EU Law- supremacy - was on the exam PDF

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EU Law: supremacy Revision notes  Explain the doctrine of supremacy of EU Law and give an example illustrating what this means from the perspective of decision makers at the national level.

Essay Plan 

Concerns status of EU law in MS

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¨Originates in jurisprudence of CJEU (until recently no specific treaty provision à brings into question hierarchy of sources?)

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A.Van Gend en Loos (cases 26/62) (to be discussed in seminar): Individuals in MS can uphold rights under EU law in national courts in the face of conflicting national law, on the baiss that:

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i.Objective of the treaty was to create common market

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ii.Nationals are subjects of EU law

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iii.New legal order of international law

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iv.EU law intended to limit MS sovereignty

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‘Supremacy’ in simple terms means no more than that tin areas where EU law is relevant to a case before a national court, EU law prevails over national law. This mirrors in some sense the way that we are told in English Law that parliamentary law, in the form of Acts of Parliament, prevails over all the forms of English law. The practical consequence according to Chris turner, then, of this supremacy is that wherever there is a conflict between the national law of a Member State and EU law itself it is Eu law that must be applied. While there is no actual mention of the principle within the Treaties, it is simple to see why the European Court of Justice created and then developed the principle of the supremacy: the fundamental objective of creating a single Internal Market demand a that there should be harmonization between Member States, which in itself then depends on a uniform application of EU law within the Member States. The whole structure of the community was founded on the idea of supranationalism. Without supremacy of EU law the institutions would be deprived of supranational effect and uniformity might instead be sacrificed to national self-interest.

In this way, the real justifications for the existence of doctrine of supremacy are twofold; firstly, it prevents any possibility of a questioning of the validity of EU Law within the Member States themselves. Secondly it fulfils what is sometimes referred to as the ‘doctrine of Pre-emption’, and it does in two ways; the fact that EU law is supreme means that national courts in Member States are prevented from producing alternative interpretations of EU law and, the existence of such a doctrine also means that the legislative bodies of the individual Member States are prevented from enacting legislation that would conflict with EU law.

According to Nigel Foster, the closest the Treaties come is in the so – called ‘ duty of loyalty’ contained in Art 10, EC treaty which can be paraphrased in the following terms: ‘ Art 10, Member States Shall take all appropriate measures.. to ensure fulfillment of the obligations arising out of this Treaty or resulting from any actions taken by the institutions. They shall abstain from any measure which could jeopardies the attainment of the objectives of the Treaty. Article 10 is now repealed and amended by the Lisbon Treaty. The European Court of Justice, then, has been proactive and instrumental in ensuring that the objectives of the Treaties are

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achieved in the Member States, and in doing so supremacy has been a powerful toll in its hands. According to Douglas-Scott the full economic integration necessary for the achievement of a Single Market would have proved impossible if it had been possible for Member States to ignore or even deliberately defy the supranational powers of the institutions of the EU. Declaration 17 of the Lisbon Treaty identifies merely that ‘in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties and the law adopted by the Union on the Basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law’.

The earliest indication of a concept of supremacy comes from the judgement of the ECJ in the case of Van Gen den Loos v Nederland’s Administrative der Belastingen (case 26/62) (1963) the case involved an introduction of a Dutch law which was contrary to obligations imposed on Member States in an EC Treaty Article. Because the Article implicitly conferred rights on individuals and the litigant suffered financial loss as a result of the Dutch Law, an Article 234 reference posed te question for the ECJ of whether or not the Treaty created rights on Behalf of individuals that national courts must then protect. In the reasoned opinion, the advocate – General declared that this was not the case and that the appropriate means of resolution in such circumstances was in an action against the Member under Art 226. The judges in the ECJ disagreed and in their judgement identified that: ‘the community constitutes a new legal order in international law for whose benefits he state have limited their sovereign rights, albeit within fields’.

In a series of important rulings Steiner states that , the European Court of Justice (ECJ) has developed the doctrine of supremacy of European Union (EU) over national law. According to the European Community law, where there is conflict between European law and the law of Member States, European law highly prevails. ‘This has been evident since the case Van Gend en Loos in 1963 where the ECJ clearly stated that ‘the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit

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within limited field’. [1] New legal procedures are demanded by the new legal order to protect the new legal benefit it created. The doctrine of supremacy of Community law had no formal basis in the European Community Treaty, but was developed by the ECJ on the basis of its conception of the ‘new legal order’. Even though the main emphasis of the judgement links to the terminology of direct applicability and direct effect, it is also significant because, by referring to the ‘new legal order’, the ECJ asserted that the Community was not just a ‘normal’ international law organisation. In detail, the Community had a more independent status as well as greater impact on the national legal systems of the Member States.’

In Costa v ENEL [4] the ECJ emphatically established the doctrine of supremacy of European Community law over national law. There are two important observations regarding the relationship between Community law and national law being made by the ECJ. ‘The Member States have definitely transferred sovereign rights to a Community created by them. This process cannot be reversed by means of subsequent unilateral measures which are incompatible to the concept of the Community. In other words, the autonomy of the Member States to act as they wish has been limited by virtue of their membership of the Community. Furthermore, as accordance to the principle of the Treaty, no Member States may call into question the status of Community law as a system to be applied uniformly and generally throughout the Community.’

EU law is absolutely supreme even over provisions of national constitutions. The ECJ has had the opportunity to restate the principle on a number of occasions. On one occasion it was able to expand by explaining that EU law cannot be invalidated by any measure of national law , from whatever source. In the case of Internationale Handelsgesellschaft GmbH [6] , the conflict was not about Treaty provision nor domestic statute, but between an European Community regulation and provisions of the German constitution. ‘The claimant here argued that the regulation infringed, inter alia, the principle of proportionality enshrined in the German constitution and sought to nullify regulations on those grounds. The constitution is superior in the hierarchy of legal rules to statute law and this is the reason why any ordinary law in breach

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of the constitution is invalid. However, the European Community law had been incorporated into German law by statute, the Act of Ratification. There was no provision in the constitution that the constitution could be overridden by European Community law. Article 24 GG merely provided for ‘the transfer of sovereign powers to intergovernmental institution’. Therefore, the question before the German administrative court was: If there were a conflict between the regulation and German constitution, which law should prevail? As in Costa, the German judge referred the question to the ECJ and his own federal constitutional court.’ [7]

In Simmenthal case [8] , the ECJ emphasized that supremacy of European Union law affects both prior and future legislation. ‘The fact of the case is that Simmenthal was made to pay a fee for a public health inspection when importing some beef from France to Italy. This was laid down by an Italian law passed in 1970. It was then contrary to the European Community Treaty and two Community regulations passed in 1968 respectively. The Italian authorities have raised two significant points when the case began. First, that the Italian law must prevail because it was passed after the two Community regulations. Secondly, Italian law had to be applied by the Italian courts until such time as it had been declared unconstitutional by the Italian Constitutional Court even if the Italian courts conflicted with Italy’s treaty obligations. Eventually, it was held that the national courts have to comply to the Community provisions and not to apply any conflicting provision of national legislation, even if it had been practiced consequently.’ [9]

Apparently, the obligation to ignore conflicting national law was demonstrated more pointedly in Factortame case [10] . ‘The conflict here arose between a few provisions of the European Community Treaty which prevent discrimination on the grounds of nationality and Part Two of the provided that fishing boats registered in the United Kingdom (UK) which were fishing for the quotes allocated to the UK by European Community must be owned and managed by UK citizens. It was later held that parts of the Merchant Shipping Act 1988 were incompatible with the relevant provisions of the European Community Treaty. Here, the

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outcome was that any legislation passed or to be passed in the UK must be interpreted with applicable European law in mind.’ [11]

Morten Rasmussen stated in the article ‘Revolutionizing European Law: A history of Van Gend En Loss Judgement” that ‘There are some States such as Belgium, handled the doctrine of supremacy of European Union law with relative ease. However, some other States like the UK, France and Italy have started to accept the supremacy gradually, after a lengthy process.’ [12] After the acceptance of Community Supremacy in the UK, the judges approach conflicts between European Community law and Parliamentary legislation in a particular way. Tony Storey opines that they are given considerable guidance by the European Community Act 1972 which was passed by Parliament to make provision for Britain’s membership of the Community. Section 2(4) of the Act indicates that any legislation ‘passed or to be passed...shall be construed and take effect subject to’ the preceding terms of the section, one of which enforces directly effective rules of Community law in the UK. [13]

In the past, the absence of written constitution in the UK which declares the sovereignty of the people and also the sovereignty of the constitution is filled by the doctrine of parliamentary sovereignty, or known as supremacy. Sovereignty is the fundamental rule of the common law, for it is the judges who uphold parliament’s sovereignty. Avbelji in the Article ‘Supremacy or primacy of EU Law – (why) does it matter? (2011) that the Sovereignty will remain the ultimate rule of the constitution for as long as the judges accept the sovereignty. [14] ‘On the other hand where a written constitution exists, it will have come into being either by a grant of independence from a formerly sovereign power or through a revolution. It is known as ‘autochthonous’ [15] when the constitution arises from the native authority of the people. The citizens entrusted power to the government. It is firmly held belief that government holds its power on ‘trust’ for the people.’ [16]

Albert Venn Dicey, who was a British jurist and constitutional law theorist, stated that ‘The principle of sovereignty means neither more nor less than this: namely, that Parliamentary

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thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.’ In brief Nigel foster stated that , three basic rules can be deduced from this description. First, parliament is the supreme lawmaking body and is allowed to enact law in any subject matter. It means that there is no limit on the subject matter on which parliament may legislate. Thus, parliament may legislate to alter its term of office. Second, no parliament may be bound by a predecessor or bind a successor. ‘The rationale for this aspect of Dicey’s definition of sovereignty lies in the recognition that for a body to be sovereign it must be, in Austin’s word, illimitable. It follows, therefore, that each parliament must enjoy the same unlimited power as any parliament before it. No parliament can enact rules which limit future parliaments. [18] It is this aspect of Dicey’s definition which give rise to the most argument and which requires the most careful analysis.’ [19] Lastly, Nigel Foster stated that no one may question the validity of parliament’s enactment. True it is, that what the Parliament doth, no authority on earth can undo. [20] ‘As has been seen, an Act will be accepted as valid by the courts provided that it has passed through the requisite legislative stages and received royal assent. Regardless of the subject matter of the Act, it will be upheld by the judges. However, in the time before the 1688 settlement, it was not uncommon for judges to proclaim that an Act of Parliament could be held to be invalid because it conflicted with some higher form of divine law.’ [21]

At a conceptual level, the manner in which international law, of which Community law may be regarded as a sui generis ( that is to say, unique) example, is dependent upon whether a particular state adopts monist or dualist approach to international law. As Weatherill opines that ‘When international law and national law form a single whole, or part of the same conceptual structure, in which international law takes precedence, it is known as monism.

In contrast, dualism regards the systems of international law and national law as separate. Some domestic legislation must be enacted by the national parliament in order for international law to enter into national law. UK had adopted this view and remains consistent

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with the sovereignty of parliament.’ Douglas – Scott emphasizes , the UK’s dualist approach to international law indicates that international treaties ratified by the UK are not part of the UK domestic law. If it is to be enforced at the domestic level, they must be incorporated by an Act of Parliament. Theoretically, the sovereignty principle makes it very difficult for the supremacy of Community law over later Parliamentary legislation to be guaranteed, this is according to S Enchelmair’s article. It seems vulnerable to any later Act of Parliament which contravenes or contradicts it, expressly or impliedly, since the Act of Parliament which incorporates European Community law makes it domestically binding.’ [24] In short, it is said that Treaties are part of international law, and can have no effect in domestic law unless and until a statute of the sovereign UK Parliament is enacted to enforce them. ‘In 1972, Lord Denning MR confirmed this view in the case of Blackburn v Attorney General [25] by asserting that ‘Even if a Treaty is signed, it is elementary that these courts take no notice of treaties as such. We take no notice of treaties until they are embodied in laws enacted by Parliament, and then only to the extent that Parliament tells us.’ For that reason, the signing of the European Community treaties had no effect in English law without any further parliamentary action. In order to have effect, it was necessary for parliament to pass the European Communities Act 1972.’ [26]

‘The manner in which, and extent to which, the UK courts have accommodated Community obligations requires consideration. First, it should be noted that nothing in the European Communities Act 1972 represents an attempt to entrench its provisions, that is to say, to make them immune from amendment or repeal. Likewise, there is no statement in the Act purporting that European Community law is a ‘higher form of law’, or that the Act cannot be repealed, or could be repealed but only by some specified ‘manner and form’. Chris turner states that It is evident that the doctrine of implied repeal does not operate in relation to the European Communities Act 1972.’

As a dualist state without a written constitution the status of Community law in the UK derives from the European Communities Act 1972. To what extent does that Act enable the British courts to give effect to the principle of supremacy of EC law?’ [28] J Woods believes that

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the most significant provisions here are ss. 2 and 3. ‘Section 2(1) of the European Communities Act 1972 makes the concept of direct effect a part of the UK legal system. It reckons law which under the EC Treaties is to be given immediate legal effect to be directly enforceable in the UK. The English courts are directed by section 2(1) to enforce any directly effective European Community measures. There is no need for a fresh act of incorporation to enable UK courts to bring into effect each European Community Treaty provision, regulation, or directive which according to the European Community law has direct effect.’ [29]

Subsequently, section 2(2) provides for the implementation of Community obligations, even when they are intended to replace national legislation and Acts of Parliament, by means of Order in Council or statutory instrument rather than by primary legislation only. [30] This is subject to Sch. 2. Schedule 2 lists the ‘forbidden’ areas, such as the power to increase taxation, to introduce retrospective measures or to create new criminal offences. These area apart, s2(2) thus allows for ongoing domestic legislation over the whole field of objectives of the Treaty. [31]

Section 2(4) is the section relevant to the question of primacy. It does not expressly say EC law is supreme. Under this section, any enactment passed or to be passed, other than one contained in this part of this Act, such as an enactment of a non-Community nature, shall be construed and have effect subject to the foregoing provisions of this section, such as obligations of a Community nature. [32] The Schedule to which the provision refers sets out a number of powers, such as increasing taxation or legislating retroactively, which cannot be exercised by Order in Council or by delegated legislation, even if they are necessary to comply with a Community obligation. [33] It seems an Act of Parliament will be needed for these powers.

Under Section 3(1) any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law and, if not referred to the ECJ, be determined in accordance with the principles laid down by theECJ. [34] The provision makes the decision of the ECJ on the meaning and effect of

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European Community law authoritative in UK courts, giving them, t...