Professional Documents
Culture Documents
Key questions
• How does the European Court of Justice conceive the relationship between
national law and Community/EU law?
Two possible visions of the relationship between EC law and national laws:
• ‘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)
• 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”
• The ECJ vision of the relationship was laid down in 5 major decisions:
(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)
• 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”
• 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.
(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’
• 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
• ECJ said there was an obligation to create remedies where they previously
may not have existed in the national legal system
Issues to consider
• It shouldn’t but is the ECJ saying there are all these supreme courts
and I sit on top of them
• 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