Chapter 6 Flashcards
What is the difference between pre-emption and primacy?
- Pre-emption: whether a conflict exists of EU law with national law
- Primacy: the resolution of the conflict of EU law with national law
What does ‘absolute primacy’ mean?
It means that all European law must prevail over national law
What about the Costa v Enel case?
Italy stated that legislation subsequent to 1958 (Rome Treaties) could prevail over the RT, claiming that MS could decide on their own the status of Union law in their legal orders.
The ECJ rejected this view saying that Union law has a special nature and couldn’t be overridden by subsequent national law
In which case the ECJ clarified the absolute primacy of EU law?
In the Handelsgesellshcaft case, saying that even in conflict with basic principles of MS’s constitutions, including human rights, EU law is going to prevail
What does Art.351 TFEU say?
It states that international agreements concluded before 01/01/1958 (EEC creation) shouldn’t be affected by EU law.
EU law maintains its primacy over prior agreements which violate the Union’s constitutional identity
What did the Court say in the Simmental case?
National courts of MS should give immediate effect to Union norms, even if the NL was still in the process of being repealed and still in force
What is the relationship between Union law and national law?
Union law makes all existing conflicting national norms inapplicable
Which are the three contexts in which relative primacy has been expressed?
1) Claims that EU law couldn’t violate national fundamental rights
2) Claims that the Eu shouldn’t be able to define the fields in which it has primacy, as it would constitute ultra vires control (beyond legal power)
3) Claims that there are absolute limits posed to European integration which coincide with each nation’s constitutional identity
What is the so-long jurisprudence?
In the Internationale Handelsgesellschaft and Wunsche Handelsgesellschaft, the German court expressed a strong national view on the primacy question, claiming relative primacy of the EU.
They wanted the guarantee of fundamental rights so long as the EU wouldn’t adopt similar rights to the ones guaranteed by Germany
Which right Germany wanted?
They confirmed their relative primacy doctrine by claiming the right to misapply European law that was considered not to be covered by the text of the Treaties.
What is pre-emption?
It denoted the degree to which a national law will BE SET ASIDE by Union law in case of conflict between the two.
Which are the three categories of pre-emption?Explain them
1) Field pre-emption: MS are excluded from passing national legislation because the Union already exhaustively legislated for the field
2) Obstacle pre-emption: when there is a an interference between Union law and national law
3) Rule pre-emption: when a national legislation literally contradicts a specific Union rule and complying with both, would be impossible
