Conflicts and General Principles Flashcards
Van Gend en Loos
“the community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields.” – Article 30 was given supremacy over the Dutch duty
Costa v ENEL
EU membership entailed “a permanent limitation of sovereign rights, against which a subsequent unilateral act, incompatible with the [aims of the EU] cannot prevail.”
Internationale Handelsgesellschaft [1970]
ECJ declared that EU law, whatever its nature, prevails over any conflicting provisions of a Bill of Rights in Member States’ constitutions
Werner Mangold & Kucukdeveci
national courts had to set aside any provision of national law which breached the general principle of equality. In the Mangold case, what was interesting was that the time limit to implement the directive had not yet expired. However, the ECJ still ruled that in the meantime, the general principle of equality still had to be enforced
Simmenthal
conflict between a Treaty provision (Article 34 TFEU) and an Italian statute passed subsequent to the Italian Ratification Act Law. Following Costa the Italian Constitutional Court stated that it would be willing to declare invalid any national law conflicting with EU law.
The issue for the Italian lower court was whether it should refuse to apply national legislation already held by the ECJ to be incompatible with EU law, or whether it should wait until the ICC had declared it invalid or the national legislature repealed or amended. Under Italian law, the lower court had to wait for the Constitutional Court or national legislature to act. ECJ had no doubts on this point: “it is not necessary for the court to request or await the prior setting aside of the provision by legislative or other means”
Factortame (No.4)
state liability (3 requirements for state liability: confer rights on individual, sufficiently serious breach and causal link between breach of EU law and loss suffered by individual)
Factortame (No. 2)
Supremacy of EU law – ECJ ruled that the national court (in this case the House of Lords) would have to recognize the supremacy of EU Law in respect of both points. The fact that English law did not allow a court to grant an injunction against the Crown could not be allowed to stand in the way of the supremacy of EU law.
s.2(4) European Communities Act 1972
enables UK courts to give priority to EU law as the ECJ requires
Remedies
No “EU remedies” for breach of EU law. National courts use nearest equivalent national remedy.
BUT – must adhere to the principles of ‘equivalence’ and ‘effectiveness’
a) the remedy must not discriminate between a breach of national law and a breach of EU law
b) national law remedies must be effective to protect EU rights (ie national courts must provide an adequate remedy)
Marshall v Southampton and SW Hampshire AHA (No. 2)
Following ECJ’s ruling on direct effect, case was sent back to the national courts for determination; the courts decided that Ms Marshall had suffered unlawful sex discrimination. Her losses assessed at £18,405 (inc interest). However, English law placed a limit on the amount of compensation of £6250 and not sure if could pay interest. Ms Marshall challenged and case went back to the ECJ – succeeded in:
a) striking out the national statutory ceiling for sex discrimination claims;
b) establishing that she was entitle to claim interest
Stauder v City of Ulm [1969]
tentative start to showing commitment to protecting fundamental rights. ECJ said that Commission decision had not infringed general principles of Union law: “the provision at issue contains nothing capable of prejudicing the fundamental human rights…protected by the Court”
J Nold KG v Commission [1974]
ECJ said there were two main sources of inspiration for fundamental rights:
a) the common constitutional traditions of Member States, and
b) international treaties for protecting human rights in which Member States had participated
R v Kirk
Any provision of the ECHR can be invoked before the ECJ, provided it is done in the context of a matter of EU law. The ECJ will apply and respect the convention provision. Kirk was the captain of a Danish fishing vessels. He was arrested for fishing illegally in British waters. The derogation which allowed UK to do this had expired. The council renewed it but then the case was referred to the ECJ. ECJ invoked Article 7 of the Convention that penal measures must not be retrospective. Kirk was cleared. UK not entitled to prosecute him for something which was not an offence at the time when he did it.
Ex p Fedesa
ECJ provided definition of proportionality:
1) Measure must be appropriate or suitable to achieve the desired objective
2) It must also be necessary to achieve the desired objective
3) It must not go further than is required
Art 5 TEU
“Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”
