The Supremacy of EU Law

THE SUPREMACY/PRIMACY OF EU LAW

Where there is conflict between European law and the law of Member States, European law takes precedence over

conflicting national law.

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.

Reasons Why

Ensuring that Community law is applied uniformly in all Member States.

Preserving the integrity of the European legal order.

Acting unilaterally in breach of their obligations could lead to the crash of the Union.

ECJ Development

Van Gend en Loos

Ruling in the case of Van Gend en Loos that deals with seemingly trivial issue of customs clearance of urea-formaldehyde, ECJ is aware of the objectives of economic integration and asks a question what would happen if every Member State could depart from the obligations assumed by contract. On one hand, the ECJ wants to emphasize the seriousness of the commitments, on the other hand wants to prevent negative economic, and legal consequences that might occur.

The Community constitutes a new legal order of international law for the benefits of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.

The law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.

The transfer by the states from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail.

Treaty created its own legal order which became an ‘integral part’ of the legal systems of the Member States

Treaty implied a permanent limitation of national sovereignty

Treaty requires unity and integration of the provisions of Community law into national law and Member States could not accord primacy to national laws.

Aims set out in the Treaty would be jeopardised if Member States were to act unilaterally and were to refuse to give effect to a Community law, which should uniformly and equally bind all.

The German Federal Constitutional Court’s Lisbon Case

German Federal Constitutional Court was suppose to verify the compatibility of the Treaty of Lisbon with the German Basic Law (Grundgesetz) as a general matter. The second and third matters before the Court concerned two German laws enacted to accompany the Treaty of Lisbon: the Act Amending the Basic Law and the Act Extending and Strengthening the Rights of the German Federal Parliament (Bundestag) and the German Federal Council of States (Bundesrat) in European Union Matters.

In its judgment the Court addresses three questions: (1) Does the level of legitimization of the European Union comply with constitutional requirements?; (2) Does the Treaty of Lisbon abandon state sovereignty of the Federal Republic of Germany?; and (3) does the Bundestag retain sufficiently weighty responsibilities and competences of its own?

What did the GCC say?

The Federal Constitutional Court ruled that the Lisbon Treaty is fundamentally compatible with the German Constitution – the Grundgesetz or Basic Law.

But...

The German Court is making clear that EU law can only be agreed to and operated by Germany to the extent that it is compatible with the Grundgesetz, and that it will be the judge of compatibility.

Some reactions and opinions ...

This is a simple issue of legal obligations, thus it has nothing to do with sovereignty of the Member States.

Countries themselves make a sovereign decision whether to access the Union or not. Once they decide to accede they should accept legal obligations and implications of that decision.

Spain stuck to the rules until the financial crisis in 2008. Also, out of the other countries Spain's government had the smallest debt relative to the size of its economy.

Good news for Germany...

Greece didn't stick to the 3% rule but they covered their borrowing statistics

France followed Germany and Italy

But the market had other ideas

All that debt helped finance more and more imports by Spain and Italy. Meanwhile, Germany became an export power-house, selling far more to the rest of the world (including southern Europeans) than it was buying as imports. That meant Germany was earning a lot of surplus cash

Conclusion

ECJ instrumental in establishing the principle and developing it.

Distinction between supremacy and primacy debate.

No agreement that supremacy of EU law is

unconditional (three core positions: pro-position, contra-position, in between) - Legal scholarship has an important role in shaping the principle of primacy.

Conceptual distinction between supremacy and primacy

Supremacy - national constitution as the supreme law of the land within a hierarchy of norms, whereas primacy simply describes the fact that European law takes precedence over national law, without the necessary implication of a hierarchy between European law and national law.

(Spanish Tribunal Constitucional)

Italy regularly broke the 3% annual borrowing rule

Germany, along with Italy, was the first big country to break that rule

ECJ might have overstepped its competencies by establishing such an absolute concept of primacy.

The ECJ's role is to interpret European law, but the question of supremacy of Community law over Member States’ legal orders is not a question of simple interpretation.

violation to EU rules

European Union

Slow actions from European officials

Costa vs. Enel

A decline of 1.8% in European Union output

The Court has further upgraded the doctrine by its judgment in Costa v. ENEL, establishing the right of priority or supremacy of EU law over national law, even in relation to the later adopted national regulations in any form.

ECB lowered interest rate and provided loans of more than 1 trillion Euro to maintain money flow between European banks

It was difficult for some countries to repay their government debt without the assistance of a third party such as European Central Bank or International Monetary Fund

Political conflicts

A group of 10 European banks asked for a bailout.

Lisbon Treaty

• The principle of supremacy is one of the foundations of the legal order of the European Union, and was originally formulated in the practice of the European Court of Justice, in particular in the Van Gend en Loos (26/62), Costa v. ENEL (6/64), and Simmenthal 2 (106/77 ). These judgments from the 60s and 70s, form the core of the European legal system.
• EU constitutes a new legal order of international law for whose benefit States have limited their sovereign rights and that creates subjective rights for states and citizens.

• The Treaty of Lisbon did include a declaration on primacy attached at the end
• 17. DECLARATION CONCERNING PRIMACY
• – moved from Art. I-6 in the rejected EU Constitution

In 2011, interest increased because of fear of inflation in Germany. At the same time the southern countries, such as Greece, Italy, and Portugal were heading to recession

Since the start of the Euro, some countries have experienced rising costs which has made exports uncompetitive. Usually their currency would devalue to restore competitiveness, but this can't happen with the euro. This has led to to current account deficits, fall in exports and low growth