Eu 6 supremacy - precise notes PDF

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Eu 6 (supremacy) What is supremacy? o When two legislative wills come into conflict, which one should prevail? o Eg federal law vs state law o Centralized or decentralized solution? – depends  Supremacy in EU context? o When EU law conflicts with national law, which one should prevail? o EEC treat...

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Eu 6 (supremacy)  What is supremacy? o When two legislative wills come into conflict, which one should prevail? o Eg federal law vs state law o Centralized or decentralized solution? – depends  Supremacy in EU context? o When EU law conflicts with national law, which one should prevail? o EEC treaty – no provision on supremacy o Costa v enel  Supremacy question was shed some light on  Refused to pay electricity bill as a protest to nationalization of utilities  Against EEC treaty (1957)  Italian govt : lex posterior (lego) priori :italian law was formed 1962 so later law should apply  European court : EEC should apply , supreme over national law  Courts reasoning :  New legal order o It’s a new legal order which is different from regular international treaty. Real powers derived from transfer of sovereign power from MS. Had its own legal personality . o Spirit of the treaty  MS signed the treaty giving power to an institution (EU) if changed could be made , then no point in signing the treaty o Unconditional enforceability

 If MS strays away from treaty , enforceability will be compromised and the power of community and the treaty would be compromised o Textual argument  Art 189  Regulations are binding  Directly applicable to MS  Problem: not all eu law are directly applicable  Express provision o Constitutional treaty – supremacy clause – but unratified o Lisbon amendments : declaration 17 on primacy o Supremacy added as a declaration

Executive nature of supremacy  In cases of conflict, the national law needs to be set aside for the conflicting national legislation  Supremacy doesn’t render national law invalid  Can legislators adopt acts that would run counter to existing European law?  Courts said : yes o National courts under the obligation to disapply this particular act when in conflict with eu law  The nation has supremacy but sincere cooperation is required (article 4 TEU)  The union and MS assist each other to fulfill obligations mentioned in the treaty and must respect the EU law  Advantaged of supremacy o A remedy  The question of who may invalidate national law is left to national legal order

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 National law must be not applied to the extent to which iit doesn’t conflict with EU law. It can remain operational in purely internal matters  Once the union acts is revoled, national legislation may become fully operational again  How supreme is EU law? o Is it supreme over international laws signed by MS o Art 352 – pre dated international law should be applied o Limitation  If it is internal, eu law should be applied  If it is external , pre dated law should be applied  Case t-325/01 Lack  UN charter predated the European treaties  So it should prevail?  European court of justice argued otherwise  When it comes to fundamental rights, eu laws prevails for MS o Relative scope to EU law  Case 11/70 internationale handel….  German constitutional > eu law  Held – yes eu law prevails over national law  C399/11 stefano melloni v ministero fiscal  Article 53 of the charter  EU law should allow national constitution with higher protection prevail?  CJEU : such interpretation would undermine eu law  Judical activism?  Has CJEU run wild? – treaty never mentioned supremacy  An existential necessity ?  Is absolute supremacy essential? National perspective

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 Some MS accept some don’t like germany  Germany o Art 23 german constitution transfers sovereignty to union o They accept the supremacy but not in cases of  Human rights  Union competence o Germany : fundamental brights  Solange 1  FFC rejected EUs absolute supremacy approach  Transfer of sovrignity is limited to fundamental rights  German law prevails if there is no same level of protection under EU law  Eu law evolved and now they have similar level of protection  FFC said they have the last word  Presumption that eu law is now compatible with german law  FFC won’t use it’s jurisdiction so long as EU law provides compatible fundamental rights protection o Germany: competence  Who checks the EUs competence  Should national courts decide  ECJ position :, case 324/85  National court can’t disapply eu law  Matter exclusive for the ECJ  German court didn’t agree  Eu law is supreme  FCC will continue to exercise power of ulta vires review  Fcc can disapply eu law if it isn’t covered in the treaty  Honeywell  Eu law is supreme

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 Bit fcc will continue to exercise a power of ultra vires review  Fcc has the power to dissaply EU law  There is presumption that eu will act within the scope of its competence  Fcc will intervene only in the manifest infringement of the principle of conferral  Gauweiler case  Check slides again  All bark no bite  Will not intervene  Pspp case  German court said eu court acted ultra vires , as they didn’t consider proportionality test  Powerful blow to the supremacy principle  Very controversial decision as proportionality principle is applied differently with different states UKs perspective on eu law supremacy  Obstacles o Principle of parliamentary sovereignty o Dualist approach to international law  Any International law has to go through the parliament o Parliamentary sovereignty  Parliament is supreme  Clashes with EU laws supremacy o Factortame 2,  Argued that the legislation was against the EU law as discrimination on the grounds of nationality isn’t allowed  Appeal Court : uk court doesn’t have jurisdiction  House of lords : same^  Eu law is supreme, but only because parliament consented

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 Conflict should be resolved in favor of eu law unless the parliament intends to derogate from it o Monist v dualist  Monist – becomes part of domestic law directly  Dualist – parliament has to be implement o Thurburn  Eu law is supreme  Recognized by virtue of domestic legal process  Depends on what kind of statute  Constitutional or ordinary o Constitutional statuted  R(miller) v secretary of state  Who has the authority to trigger art 50 and leave eu  The power to withdraw from treaties falls within the royal prerogative

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