The Great Doctrines to have emerged from the case law of the CJEU Flashcards
(37 cards)
The Autonomy of the European Union Legal Order (Is Community (now European Union) law a form of national law, a form of international law or neither of these - a new form of law?)
- Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963 - A new form of law
- Case 6/64 Costa v. ENEL EU:C:1964:66 – EEC Treaty has created its own legal system
What does the Autonomy of the European Union Legal Order mean?
Is Community (now European Union) law a form of national law, a form of international law or neither of these - a new form of law?
What does “Direct Effect” mean?
- Does Community (now European Union) law confer upon individuals rights which they can maintain before the national courts/rights which the national courts must enforce? (Yes)
EU law can have direct effect
Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963:1
Case 26/62 Van Gend en Loos v. Netherlands Inland Revenue Administration EU:C:1963:1
The Court:
asserted (implicitly)Kompetenz Kompetenz
( the right to name the Court and the legal system which had right to decide direct effect issue)
asserted (implicitly) Kompetenz
( i.e., it appointed itself and the EU legal system the referee of the direct effect issue)
exercised Kompetenz
( i.e., it held Community law directly effective)
- Purposive reasoning
What is the significance of Van Gend En Loos?
- Establishes [EU] law confers rights on individuals.
- Establishes EU law does not merely have states as its subjects
- Creates a new enforcement mechanism for EU law
- Ensures the uniform nature of European law
- Gives national courts a new job.
- Kept the momentum of integration going.
What does “supremacy” mean?
If a rule of Community (now European Union) law conflicts with a rule of national law, which is to prevail? (EU law)
Case 6/64 Costa v. ENEL EU:C:1964:66
- Established primacy
- Terms, spirit and treaty objectives
Case 11/70 Internationale Handelsgesellschaft EU:C:1970:114 (The International Trading Company case)
- CJEU – EU law prevails over FR guarantees in national constitution (Lowest form of EU law prevails over highest form of national law)
- Otherwise, would deprive EU of essential character and legal basis of EU;
- General Principle devised that EU law must respect fundamental rights; EU laws must respect EU fundamental rights guarantees; All EU law supersedes national law
Case 106/77 Simmenthal EU:C:1978:49
- Directly effective EU law renders automatically inapplicable any contrary national law
- Every national court, in any case within its jurisdiction, has to set aside any existing rule of domestic law that contravenes EU law
- Even against contrary provisions of national Constitutional law, EU law prevails.
Case C-10/97 IN.CO.GE.’90 EU:C:1998:498
National laws that post-date a conflicting EU rule are rendered automatically inapplicable
Case C-573/17 Criminal proceedings against Popławski EU:C:2019:530
Direct effect triggers the supremacy of EU law i.e., only directly effective EU law provisions are supreme to national law
Declaration no. 17 annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon
Treaties have primacy over the law of Member States
Weiss case
“the Basic Law does not authorise German state organs to transfer sovereign powers to the European Union in such a way that the European Union was authorised, in the independent exercise of its powers, to create new competences for itself. It prohibits conferring upon the European Union the competence to decide on its own competences.”
Limits to supremacy in the case-law of the German Federal Constitutional Court (BVG)
Fundamental rights
Ultra vires
Constitutional identity
Solange I: Internationale Handelsgesellschaft,
BVG decision of 29 May 1974
If conflict between Community law and…the guarantees of fundamental rights in the Constitution…the guarantee of fundamental rights in the Constitution prevails as long as the competent organs of the Community have not removed the conflict of norms in accordance with the Treaty mechanism.”
Solange II Re Wünsche Handelsgesellschaft
So long as EU generally ensure effective protection for fundamental rights in comparison to German constitutional guarantees, the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation cited as the legal basis for any acts of German civil courts or authorities within the sovereign jurisdiction of the Federal Republic of Germany, and it will no longer review such legislation by the standard of the fundamental rights contained in the Constitution.”
Bananas ruling BVerfG, Order of 7 June 2000 2 BvL 1/97
Limits to supremacy in the case-law of the German Federal Constitutional Court (BVG):
- Fundamental rights
- Ultra vires
- Constitutional identity
Brunner v. The European Union Treaty [1994] 1 CMLR 57 (Maastricht case)
– GFC = MS as masters of the Treaties; EU law only accepted only in so far as not ultra vires
Simmenthal (Italian case)
CJEU:
- Directly effective EU law provisions render inapplicable any conflicting provision of national law; had to apply EU law in its entirety and set aside the conflicting provision of national legislation
- Rule in Italian law about referring disapplying a statute to Italian CC; rule like that itself violated EU law, local court didn’t have to refer the CC
1. Tells us Directly effective EU law provisions render inapplicable any conflicting provision of national law
2. All courts have to set aside the conflicting provision; National provision functions as normal where no conflict
3. Even against contrary provisions of constitutional law, EU law prevails
Honeywell BVerfG 2 BvR 2661/06, 6 July 2010
Ultra vires review in manner open towards EU law and only conducted where it is manifest that EU acts have taken place outside the transferred competences”
Gauweiler BVerFG 2 BvR 2728/13
European Central Bank’s OMT programme not ultra vires EU competences (BVG followed ECJ Art 267 ruling to same effect) but little trace of the Honeywell Europe-friendly approach
PSPP/Weiss 2 BvR 859/15
A bombshell ruling by German Federal Constitutional Court (BVG)
European Central Bank Public Sector Asset Purchase Programme (PSPP) (‘quantitative easing’/‘helicopter money’) held ultra vires ECB competences
AND
Art 267 TFEU ruling of ECJ holding PSPP was not ultra vires ECB competences was defied by the BVG, and itself held to have been ultra vires ECJ competences!
The Lisbon case – BVerfG 2 BvE 2/08 30 June 2009
Constitutional Identity exception
