Supremacy of EU Law Flashcards
National law and EU Law
They can contradict one another, therefore there needs to be harmonise mutual adjustment. CoJ also decided that EU law is supreme over all national law
Foundations
There is no written principle of supremacy, was meant to be in the Treaty of Lisbon. Must be found in CJEU judgements, and national law of the Member States.Most countries accept it as would mean EU law is meaningless if they did not accept supremacy of EU law.
Flaminio Costa v ENEL
£1 bill, claimed nationalisation of ENEL was against EU law. This is where Supremacy was introduced:
Teleological Basis - EEC became integral to legal systems of Member States when consented to. In creating EU they have created institutions with powers which means their powers have been limited. Due to intent to be bound, they can’t override it as they created it, and there must be intent for it be sovereign
Textual Basis - Art 288 TEU shall be binding to all member states. Can’t override with national law
Practical Reasons - Can’t vary between states otherwise it would be meaningless. Has to be clear and precise in the provisions
Conclusion - If could be called into question then it would make the whole of community law void. It can’t function without supremacy. Without the supremacy of the institutions the whole thing is threatened.
Interntionale Handelsgesellschaft
Supremacy in conflict with fundamental HR. Checking Community law off against national law standards would mean that it is not supreme. Germany just after WW2 they do not want of their fundamental rights infringed at all. CoJ state that even if it constitutional law then it can’t be checked off against EU law, as EU law is supreme.
Simmenthal
EU law makes any conflicting national law invalid, and the adoption of any law that conflicts is also deemed to be against EU law cannot be adopted. Italian court only allowed to say if it unconstitutional but the court itself is bound by EU law, so must set aside national law if it breaches EU law.
Was the CoJ effective?
It was effective as CoJ had long term agenda, whereas government of MS concerned with political cycle. Bothered about effectiveness, not other issues. Wieler
Most influential judgements dealt with minor matters but led to conclusions in MS. Williams
Coherence of legal system is based on harmonious mutual adjustment. Walker
Judicial Dialogue: German Contribution
Solange Principle -
Internationale Handelsgesellschaft - CoJ held no breach, German Constitutional Court held EEC as supreme unless in conflict with Constitutional law. Accept as long as no infringement on fundamental rights. Testing national law against EU law so long as it does not infringe fundamental rights
Wünsche Handelsgesellschaft - So long as European Communities ensure effectiveness of protection of fundamental rights. Both adjust to each other
Similar case in Italy (Frontini v Ministero delle Finaze)
Brunner v EU Treaty - Challenged ratification to treaty, making sure interpretation can’t extend the powers, conferral of powers is important
Gauweiler v Treaty of Lisbon - Can review if EU acted within competencies. Democracy and fundamental rights must be enshrined in EU law
French Position
Supremacy was accepted by ordinary courts readily (Directeur Général des Douanes v Vabre) But not the administration courts initially (Minister of the Interior v. Cohn-Bendit) Later they did though (Re Nicolo)
UK Position
Some EU law directly effect UK, some doesn’t so it can’t be on taxes, retrospective. Yet it can be appealed as Parliamentary Sovereignty.
If conflict between earlier UK law and EU law then easy it is the EU law that applies due both to supremacy, and parliamentary sovereignty.
Conflict with later UK law and earlier EU law then issue arise.
Factormane case - Conflict between Merchant Shipping Act and EC freedom. Gave preference to EC law. 1972 act made it clear that court must override national law in conflict with EU law
Position in Poland
Polish Constitutional Court accepted supremacy, and harmonious mutual adjustment. Polish solange in that it can’t contradict wording of the Polish constitution. Constitution is minimum threshold for fundamental rights which community law should not lower.
