7. Supremacy and Direct Effect Flashcards
What are the two backbone principles of the EU legal system that underpin its autonomy and integration?
The two backbone principles of the EU legal system are supremacy and direct effect.
Why are direct effect and primacy considered necessary from a practical perspective within the context of cooperative federalism in the EU?
Direct effect and primacy are necessary to solve conflicts between EU and national law in a system of cooperative federalism.
Are the principles of direct effect and primacy explicitly stated in the EU Treaties?
No, direct effect and primacy are not in the Treaties but developed by case law.
How does the principle of primacy of EU law differ from the principle of pacta sunt servanda in public international law (PIL)?
The primacy of EU law goes beyond pacta sunt servanda in PIL because EU law establishes its own relationship with national law (autonomy), whereas in classic international law, Member States (MS) decide how to resolve conflicts.
What was the key ruling in the Costa v ENEL case (6/64) regarding the supremacy of EU law?
In Costa v ENEL, the Court of Justice of the European Union (CJEU) enshrined the ‘meta-principle’ of autonomy, stating that EU law has the competence to resolve conflicts with national law, even if the national law is later in time (lex posterior).
What are the main arguments put forth to support the principle of supremacy of EU law?
The main arguments for supremacy include: Effectiveness, Unconditionality and irrevocability of MS obligations, Direct applicability of EU law within national legal orders, Permanence of transfer of competences limiting national sovereignty, Equality of MS before Treaties (Art. 4(2) TEU).
What are the two sides to the principle of primacy?
The two sides to the principle of primacy are supremacy (abstract prevalence) and pre-emption (obligation to disapply conflicting national provisions).
Explain the concept of ‘abstract prevalence’ in the context of EU law supremacy.
Abstract prevalence means the prevalence of EU law over national law regardless of whether the EU law provision has direct effect. It is not a matter of hierarchy, as EU law is autonomous.
What is ‘pre-emption’ in the context of EU law?
Pre-emption is the obligation of national authorities to give full effect to EU law by disapplying conflicting national provisions. This obligation was established in the Simmenthal case (106/77).
Under what conditions are national authorities empowered to directly disapply national provisions contrary to EU law (pre-emption)?
National authorities can disapply conflicting national provisions if: The national legislation cannot be interpreted in compliance with the requirements of EU law, The EU law provision has direct effect.
Does the supremacy of EU law extend to national constitutions?
Yes, the supremacy of EU law extends over all national rules, including constitutions, as established in cases like Internationale Handelsgesellschaft (11/70).
What is the role of national courts in ensuring the pre-emption of conflicting national law?
National courts have a decentralised system of EU law judicial review. They are obligated to disapply national provisions that conflict with directly effective EU law; they do not need to wait for a constitutional court to rule on the national provision’s validity.
Does pre-emption require national authorities to annul conflicting national provisions?
No, pre-emption does not entail annulment by national authorities. It involves disapplying the national provision in the specific case.
What is the principle of direct effect in EU law?
Direct effect means that certain provisions of EU law can create rights and obligations directly for individuals, which they can then invoke before national courts.
What were the key arguments put forth by the CJEU in Van Gend en Loos (26-62) to establish the principle of direct effect?
The CJEU’s arguments in Van Gend en Loos were: Legal-political, Citizenship, Judicial.
What are the conditions that an EU law provision must generally meet to have direct effect?
An EU law provision must be: Sufficiently clear and precise, Unconditional.
What is the difference between direct applicability and direct effect?
Direct applicability refers to EU law automatically becoming part of national law, while direct effect concerns whether individuals can directly invoke rights and obligations derived from an EU law provision before national courts.
What is ‘vertical direct effect’?
Vertical direct effect means that individuals can invoke sufficiently clear, precise, and unconditional provisions of EU law against the state.
What is ‘horizontal direct effect’?
Horizontal direct effect means that individuals can invoke sufficiently clear, precise, and unconditional provisions of EU law against other individuals or private entities.
What is ‘quasi-horizontal direct effect’?
Quasi-horizontal direct effect is a concept used in the context of fundamental freedoms in the internal market where rules apply to both state action and bodies regulating these freedoms.
How is EU law applied within the Member States on an institutional level?
On an institutional level, EU law is applied in MS by national institutions (executive, judicial, and legislative).
How is EU law enforced on a procedural level within the Member States?
On a procedural level, EU law is enforced according to existing national rules of procedure, limited by the principles of effectiveness and equivalence.
What is the duty of consistent interpretation (or indirect effect)?
The duty of consistent interpretation requires national authorities to interpret all national rules in conformity with all provisions of EU law from the date of its adoption.
What are the limits to the obligation of consistent interpretation?
The limit to consistent interpretation is the impossibility of interpreting national law contra legem.
What is ‘invocability of exclusion’ of national law in the context of EU law?
Invocability of exclusion arises when a national rule cannot be interpreted in conformity with EU law without running contra legem.
What is ‘invocability of substitution’ of EU law?
Invocability of substitution can occur when there is no national rule implementing EU law, particularly directives.
Under what conditions can a Member State be held liable for breaches of EU law?
A Member State can be liable for breaches of EU law if: The EU law breached is intended to confer rights on individuals, The breach is sufficiently serious, There is a direct causal link between the breach and the damage sustained.
What is the general rule regarding the direct effect of Treaty provisions (primary law)?
Every provision of primary law may have direct effect if it is sufficiently precise and unconditional.
What is the general rule regarding the direct effect of Regulations?
There is a presumption of direct effect for Regulations, as they are directly applicable.
What is the general rule regarding the direct effect of Directives?
The general rule is that Directives do not have direct effect as they are addressed to Member States.
What are the exceptions to the general rule of no direct effect for Directives?
A Directive provision may have direct effect if: The Member State has failed to comply with the directive, The provision is sufficiently precise and unconditional, The implementation deadline has expired.
How does the direct effect of Decisions differ depending on their addressee?
Decisions can have direct effect depending on who they are addressed to: There is a presumption of direct effect for addressees.
What is the general rule regarding the direct effect of international agreements concluded by the EU?
The EU generally adheres to monism, so international agreements are generally considered directly applicable.
What is the exception regarding the direct effect of WTO and GATT rules?
Due to the flexibility and reciprocity of WTO and GATT rules, they generally do not have direct effect.
Briefly describe the German Constitutional Court’s (CC) approach to the supremacy of EU law.
The German CC accepts the supremacy of EU law as long as EU law and CJEU case law guarantee a level of fundamental rights protection equivalent to that provided by the German Basic Law.
Briefly describe the French Constitutional Council’s approach to the supremacy of EU law.
The French Constitutional Council bases primacy on a constitutional ‘European clause’. Incompatibilities between EU primary law and the French Constitution require a constitutional amendment.
Briefly describe the Italian Constitutional Court’s (CC) approach to the supremacy of EU law.
The Italian CC acknowledges limitations on national sovereignty in favour of the EU based on the Italian Constitution but retains the power to review EU measures if they affect fundamental rights.
