Primacy of EU Law Flashcards
What case established the notion of primacy
Costa
Costa
Facts: During the 1950s there was a rapidly growing demand for electricity in Italy.
The Italian government decided that the most effective way was to nationalise it.
Various private entities existed prior but it was all bought into the public sphere.
Costa was a shareholder in one of the privately owned companies.
When the state nationalised the companies, private companies felt that they hadn’t received adequate compensation.
Argument: This change was contrary to Italian law and the EEC treaty as it was anti-competitive and distorted the market.
Held: Cannot query the validity of legislation by the Italian parliament on the basis that it contradicted the EU treaty.
The committee could bring them to the CJEU but private parties cannot do that.
Question: Having signed up to the treaty, can they not unilaterally depart from the treaty subsequently?
Costa refused to pay his electricity bill in protest and this led to action against him.
Issue: Where the Italian parliament had adopted legislation after adopting the treaty and there was a conflict between the two, which would prevail.
Held: Court looked at the spirit of the treaty and looked at in a broad way.
By contrast with ordinary international treaties, the EEC has created its own legal system which member states and their courts are bound to apply.
When the states signed up to the treaty, they permanently transferred part of their sovereignty.
By doing so they limited their freedom to act in a way that is contrary to the community legal system.
The force of EU law would be completely undermined if any of the states would depart from it.
NAme other cases on primacy
Internationale Hadengeelschaft
Administration of the finance of the state v Simmenthal
Factorame
Internationale Hadengeelschaft
And German national crt reachtion
Held: The law stemming from the treaty cannot be overridden by rules of national law as it would undermine the legal basis of the community itself.
The validity of a Community measure cannot be affected by the fact that it runs counter to fundamental rights or the Consitution of a member state.
German Constitutional Court Response:
If the CJEU upholds fundamental rights itself, the courts will not step in for compliance with fundamental rights in the Constiution.
Did not accept an unrestricted and unlimited primacy of Community law.
Refused the idea that national law must always give way to Community law.
Administration of the finance of the state v Simmenthal
Facts: Concerned charges levied for veterinary inspections of meat.
This was contrary to EU law: Charging importers or exporters was contrary to the treaty and single market.
The company bought an action seeking the reimbursement of the charges.
Held: The court recognised that levying the charges was contrary to the treaty.
Every national court must apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it
Invalidating Italian law was something the Italian Constitutional Court had to deal with and not the CJEU.
The company argued that because the provision was contrary to EU law, the lower court should set it aside even though it wouldn’t usually have the jurisdiction to do so.
Issue: Did the lower court have to wait for the Italian Constitutional Court?
Held: Every national court must apply community law in its entirety.
To ensure that EU law is effective and is upheld, all national courts effectively become EU law courts.
Factorame
Facts: The EU manages the fish stocks of member states and sets quotas.
A significant number of Spanish-owned fishing vessels were within the UK waters and were thus feeding into the UK quota.
UK introduced legislation that mandated a boat be 75% British owned to be allowed to fish in UK waters.
Argument: This provision discriminated against the nationality of people and businesses.
Factorame sought interim relief to suspend the act of parliament pending the decision.
UK response: An unwritten constitutional principle is that parliament is sovereign and the court has no power to do so.
HoL sent a preliminary reference to the CJEU:
Should they ensure the full effect of EU law, or should they act in accordance with the constitution of the UK?
Held: Must ensure the sanctity of EU law even if that means suspending an act of parliament
The legislation was discriminatory and contrary to EU law so could not come into effect.
Constiutional provision in Irtrish law
Article 29.4.6 of the Constitution:
Article 29.4.6 of the Constitution:
Bo part of the consitution invalidates itish law
State case in irish law
Minister for Justice, Equality and Law Reform & others v Workplace Relations Commission
Minister for Justice, Equality and Law Reform & others v Workplace Relations Commission
Facts: Concerned legislation implementing a maximum age of 35 for application to the Garda.
Argument: This was contrary to a directive of the EU that prohibits discrimination on grounds of age.
Ireland’s response: The equality tribunal has no power to set aside a statutory instrument.
HC: Agreed that it wasn’t a power that the Equality Tribunal could exercise.
SC: Upheld the decision in the HC.
Clarke J: As a matter of fundamental Irish constitutional law, the Tribunal did not have jurisdiction to disapply legislation.
Referred to CJEU for Interpretation:
CJEU: Distinguishes the power to disapply laws from the power to strike down a provision of national law.
The duty to disapply national legislation contrary to EU law applies to all organs of the State.
The WRC is a body established to ensure the enforcement of EU law, and so it must have the power to disapply.
Are there limits to primacy
state opinions
CJEU: Primacy is absolute.
National Apex Courts (The highest court in each national court): Suggested that in certain circumstances they might not always accept the supremacy of EU law.
What if the Union Acts Beyond the Powers Conferred on it by the Treaties?
state differing opinions
CJEU:
Referencing the Tobacco Advertising Case
Held: It is solely for the CJEU to decide whether EU laws are invalid because they breach the limits of the Treaties.
Criticism: The CJEU is an institution of the EU, if it polices the limits, it can be argued that it’s sympathetic to the EU and will not nullify them so readily.
German Constitutional Court:
Brunner v The EU Treaty [1994] 1 CMLR 57
Facts: The Maastricht treaty was challenged, and it was argued that it was in breach of the German Constitution.
Held: The German court reserved the possibility to review the legality of EU acts if they exceeded the competencies conferred by the Treaties.
Note: This was a hypothetical statement, Germany did not do it until 2020.
Name seminal case
Bombshell
Bombshell
Facts: Concerned the legality of actions of the European Central Bank.
Because there was a lot of debt following the financial crisis in the EU, the ECB would begin to buy the debts of member states.
Controversy: The ECB had breached its powers by taking on elements of national debts.
German Constitutional Court sent to the CJEU asking whether this was a breach of the ECB powers under the treaty:
CJEU: It was not a breach of their powers as the actions were a response necessary to the situation.
German Constitutional Courts:
Held: Expressly rejected the CJEU decision.
In this case, the delimitation of competencies undertaken by the CJEU is simply untenable.
The interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary.
The Judgment of the CJEU manifestly exceeds the mandate conferred upon it resulting in a structurally significant shift in the order of competencies to the detriment of the Member States.
To this extent, the CJEU Judgment itself constitutes an ultra vires act and thus has no binding effect in Germany.
The Commission brought infringement proceedings against Germany:
Decided not to proceed as the German government sought to reaffirm its commitment to the primacy of EU law and worked with the ECB to make sure future provisions were acceptable.
Is primacy absolute or conditiona;
Repasi
Interdepend on eachother
Consistent dialogue where they both alter eachother so they dont explicitly disagree
