EU Supremacy Concept PDF

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Description and explanation of EU Supremacy....

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PRINCIPLE OF SUPREMACY Specific Legal Nature of the EU • Case 26/62 Van Gend en Loos: ◦ Eu law is " a new legal order of international law" for the benefit of which MS have limited their sovereign powers in certain fields • A transfer of considerable sovereign powers to the communities: ◦ Community law created directly applicable rights conferred upon individuals and a supranational enforcement system. • EU law now has the special characteristic of the former EC law ◦ CFSP ( Common Foreign and Security Policy!)law maintains a special place in the EU legal system • Special type of public international law ◦ It provides for certain specific mechanisms for how it should be implemented and enforced by the MS ◦ Has a strong effect within the legal orders of the MS and more sophisticated enforcement system ◦ Founded on international treaties between MS ‣ They have the duty to honor the obligations that they have entered under EU law ‣ In principle they all have the same obligations • Certain differences have developed as a result of political developments ◦ Ex. Schengen law on the abolition of border controls does not apply to some MS (Romania, Ireland, Bulgaria) ◦ EU law also determines the limits of the competences of the union

Incorporation of EU law • The status of the EEC treaty (now the TFEU) was originally determined by each MS's constitutional rules • Status and effect of EEC law varied from one MS to another ◦ Dualist MS: international law is only binding on individuals if it has been adopted by the national authorities and made part of domestic law. ◦ Monist MS: international law automatically forms part of the national legal system once it has been ratified.

Supremacy • There is no treaty provision establishing the supremacy of EU law ◦ But there is declaration 17 concerning primacy • Case 6/64 costa: ◦ The case concerned Italian legislation that was incompatible with the treaty ◦ EU law, because of its special and original nature, cannot be overridden by the national laws of the MS. ‣ Conflicting national law cannot be applied but must be set aside. • Supremacy: EU law takes precedence over any national law which conflicts with it. • The EEC Treaty ( now TFEU): ◦ Has its own legal system which has become an integral part of the MS' legal systems and which their national courts must apply ‣ A union of unlimited duration ‣ Its own institutions ‣ Legal personality ‣ Legal capacity ‣ Capacity of representation on the international plane ‣ Real powers stemming from the limitation of sovereignty or transfer of powers from the MS to the EU ◦ Article 288 TFEU: a regulation is binding and directly applicable in all MS --> confirms precedence ‣ MS have permanently limited their sovereign rights in certain fields: by creating a body of law which binds both their nationals and themselves.!

! Scope of supremacy • Case 11/70 Internationale Handelsgesellschaft: ◦ The principle of supremacy extends to national constitutional law ◦ Supremacy follows from the special nature of EU law itself, independent of what national law of the MS provides • MS disagree on the source of supremacy • National courts have also not always accepted the supremacy of EU law ◦ German courts consider that the most basic aspects of the German constitution must prevail in case of conflict. ◦ Lisbon judgement: the German constitutional court will only exercise its jurisdiction in case of an apparent transgression.

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! Practical Consequences! • Case 106/77 Simmenthal: ◦ The full effectiveness of EU law demands that national courts must set aside any provision of national law that conflicts with EU law, without having to wait for the national law to be formally set saside by a competent national court ‣ A national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provisions by legislative or other constitutional means. ◦ EU law confers national courts jurisdiction to set aside conflicting national rules ‣ Direct applicability means that rules of Community law must be fully and uniformly applied in all the Member States from the date of their entry into force and for so long as they continue in force.

3 main doctrines for the enforcement of EU law developed by the CJEU through its case law 1.

Supremacy: EU law takes precedence over any national law which conflict with it a. Most national courts generally derive the supremacy of EU law from their own national constitutions or fúndamental rights b. Question of Kompetenz-Kompetenz is still unresolved 2. Direct Effect 3. State Liability!

! Solutions to ensure the effectiveness of the principle of supremacy ◦ Making a second reference to the CJEU? ◦ Creation of a mixed chamber to asses whether the principle of conferral has been complied with? ‣ Composed of members of the CJEU and national supreme courts ◦ The grand chamber of the CJEU must decide? ◦ Business ad usual and the MS can modify the treaties if the CJEU has exceeded its competences?

PSPP Judgement: Decision of the ECB vs German constitution • Facts: ◦ On 4 March 2015, the European Central Bank (‘ECB’) adopted Decision 2015/774 on a secondary markets public sector asset purchase programme. ‣ National central banks and the ECB may purchase outright eligible marketable debt securities from eligible counterparties on the secondary markets. ‣ Adopted based on the single monetary policy in order to maintain price stability in the face of an increased downside risk to the medium-term outlook on price developments ◦ German Constitutional Court requested a preliminary ruling ‣ concerning the validity of Decision 2015/774,as amended by Decision (EU) 2017/100 of the European Central Bank of 11 January 2017 ‣ the interpretation of Article 4(2) TEU and Articles 123 and 125 TFEU. • Findings: ◦ The CJEU has the competence to interpret and apply treaties and to ensure uniformity and coherence of EU law ◦ Monetary policy (exclusive competence) vs Economic policy (coordinating competence) ◦ Ultra vires review: ‣ (Art. 23(1) GG); it must be established that the violation of competences is sufficiently qualified. • This requires that the act manifestly exceeds EU competences, resulting in a structurally significant shift in the division of competences to the detriment of the Member States. • An exceeding of competences may be regarded as ‘manifest’ even where this finding derives only from a careful and meticulously reasoned interpretation ◦ The ECB exceeds its competence --> no sufficient proportionality considerations because of insufficientent balancing of monetary objectives against economic policy effects of the PSPP ◦ Ultra vires act...