of the Union are to be achieved, there must be uniformity of application of EU law throughout all the Member States. This will not occur unless all States accord priority to the EU law. In fact, all new members of the Union must accept the principle of acquit communautaire, which requires them to accept not only the Treaties, but the whole body of the Community and now Union law. A final case provides guidance to national judges faced with a case that shows a conflict between a national law and EU law. In Simmenthal, an Italian judge was faced with a conflict between a Council regulation on the common organisation of the market in beef and veg and the Italian veterinary and public health laws. Under Italian law, domestic legislation contrary to EC regulations may be held unconstitutional, but only by the Constitutional Court and not by the ordinary courts. Should the Italian judge of first instance disregard inconsistent national legislation without waiting for its repeal or a declaration from the Constitutional Court making it invalid? The instructions given in answer to the Art 288 TFEU reference were that a national court was under a duty to give full effect to Union law, even if there was a conflicting provision of national law, and without waiting for a higher court to rule on the matter. This is similar to the Factortame case in the House of Lords, where it was accepted that direct effective Union law must prevail over any inconsistent subsequent domestic legislation. Any incompatible national law is automatically inapplicable, because, unless EU law is given priority over conflicting national law at once, from the moment of its coming into force, there can be no uniformity of application throughout the EU. Within a short space of time, the courts of the Member States, despite their different constitutional rules and traditions, have adapted to the principle of supremacy of EU law. This is perhaps due in part to the persuasive judgements of the CJEU and the attitudes of the courts of the member states. They have accepted that Union Law, stemming as it does from the Treaties, has an independent source. It cannot be challenged by judicial process on the basis of any national provisions, however framed, without being deprived of its character as EU law and, more importantly, without the legal basis of the EU itself being called into question. The supremacy of European Union law stems from the Treaties and not from the national constitutions. The special and original nature of the EU law requires that its supremacy over national law is acknowledged. The CJEU recognised the importance of this and, as Lord Bridge stated in the House of Lord's judgement in Factortame (No 2): 'If the supremacy within the European Community over national law of the member states was not always inherent in the EC Treaty, it was certainly well established in the jurisprudence of the Court of Justice.' The decision of the house of Lords was subsequently confirmed in R v Secretary of State for Employment ex p EOC when it was stated that in judicial review proceedings in UK courts, an Act of Parliament can be declared incompatible with EU law....