EU Supremacy - Quick exam revision notes on PDF

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SUPREMACY OF EU LAWPrinciple – where EU law and national laws come into conflict, EU law should always prevail.Therefore, EU supremacy requires member states to amend or repeal any provisions/national legislation which conflict with EU law  Declaration 17 of the Lisbon Treaty : “[I]n accordance wit...

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SUPREMACY OF EU LAW Principle – where EU law and national laws come into conflict, EU law should always prevail. Therefore, EU supremacy requires member states to amend or repeal any provisions/national legislation which conflict with EU law  Declaration 17 of the Lisbon Treaty: “[I]n 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 have primacy over the law of Member States, under the conditions laid down by the said case law.” Key Cases 

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COSTA V ENEL (1964) - The issue was whether a national legislation adopted after 1957 could prevail over the EEC Treaty. HELD: The CJEU held that the member states knew that they were transferring some of their sovereign powers to the Union when signing the treaty. Also, they found that Union law could not function as a multilateral legal system if member states could unilaterally override it therefore Union must be supreme. This case established the supremacy of Union law over national laws. SIMMENTHAL SPA (1978) – The issue was whether the Italian law of 1970 could prevail even though it conflicted with the European Community Regulations from 1964 & 1968. The court were asked what are the legal consequences of the supremacy of EU law over conflicting national law? HELD: The CJEU held that conflicting national laws should be set aside as the supremacy of EU law renders them ‘inapplicable’ regardless of whether the national law was adopted later INTERNATIONALE HANDELSGESELLSCHAF (SOLANGE I) (1970) – the issue concerned a challenge to the validity of the Union’s rules if it has violated fundamental rights granted by the German Constitution. HELD: the CJEU ruled that the validity of EU measures cannot be challenged on grounds of national law rules or concepts, even if that is a violation of fundamental human rights provisions in a member state’s constitution. EC law did, however, respect the fundamental rights in member state systems. But here there was no violation. o After the CJEU ruling, the German Federal Constitutional Court did not fully accept this decision & ruled in a judgment in 1974 that if a case should arise where there is conflict between Union law and a fundamental right guaranteed by the German Constitution, the constitutional rights would prevail WUNCHE HANDELSGESELLSCHAFT (SOLANGE II) 1986 - The German Federal Constitutional Court held that it would not give close scrutiny now. Since the 1974 decision, it considered the ECJ’s development of protection for fundamental rights, the adoption of declaration on rights and democracy by the Community institutions, and that all EC Member States had acceded to the European Convention on Human Rights, ensured an effective protection of fundamental rights as against the sovereign powers of the Communities

The United Kingdom  

The European Communities Act 1972 – incorporated EU law into UK domestic law The European Union (Withdrawal) Act 2018 – repealed the European Communities Act from UK law on 31 January 2020

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FACTORTAME II (1995): the issue was whether EU law was supreme over national UK law bearing in mind the doctrine of Parliamentary sovereignty. HELD: the CJEU reminded the HOL that EU law must prevail. Moreover, wherever there is a conflict between national and EU law they must ignore the national law in favour of EU law. The House of Lords issued the injunction by disapplying the relevant parts of the Merchant Shipping Act 1998 so that claimants could exercise their conflicting rights under the treaty. Also, Lord Bridge raised that that the UK joined the union, such that ‘whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary’ R (MILLER) V SECRETARY OF STATE FOR EXITING THE EU (2019) – the UK Supreme Court held that the ECA 1972 has elevated constitutional statute and is immune to

SUPREMACY OF EU LAW implied repeal. If Parliament wishes to repeal a constitutional statute it must do so explicitly.

INTERNATIONAL TREATIES - Article 351 of the TFEU: “The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties.” Treaties which pre-date the EU treaties will not be affected. This is thus a restriction to the EU’s supremacy...