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EU law > EU Supremacy > Flashcards

EU Supremacy Flashcards

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1
Q

Van Gend en Loos

A

The community constitutes a new legal order of International law for the benefit of high states have limited their sovereign rights and the subjects of which comprise MS and their nationals

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2
Q

Costa v ENEL

A

MS have limited their sovereign rights creating a body of law binding themselves and their nationals. In the case of a conflict, MS needs to be set aside prioritising EU law

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3
Q

Internationale Handelsgesellschaft

A

Validity of a community measure cannot be affected by allegations it runs contrary to either fundamental constitutional rights of that state or principles of a constitutional structure

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4
Q

Simmenthal

A

National courts must set aside any provisions that conflict prior to or subsequent to the Community rule. Do not have to declare it unconstitutional, just need to set it aside.

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5
Q

R v SOS Evans Medical

A

Conflicting national laws can remain in place if it is necessary for compliance with international obligations agreed to prior.

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6
Q

Factortame

A

If the court would grant interim relief if not for national law then they must set aside that rule.

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7
Q

Commission v France

A

MS must not maintain conflicting rules even if they are not applied in practice.

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8
Q

INASTI

A

All courts within a MS are under a duty to give full effect to community law.

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9
Q

Minister o delle Finanze

A

National courts may still apply conflicting laws in a non-EU context. They do not need to be completely void.

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10
Q

Rosemarie Kapferer

A

National Court is not always obliged to review and set aside a final judicial decision which infringes EU law. Res judicata.

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11
Q

Articles 1-6

A

The constitution adopted by the institutions of the EU in exercising competences shall have primacy over the law of the MS.

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12
Q

Declaration 17

A

The treaties of the Union have primacy over MS law.

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13
Q

European Communities Act 1972 s2 (1)

A

Domestic Effect/Direct enforcement of directly effective EU law

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14
Q

European Communities Act 1972 s2 (2)

A

Implementation of EU law

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15
Q

European Communities Act 1972 s2 (4)

A

Interpretation of all UK legislation in light of EC Act 1972

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16
Q

European Communities Act 1972 s3

A

Compliance of UK courts with European Communities Act 1972

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17
Q

European Communities Act 1972

A

Basis for the recognition of supremacy of EU law over any conflicting domestic legislation, primary or delegated, prior or subsequent to the European Communities Act 1972

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18
Q

Harmonious Construction

A

Courts should interpret UK legislation in light of EU law even if it is not a literal interpretation - s2 (4).

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19
Q

Macarthys v Smith

A

Harmonious construction (unless Parliament had expressly intended to depart from EC law)

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20
Q

Garland v British Rail

A

Upheld harmonious construction

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21
Q

Factortame (no 2)

A

Duty of a UK court when delivering judgment to override any rule of national law found to be in conflict

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22
Q

Thobun v Sunderland City Council

A

Laws LJ: the duty to give effect to EU law does not exempt from the duty to uphold fundamental rights.

23
Q

Article 24

A

Grants the transfer of sovereign powers to international organisations

24
Q

Article 25 + 59(2)

A

International treaties ratified by federal law prevail over all other statutes.

25
Q

Solange I

A

Transfer of sovereign rights to the EC must not affect the fundamental rights of the German Constitution, initially made compliance conditional on this. Review EC law in light of German constitutional rights.

26
Q

Solange II and Article 23

A

So long as the EC and case law provide an effective protection of fundamental rights substantially similar and don’t fall below the standards of the German constitution, the FCC will no longer exercise its jurisdiction.

27
Q

Maastricht Treaty

A

Incorporated Solange II. Transferred sovereign powers to the EU by an Act of Parliament. FCC will only intervene if the constitutional standards are infringed. Ultra vires review.

28
Q

Banana Market Regulation

A

Applicant failed to show the standards of protection of fundamental rights in EU law, including the ECJ case-law had fallen below German Constitutional Standards.

29
Q

Lisbon Judgment

A

Introduced “constitutional identity review”. Must ensure the EU action does not infringe fundamental principles of the German constitution.

30
Q

Honeywell

A

Three conditions summed up.

31
Q

1 January 1973

A

UK joins the European Community

32
Q

218(3) TFEU

A

Withdrawal agreement negotiated in accordance with this. Acting by qualified majority after obtaining consent of EU Parliament.

33
Q

238(3)(b)

A

Qualified majority Brexit minimum 72% of MS in council. 65% of total population of MS.

34
Q

50(2) and 218(3)

A

Withdrawal agreement concluded by the UK and EU only

35
Q

De Keyser

A

Where Parliament has discussed an issue, executive cannot have recourse to any prerogative power touching the same subject matter.

36
Q

R (Miller) v SOS for exiting the EU

A

General prerogative rule is that it only applies should it not have any effect on national law. EC Act 1972 is domestic law.

37
Q

Constitutional Dualism

A

Act of Parliament is required to give effect to the provisions of a treaty in domestic law. Parliament is therefore given a voice.

38
Q

Lisbon Treaty

A

This was dropped as it was too ambitious and controversial. EU Council requested its removal to reduce “constitutional character of the Treaty” Replaced by Declaration concerning primacy….

39
Q

Declaration 17 concerning Primacy

A

“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 conditionals laid down by case law”

40
Q

Opinion of the Council Legal Service on the primacy of Community Law

A
  1. “Primacy of the EC law is a cornerstone principle.”
  2. “The fact the principle of primacy will not be included in the future Treaty shall not in any way change the existence of the principle and case law of the CJEU.
41
Q

EU Act 2011

A

Regime of parliamentary and referendum “locks” on EU Treaty amendments extending EU competences inspired by the “locks” fashioned by Germany.

42
Q

Duke v GEC Reliance Ltd

A

Harmonious construction was initially only applied to directly effective provisions

43
Q

Lister v Forth Dry Dock, Pickstone v Freemans and Webb v EMO

A

The HoL accepted the doctrine of direct effect.

44
Q

EOC

A

HoL held there was no constitutional barrier to an applicant before any UK court seeking judicial review of primary legislation alleged to be in breach of EC law

45
Q

Mr O. Dutheillet de Lamothe (Germany)

A

“There is a divorce, but like many modern couples, the two maintain a peaceful and friendly relationship”

46
Q

John Bell (Germany)

A

The constitutional order of the EU and that of the MS can adjust happily to each other, as long as the ultimate question of who is sovereign is never put to the test

47
Q

23rd June 2016

A

51.9% voted to leave whilst 48.1% voted to remain

48
Q

Article 50

A

State all five sections

49
Q

Article 50(2) and 218(3)

A

The withdrawal agreement shall be concluded by the UK and EU only

50
Q

De Keyser

A

Where Parliament has spoken on an issue the executive cannot have recourse to any prerogative power on the same subject matter…

51
Q

De Keyser analogy misplaced? Paul Craig

A

Triggering Article 50 has no legal effect on the EC Act 1972.

52
Q

Lord Reed dissenting in Miller

Mark Elliot agrees but thought the majority decision was more politically correct.

A

EU law is not a source of UK law but a distinct body of law. The 1972 Act merely gives effect to it. Parliament had not intended people in the UK should be aligned for the duration of membership therefore we can remove EU law through prerogative power.

53
Q

Theresa May 12 Principles most important

A

Controlling immigration, securing rights for EU nationals in the UK and vice versa, protecting workers rights, ensuring free trade with EU markets

EU law (10 decks)

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