EU Law Supremacy Flashcards
In the founding treaties of the EU is supremacy mentioned?
no
where was the doctrine of supremacy established?
by the court of justice of the EU in its case law
in what case can the earliest definition of supremacy be seen?
Van Gend en Loos
What did the court conclude in Van Gend en Loos?
not that EU law is supreme but that national law is no longer at the top of the hierarchy
member states have limited their national sovereignty for the benefit of the European Community
this established direct effect rather than supremacy
recognised EU as a new legal order
what was concluded in Costa v ENEL - second milestone judgement
established the doctrine of supremacy of EU law
Court told us that the EEC created its own legal system - own institutions, own legal personality and legal capacity
the COJ tells us giving preference to the unilateral and subsequent measure of one of these national governments or one of these national parliaments that goes against EU law cannot stand
member states have limited their sovereign rights creating a new body of law which binds nationals and themselves
sovereignty of EU takes priority
what was concluded in Internationale Handelsgesellschaft (IHT)?
that EU law has supremacy even over national constitutional law
protection of fundamental rights forms part of the general principles of EU law
What was concluded in the Simmenthal Case 1978?
- existing incompatible domestic law is automatically inapplicable
- precludes valid adoption of new national legislative measures incompatible with EU law
- conflicts of law are to be settled by EU law, not domestic law
what are the two approaches to constitutionalism?
constitutional monism
constitutional pluralism
what are the two levels that the approaches to constitutionalism can operate at?
descriptive and normative
what is the descriptive claim of constitutional monism?
according to constitutional monism all law and political power of a given territory derive in some ultimate sense from a single and ultimately hierarchal source of constitutional authority
that territory’s sovereign people and their constitution
what are the normative claims of constitutional monism?
- singular source of constitutional authority in any given legal system
- hierarchy - legal and political authority must derive from one ultimate source
- rules from this source trump all other rules
- demos - one people must form one state on the basis of one constitution
what does the CJEU say about the European Union in terms of constitutionalism?
that it is a constitutional legal order
EU law has supremacy over national law
what is the monist argument of the member states?
- that there is ultimate authority in state territory
- constitutional law of member states is hierarchically superior to non-constitutional legal order of the EU
- member state = masters of the treaties
- no European constitutional demos
what are the descriptive claims of constitutional pluralism?
- no single authority (supreme and final)
- no supreme interpreter in cases of conflict
- heterarchy
- two legal orders are co-equal, co-existent, interactive, overlapping
what are the normative claims of constitutional pluralism?
- constructive dialogue as a means of resolving conflict
- openness, mutual respect, accommodation of difference
- views plurality of actors and changes in legal terrain as an opportunity for interaction and integration
- democratic legitimacy
