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Doctrine of Supremacy in EU law

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stephen carruthers

on 18 November 2016

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Transcript of Doctrine of Supremacy in EU law

or from zero to infinity
The rocky road to supremacy
Costa v ENEL
the solange I and II saga

national reactions to supremacy
constitution
Has no formal basis in the Treaties pre- Lisbon
Related to direct effect: enforcement EU law
Related to duty of cooperation

Means:
National courts cannot question validity of EU law
National judge under duty to co-operate, to disapply conflicting national law in favour of EU law
Doctrine of Primacy/ Supremacy
Italian lawyer who refused to pay his electricity bill, objected to nationalisation Italian Company
Application of provisions of EC Treaty to national law
ECJ held EC system different to International law
EC treaty has created its own legal system ... became an integral part of the legal systems of the member states and which their courts are bound to apply
Case 6/64 Costa v ENEL [1965] ECR 505
'A community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community
the member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves .'
EU defined
EU law enjoyed precedence because:
“Executive force of community law cannot vary from one state to another ... without jeopardizing the attainment of the objectives of the treaty ... “
Article 288 TFEU would be meaningless otherwise
“New Legal Order”
Powers transferred to EU by States
Spirit and aim of Treaties
Article 288 TFEU : Textual argument
'A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.'
Supremacy: Summary
the development of supremacy post-costa
CJEU held national court had duty to disapply conflicting national laws where conflicted with Community law

a national court ... 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 provision by legislative or other constitutional means.
Case 106/77 Amministrazione del Finanze dello Stato v Simmenthal [1978] ECR 629
Simmenthal did not entail that national law rule was non-existent
National court obliged to dissapply conflicting national law
C-10/97 to C-22/97 Ministero delle Finanze v IN.CO.GE.'90 Srl [1998] ECR I-6307
Internationale Handelsgesellschaft (1970)

‘The validity of a community measure or its effect within a MS cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure.’
Case C-234/04 Kapferer ***
Principle of cooperation/ primacy did not require national court to disapply internal rules of procedures to review and set aside a judicial decision if the decision was contrary to EU law
doctrine of res judicata
Case C-555/07 Kücükdeveci (Decision of Grand Chamber 19 January 2010)
Principle of German Constitutional Court jurisprudence that a national court could not disapply conflicting national law in the absence of a preliminary reference
CJEU-'The possibility thus given to the national court by the second paragraph of Article 267 TFEU of asking the Court for a preliminary ruling before disapplying the national provision that is contrary to European Union law cannot, however, be transformed into an obligation because national law does not allow that court to disapply a provision it considers to be contrary to the constitution unless the provision has first been declared unconstitutional by the Constitutional Court. By reason of the principle of the primacy of European Union law, which extends also to the principle of non-discrimination on grounds of age, contrary national legislation which falls within the scope of European Union law must be disapplied. '
Applicant argued Community regulation under which deposit forfeited if goods were not exported within period of time set was contrary to national constitutional law

ECJ held validity of measure could only be construed in light of EC law
Could not argue community measure conflicted with domestic constitution
Internationale Handelsgesellschaft [1970] ECR 1125: Solange I
germany
CJEU: ‘law stemming from the treaty, an independent source of law, cannot ... be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question.’
BverfG Solange I Reponse
EU undemocratic
Lacked democratically elected parliament
Lacked code of rights
German constitutional protections prevailed in hypothetical case of conflict EC and German fundamental rights law
Refused to recognise unconditional supremacy EU law
solange 1
solange II
BverfG (German Federal Constitutional Court), Wunsche Handelsgesellschaft [1987] 3 CMLR 225: Solange II
BverfG considered changes in EC law since 1974, development of fundamental rights protections by ECJ
Held so long as EC can ensure effective protection fundamental rights similar to German Constitution,
Fed Con Court would no longer review measures by standard of German constitutional law
maastricht decision
BverfG asked to rule on Maastricht Treaty and constitutionality
Warned EC German acceptance of supremacy was conditional
Competence limitations EC emphasised...
BverfG, Maastricht Decision (Brunner v TEU) 12 October 1993 [1994] 1 CMLR 57
30 June, 2009 Judgment of the German Federal Constitutional Court on the Treaty of Lisbon, B VerGE 2 Bv E 2/08: see http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2009/bvg09-072.html



Court annulled the Treaty of Lisbon legislation
Obliged the Federal President not to ratify the Treaty of Lisbon before the powers of Parliament were specified.
Act did not provide the two Chambers Parliament with necessary and sufficient degree of participation rights

“Within the present state of integration the EU does even upon entry into force of the Treaty of Lisbon not yet attain a shape that corresponds to the level of legitimisation of a democracy constituted as a state. It is not a federal state but remains an association of sovereign states to which the principle of conferral applies...”
treaty of lisbon

European communities act 1972
parliamentary sovereignty
factortame case (1991)

http://elsareview.org/the-westminster-model-%E2%80%93-supremacy-in-reality/

European Union Act 2011
Status of EU law dependent on continuing statutory basis. 'Directly applicable or directly effective EU law (that is, the rights, powers, liabilities, obligations, restrictions, remedies and procedures referred to in section 2(1) of the European Communities Act 1972) falls to be recognised and available in law in the United Kingdom only by virtue of that Act or where it is required to be recognised and available in law by virtue of any other Act.'

The Great Repeal Bill

https://www.theguardian.com/politics/2016/oct/02/theresa-may-great-repeal-bill-eu-british-law

http://www.ibtimes.co.uk/brexit-means-brexit-what-theresa-mays-great-repeal-bill-1584375

bail-out package
7 September 2011 …unsuccessful challenge to bail-out package
Group of economists argued in Germany that emergency aid to Greece and euro-zone rescue fund breached Maastricht’s no bail-out clause
Constitutional Court refused injunction last May
New permanent rescue fund mooted last week, some limited Treaty changes
Judgment of Constitutional Court of 7/9/11
No violation of the Bundestag’s budget autonomy
http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2011/bvg11-055.html

http://www.legislation.gov.uk/ukpga/2011/12/contents/enacted/data.htm
Irish law and supremacy
Not in Treaty, now in Declaration
Legal Opinion Council appended
Supremacy- Treaty of Lisbon
29.4.6 (after Lisbon):
6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by— (i) the said European Union or the European Atomic Energy Community, or institutions thereof, (ii) the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or institutions thereof, or (iii) bodies competent under the treaties referred to in this section, from having the force of law in the State.
united kingdom
The Conference recalls that, in accordance with well settled case law of the EU Court of Justice, 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 Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260)
Phelan
http://www.tcd.ie/iiis/documents/discussion/pdfs/iiisdp237.pdf

European Communities Act 1972 and Article 29.4.6° means Irish (constitutional) law obligation to apply EU treaty obligations in place of contrary Irish law
Irish courts do not recognise a direct Union law obligation to apply Union law in place of contrary Irish law.
“(1) The following shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in the treaties governing the European Union:
(a) the treaties governing the European Union;
(b) acts adopted by the institutions of the European Union (other than acts to which the first paragraph of Article 275 of the Treaty on the Functioning of the European Union applies);
(c) acts adopted by the institutions of the European Communities in force immediately before the entry into force of the Lisbon Treaty; and
(d) acts adopted by bodies competent under those treaties (other than acts to which the first paragraph of the said Article 275 applies).”
European Communities Act, 1972 s. 2, amended by s 3 European Union Act 2009
C-159/90 SPUC v. Grogan [1989] IR 753; [1991] ECR I-4685; C-286/85 Cotter Minister for Social Welfare
http://www.asylumlawdatabase.eu/sites/www.asylumlawdatabase.eu/files/aldfiles/McDermott%20and%20Cotter%20%28Case-286-85%29.pdf
C-157/86 Murphy v. An Bord Telecom [1989] ILRM 63
Case C-268/06 Imapact v Minister for Agriculture
Minister for Justice, Equality & Law Reform & Commissioner of An Garda Siochana v Director of Equality Tribunal [2009] IEHC 72
An Taoiseach v. Commission for Environment, Information [201o] IEHC 241
Irish decisions on primacy
Art 4(3) TEU
'Pursuant to the principle of sincere co-operation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.'
Honeywell Judgment
2010 Constitutional Court ruling on CJEU Mangold judgment and ultra vires
rejected claim
http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2010/bvg10-069.html
the 3 types of review - Payandeh
constitutional identity
human rights
ultra vires
Article 4(2) TEU
The Union shall respect the equality of Member States before the Treaties as well as their
national identities, inherent in their fundamental structures, political and constitutional, inclusive of
regional and local self-government. It shall respect their essential State functions, including ensuring
the territorial integrity of the State, maintaining law and order and safeguarding national security. In
particular, national security remains the sole responsibility of each Member State.

ECB bond buying programme
http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2014/bvg14-009.html

http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-034.html

http://www.telegraph.co.uk/business/2016/06/21/german-court-capitulates-to-imperial-ecj-in-landmark-ruling/
https://acelg.blogactiv.eu/2015/10/26/c-6214-gauweiler-how-the-ecj-avoided-stockholm-syndrome-but-risks-either-a-standoff-or-a-stalemate/


https://publiclawforeveryone.com/2016/02/21/1000-words-if-european-union-law-is-supreme-can-parliament-be-sovereign/
R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3
https://www.theguardian.com/news/datablog/video/2012/jan/12/high-speed-2-hs2-rail-britain-mapped-animation
Czech republic
http://europeanlawblog.eu/?p=252
Case C-399/09 Landtová
https://prezi.com/3bqpczm0i3zb/edit/#19_14586512
led to
Poland
http://www.unizar.es/euroconstitucion/library/documents/Polish%20Constitutional%20Tribunal_Judgment%20Polands%20accession%20to%20the%20EU.pdf
Melki and Abdeli Case C-188/10
http://www.civitas.org.uk/content/files/NationalConstitutionalCourtsandtheEU.pdf
http://ec.europa.eu/dgs/legal_service/arrets/10c188_en.pdf

France
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