Doctrine of Supremacy

1. The Structure of the European Legal Order

Claims against the European institutions are brought directly before the ECJ. Article 263 TFEU - Judicial Review Actions Article 340(2) TFEU - Damages Actions

NB: claims relating to the validity of acts of the European institutions can also be raised before national courts and referred to the ECJ via the Article 267 TFEU preliminary reference procedure.

Claims against States and individuals are brought before national courts. Such claims may be referred to the ECJ (the reference may relate either to the validity or to the interpretation of Union law) by the national court, by means of the preliminary reference procedure - Article 267 TFEU The Commission (and other Member States) BUT NOT INDIVIDUALS have the power to bring enforcement actions against Member States directly before the ECJ - Articles 258-260 TFEU

National courts therefore have a key role afforded by the development of the doctrines of supremacy and direct effect. Together, these doctrines create a new legal order of international law. In order to be able to put the doctrines into context, one needs to be aware of the orthodox international law position, that is: the domestic effects of international Treaties are a matter for domestic constitutional law. Domestic laws adopt either a monist or a dualist approach; the UK is a dualist state as it maintains a distinct separation between norms of international and national law.

2.

Supremacy

Costa v ENEL [1964] The case concerned an Italian law which sought to nationalise the electricity industry in Italy. Costa claimed that the law contravened what is now Article 37 TFEU (then Article 31 EC), and he brought an action before an Italian magistrates court. By contrast with ordinary international Treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating 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 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 The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty and giving rise to the discrimination prohibited by Article [18]It follows from all these observations that 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 its elf being called into question.

The Doctrines of Supremacy and Direct Effect

Internationale Handelsgesellschaft [1970] The case raised the issue of a clash between a Council Regulation which provided that a deposit (payable in order to receive an export licence for maize) would be forfeit if the goods were not exported within a set period of time. The applicant company challenged the validity of the Regulation before the German courts, claiming that the deposit system was contrary to national constitutional law (freedom of action, economic liberty, proportionality, etc.) The national court referred the question of the validity of the Regulation to the ECJ. Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature 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 into question. Therefore the validity of a Community measure or its effect within a Member State 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. Simmenthal [1978] the statement of principle by the Court of Justice: It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule. The Treaty of Lisbon includes Declaration 17, providing that: in accordance with well settled case law of the Court of Justice of the European Union, 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 Declaration also confirms that the fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case law of the Court of Justice.

3.

The Reaction of the National Courts

Germany In Germany, the Constitution expressly allows for the transfer of powers to the EU. However, there are problems in relation to clashes between Union law and Constitutional norms (e.g. those relating to fundamental rights) and in relation to the definition of the limits of Union powers.

i.)

Fundamental Rights o o Internationale Case (Court of Justice) - EU law was supreme over constitutional principles such as fundamental rights Solange Case (I) (German Court) - German court said it had the final jurisdiction and they were going to uphold their fundamental rights if there was ever conflict between international and constitutional right. NB: it did uphold EU law in this case; it was just making a statement of principle that Germany would have the final say. Solange Case (2) (German court) - German courts said they retain the final jurisdiction to say whether EU law conflicts with German law, but it will not annul EU law, as long as the protection the EU law gives to fundamental rights is similar to that in the German Constitution.

The Doctrines of Supremacy and Direct Effect

ii.)

Competence o Brumer Case - case came when Germany signed the Maastricht treaty. Some Germans were saying that the EU overstepped its competence and that Germany should not have signed. Germany said it retained the jurisdiction to review EU institutions in case it went beyond the competence - it is again a yes, but approach from Germany. Honeywell Case - set conditions for when the institutions would be found incompetent. That would be if there was a highly important rule was breached.

iii.)

Constitutional Identity o Goweiler Case (Lisbon Judgment) - The case came when Germany signed the Lisbon treaty. German nationals said Germans should not have signed the treaty as it was going too far. The German court said again yes to the Lisbon treaty but that they retained the jurisdiction to review any EU acts that might breach the constitutional identity of Germany - and explained what the constitutional identity means through four characteristics.

Case law tells us that Germany accepts supremacy of EU law because the German constitution says so, but it has a strong number of exceptions so this supremacy is not unconditional. It does not accept the reasoning of the Court of Justice but arrives at the same decision through its own choice with different exceptions and limitations.

The United Kingdom In the UK, the Courts are prepared to accept the primacy of EU law; but only by virtue of the European Communities Act 1972. o o

Factortame Case No.1 - ECJ said that interim relief should be granted or EU law will not be effective Factortame Case No.2 (national courts) - Lord Bridge outlined that it was not a surprise EU law was supreme, not because the ECJ says so but because much before the UK signed up it was obvious that UK was giving up some sovereignty, and Parliament had chosen this themselves. Thoburn Case - Made clear again that the reason the UK is accepting the principles of supremacy is because of the Act of Parliament. He made a distinction between constitutional acts of the Parliament and The European Communities Act is a constitutional act See also the European Union Act of 2011, sections of which appear in your statute book (at p.638). Note in particular the so-called sovereignty clause (section 18) and the provision for wide ranging referendum locks in relation to future transfers of powers to the EU.

The UK overall view; accepted supremacy of EU law, because they said it was a voluntary choice of Parliament, and in theory domestic law could be sovereign again if they left the EU. Again like Germany they did not agree with the reasoning of the ECJ but still accepts supremacy for different reasons.

The Doctrines of Supremacy and Direct Effect

Poland Polish Constitutional Court, judgment (May 2005) The concept and model of European law created a new situation, wherein, within each member States, autonomous legal orders co-exist and are simultaneously operative. The existence of the relative autonomy of both, national and Community, legal orders in no way signifies an absence of interaction between them. Furthermore, it does not exclude the possibility of a collision between regulations of Community law and the Constitution. Such a collision may in no event be resolved by assuming the supremacy of a Community norm over a constitutional norm. Czech Republic Landtov Case declared an EU Regulation on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community Ultra Vires. The fact that a constitutional court of a Member State of the EU declared a judgment of the CJEU ultra vires is not something I would automatically condemn. I have always found presumptuous the writings that stressed the post-communist Member States courts need to learn, or which reacted to some of their judgments, which did not correspond to the CJEUs orthodoxy, with suspicions concerning the competence of the respective judges, who were said to have misunderstood what it entailed to be the EU. The way in which the CCC justified its move, however, is most insulting not only to the CJEU, whose accommodating gesture was returned by the CCC with a slap in the face, but to anybody who cares about the constitutional arrangements in the EU in general, and the Czech Republics place therein in particular. - R Zbiral

The Doctrines of Supremacy and Direct Effect

The Doctrine of Direct Effect

1. The Concept

Van Gend en Loos [1963] An importer (VGEL) brought an action against the Dutch Customs and Excise Department in the Dutch courts, claiming that the import duty it had been charged was contrary to Article 30 TFEU (ex Article 25 EC; then Article 12 EC). The ECJ held that VGEL could rely on [Article 30 TFEU[ against the Dutch Customs and Excise Department in the Dutch courts. In other words it held that [Article 30 TFEU] had direct effect. The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting States. This view is confirmed by the preamble to the Treaty, which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Mem ber States and also their citizens. The conclusion to be draw from this is that 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. Independently of the legislation of Member States , Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community. It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article [30 TFEU] must be interpreted as producing direct effects and creating individual rights which the national court must protect.

2.

The Conditions for Direct Effect

(a) Treaty Articles Case 26/62 Van Gend en Loos [1963] ECR 1, [1963] CMLR 105 The wording of Article [30 TFEU] contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects. Case 2/74 Reyners v. Belgium [1974] ECR 631, [1974] 2 CMLR 305 The wording of the relevant Article [then Article 52 EC, now (without the reference to the transitional period, Article 49 TFEU] was: Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be abolished by progressive stages in the course of the transitional period. 26. In laying down that freedom of establishment shall be attained at the end of the transitional period, Article 52 imposes an obligation to attain a precise result, the fulfilment of which had to be made easier by, but not made dependent on, the implementation of a programme of progressive measures. 27. The fact that this progression has not been adhered to leaves the obligation itself intact beyond the end of the period provided for its fulfilment

The Doctrines of Supremacy and Direct Effect

Case 43/75 Defrenne v. SABENA [1976] ECR 455, [1976] 2 CMLR 98 The wording of the relevant Article [then 119, now (in amended form) 157 TFEU] was: Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. 19. It is impossible not to recognise that the complete implementation of the aim pursued by Article 119 in certain cases involve the elaboration of criteria whose implementation necessitates the taking of appropriate measures at Community or national level. 21. Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 must be included in particular those which have their origin in legislative provisions and which may be detected on the basis of a purely legal analysis of the situation. 24. In such a situation, at least, Article 119 is directly [effective] and may thus give rise to individual rights which the courts must protect. (b) Regulations Article 288 TFEU: A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States Case 93/71 Leonesio v Italian Misinstry of Agriculture [1972] ECR 293 Case C-253/00 Antonio Munoz Cia SA v Frumar Ltd [2002] ECR I-7289 (c) Decisions Article 288 TFEU: A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Case 9/70 Grad v. Finanzamt Traunstein [1970] ECR 825 4. Vertical and Horizontal Direct Effect

The question here is about who is bound by particular provisions of Union law. The terminology is capable of being confusing. Vertical direct effect refers to the capacity to bind States; horizontal direct effect is broader, and refers to the capacity to bind individuals (as well as States). The distinction becomes crucial in relation to directives (see lectures 7 and 8). Case 43/75 Defrenne v. SABENA [1976] ECR 455, [1976] 2 CMLR 98 The case concerned an interpretation of Article 119 EEC (as was). Th at read: Each Member State shall during the first stage ensure and subsequently maintain the application of the principle that men and women should receive equal pay for equal work. Who do you think should be bound by Article 119 EEC? This is the Courts response: 39. since Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulated paid labour collectively, as well as to contracts between individuals 5. What if there was no supremacy or direct effect?

(a) Enforcement actions before the ECJ (see lectures 11 and 12) Article 258 TFEU: If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned an opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid The Doctrines of Supremacy and Direct Effect

down by the Commission, the latter may bring the matter before the Court of Justice of the European Union. Such actions are independent of the doctrine of direct effect. (b) Enforcement in national courts, BUT only after incorporation into domestic law.

The Doctrines of Supremacy and Direct Effect