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Supremacy of EU law: The EU vision

Key questions

• How does the European Court of Justice conceive the relationship between
national law and Community/EU law?

• What is meant by supremacy of EU law? Why is it important for EU law to


take primacy over national law?

Two possible visions of the relationship between EC law and national laws:

The Member States’ vision (in 1957)

• EU law is law created by an international organisation, set up by an


international treaty, and governed by international law

• ‘The States, like Olympian gods, would forever remain ultimate Masters of
their creation’ (J. Weiler and U. Haltern (1996) (and probably was what
they hoped in 1957 before the ECJ stepped in)

The ECJ vision (cont.)

• supremacy or primacy denotes the capacity of a norm of EU law to


overrule inconsistent norms of national law

• It is a rule on conflicts between EU and national laws (i.e. different


from ‘direct effect’ which is about the effects of EU law).

• Case 44/79 Hauer: to allow national law to take priority over European
Community law would “lead inevitably to the destruction of the unity of
the common market and the jeopardizing of the cohesion of the
Community”

• Court made clear it was a make or break principle for the EC

• The ECJ vision of the relationship was laid down in 5 major decisions:

• (i) Case 26/62, van Gend en Loos

• (ii) case 6/64, Costa v ENEL

• (iii) Case 11/70 Internationale Handelgesellschaft

• (iv) Case 106/77 Simmenthal

• (v) C-213/89, ex parte Factortame

(i) Van Gend and the EC as a ‘new legal order’ (mentioned in the first part of the
Lecture)

• It’s really about direct effect but without it, it’s have been hard for the ECJ
to come up with the first decision on primacy of EU/EC law
• Question asked to ECJ: Can ‘nationals of … a [Member] State …, on the
basis of the Article in question, lay claim to individual rights which the
courts must protect’? (direct effect)

• Answer: “… the Community constitutes a new legal order of international


law for the benefit 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” … EC Treaty “creates individual
rights which national courts must protect”

(ii) Costa and su-primacy (or precedence) of EC law

• Courts said when there is a conflict between national and community law,
even when the national law was made after the community law,
community law shall prevail

• “By contrast with ordinary international treaties, the EEC Treaty has
created its own legal system which ... became an integral part of the legal
systems of the Member States and which their courts are bound to apply”.

• “The integration into the laws of each Member State of [EC law] provisions
make it impossible for the States (…) to accord precedence to a unilateral
and subsequent measure over a legal system accepted by them on a basis
of reciprocity”

• ‘the Treaty carries with it a permanent limitation of their sovereign rights’.

(iii) Internationale Handelgesellschaft and supremacy of EC law over any national


law

• Saying that EU law should take precedence of ordinary nat law is one thing
but saying it should take precedence over any national law including
constitutional provisions that protect fundamental rights is a further step
but that’s what the courts said here.

• Clash between EC law and national fundamental laws and principles?

• ‘... the validity of a Community instrument or its effect within a Member


State cannot be affected by allegations that it strikes at either the
fundamental rights as formulated by the State’s constitution or the
principles of a national constitutional structure’

(iv) Simmenthal and the forum responsible for setting aside conflicting national
law

• Who is going to decide how and when to set aside national law? Here, they
said that any national court (even a tribunal judge for instance) will have
to take this decision whenever they encounter a clash.

• Question: which national court should set aside incompatible (with EC law)
national laws?
• ‘…a national court which is called upon… to apply provisions of
Community law is under a duty to give full effect to those provisions, if
necessary refusing … 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’

• ‘Two-parent theory’ (& ECJ-national courts Axis)

• Idea that EU law supremacy has very much worked because lower
level judges are very pleased with this decision as it’s very
empowering for them (set aside/quash national law – a poer
previously only given to supreme/constitutional courts) so for this
reason hey were keen to send cases to the ECJ which made a
success for the whole thing despite supreme courts feeling it was a
power they only had and now everyone had

(v) Factortame and interim relief

• ECJ said there was an obligation to create remedies where they previously
may not have existed in the national legal system

• ‘… the full effectiveness of Community law would be just as much


impaired if a rule of national law could prevent a court seised of a dispute
governed by Community law from granting interim relief …. It follows that
a court which in those circumstances would grant interim relief, if it were
not for a rule of national law, is obliged to set aside that rule’.

• Raises questions of procedural autonomy?

• Not just a challenge of national sovereignty but a challenge to it in a


specifically way

Issues to consider

• EC Treaty as a ‘quasi-constitutional’ document?

• Sits above national constitutions and national legal systems

• ECJ as an ‘incipient constitutional court’?

• It shouldn’t but is the ECJ saying there are all these supreme courts
and I sit on top of them

• ECJ-national courts relationship?

• Very tense relationships between the ECJ and the Supreme courts
who were losing power but think about the relationship between
junior courts and the ECJ. 2 parent theory. Junior court didn’t have
to rely just on its domestic parent. It could ask the same question to
the other parent hoping for a different answer
• Different attitudes between higher and lower national courts

• Next week: the reactions from national systems and national Supreme
Courts

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