PRINCIPLES BINDING UPON THE MEMBER STATES Flashcards
Van Gend en Loos [1963] ECR 1
It isn’t famous for establishing Primacy, but it is famous for establishing the principle of Direct Effect and for making some very famous and interesting pronouncements on the nature of EU law itself, and on the relationships between the EU and the member states.
The dispute at the heart of the Van Gend en Loos case was about the setting of customs duties. So if goods are imported across the border, in this case they cross the German-Dutch border, there was a question of the legality of imposing customs duties, or taxes, on goods that cross the border. Duties are a nice way of making money, but in the light of the single market, and in the light of the EU’s objectives to make trade much easier and much less costly across borders, a lot of stuff in the Treaty of Rome was about minimizing or eliminating these sorts of taxes to make free trade areas across different borders. That’s really about as much as we need to know about the facts in Van Gend en Loos. It was about a dispute that arose over the setting of attacks at the border between Germany and the Netherlands. This dispute eventually went to court in the Netherlands, and the court thought “well, what should happen now?” In the very early days of the EU, there was a question of whether the Dutch court should decide the case itself, or didn’t have to ask some questions to the Luxenberg court – the Court of Justice, which is able to far more authoritatively interpret the treaty. So the Dutch court decided it would make a preliminary reference, which is a topic we will be doing in a few weeks time, which basically means if asked a question to the Court of Justice, basically saying “what shall we do?” “Should we respect this wording of the treaty that says there should be no customs duties, or should we respect national law, which says there shall be customs duties?” Okay… Take people’s monies when goods cross the border… This was quite a brave thing for the court to do. It didn’t decide the case, it asked the question to Luxembourg. Luxembourg basically popped open champagne and said “fantastic, finally a country sending us a nice case. So we can use this case as a sort of vehicle to develop principles of EU law that can apply in future cases and make the treaty much more useful to ordinary people.” And in doing that the court in Luxembourg – the Court of Justice – decided to develop the principle of Direct Defect.
It argued that the treaty, and particularly the treaty provision that was being argued about, produces Direct Effects at national level, and also creates rights for individuals national courts should be able to protect.
So the court of justice in Van Gend en Loos said that this particular treaty provision, Article 12 in the original treaty, produced Direct Effects at national level, and created rights for individuals – i.e. you don’t have to pay tax. And it creates rights that national courts should be able to protect. The magic of that pronouncement is that if you, as an individual, don’t want to pay tax, and the treaty says you don’t have to pay tax, and even though national law says that you do have to pay tax, then you can rely on your rights articulated in the treaty and you shouldn’t have to go to Luxembourg to claim the rights; you should be able to go to local courts in Paris, or Sisley, or wherever you happen to be located.
Costa v ENEL [1965] ECR 585
this dispute with Mr. Costa. Mr. Costa was a shareholder in an electricity firm called ENEL, and he had noticed that in Italy a nationalization program for the electricity industry was going on in Italy and he was concerned that the way this was being done violated the Treaty of Rome. That it violated EU law. In protest he refused to pay his electricity bills to this company and owed the grand sum of what is now £1.10 in today’s money. It was a tiny amount of money, but on principle he refused to pay because he was pretty sure that Italy was violating EU law, and amazingly this tiny dispute made it to a court in Italy. Some keen young lawyer had obviously heard about EU law, and decided to send a question to the court in Luxembourg and see what answer would be returned. So our smart young lawyer in Milan sent a preliminary reference to the court in Luxembourg asking if Italian law nationalizing the electricity industry in conflict with EU law. The court in Luxembourg said yes, there is a clash between EU law and national law. And moreover, the people like Mr. Costa, who do their research and realize that they don’t have to pay their electricity bills… People like him, ordinary citizens, should be able to challenge national law at national level using the argument that national law violates EU law and get the address and national level.
In the courts view, EU law is not effective unless it is possible. So you need Direct Effect plus Primacy to make it really possible for ordinary people to make these challenges at national courts and expect to get some sort of remedy in response.
The remedy might involve the national judge dis-applying national law in order to give effect to EU law at national level to make sure that the ordinary individual in court gets the remedy that they need.
Even now we don’t notice Primacy as a principal really articulated in the Treaties, but it was codified decades later in a political declaration appended to the back of the Lisbon treaty. If you go to Declaration no. 17, that is the declaration about Primacy.
Internationale Handelsgesellschaft [1970] ECR 1125
The way this rather humble agricultural dispute went to court is that the trader who lost his cash went to court and argued that the deposit system under the EU rules that caused him to lose his money violated German law and unconstitutional. It violated German basic Law. And the German court that received this case decided that it would interact with the Court of Justice in Luxembourg and sent a question, but it sent a very assertive question saying, or rather telling, the Luxembourg court “okay, there is this dispute, however, in our view, German law has to take precedence over EU law in the situation. We can’t have supranational EU law taking precedence over every single aspect of German basic Law and German constitutional law. That would be incorrect.”
So the German court didn’t ask this as a question. The German court told the EU court this as a statement in a very assertive manner. What do you think the EU court date? They reacted with horror, and responded with equal brashness and equal assertiveness. Basically they told the German court what the deal was.
In that case, the Court of Justice decided to reinforce this principle of primacy by saying that EU law takes priority over any national law of any rank and any status. It doesn’t matter if it is a humble, little, statutory instrument or Article 1 of the Constitution. It doesn’t matter what kind of national law it is. If it clashes with EU law it should be dis-applied.
Maybe some judges didn’t think primacy quite meant that much. Maybe some judges thought national constitutions would be protected from the scene of Primacy and its impact. The court was really keen to emphasize this.
Many of us come from other EU countries that have constitutional courts that are very assertive and they are very used to scrutinizing national laws against their national constitutions and striking down national law. For them, the Constitution is almost sacrosanct. It cannot be overridden by anything. So this idea that EU law could even override constitutions as a sort of major mental thing to have to deal with.
Brunner v European Union Treaty [1994] 1 CMLR 57
Now, if you are interested in the German system and how Germany has accommodated primacy, one of the key cases
The Brunner Case… it is an interesting part of the German narrative. Because it notes that the member states are the masters of the Treaty, which is something that we could all do with some reminding on, especially now that the referendum debate is ongoing. Ultimately it is the member states that negotiate every treaty. They decide what goes on. They voluntarily decide to sign up to it. If they complain about it later that’s a shame.
Factortame
is the case about the Merchant Shipping Act which created discriminatory provisions, basically allowing British owned and managed and run to the vessels to have access to fishing waters around the UK, and they were saying that Spain could just go away… they didn’t want Spanish vessels coming in and fishing. This was a very protectionist attitude.
The Factortame saga generated at least six different judgments. For our purposes Factortame I & II are especially important on the interim relief issue. She has asked us to reread this for our tutorial next week. Please do because it is key and we have to note and pay particular attention to Lord Bridge’s dicta, his views in Factortame II.
Jackson v Attorney General [2005] UKHL 56 (on Hunting Act 2004)
Yes, this causes some tensions with the traditional version or visions of sovereignty, but in principle, or at least in theory, Parliament retains complete power to make or unmake any law it pleases whatsoever. Although in some cases it may be politically challenging for it to do so.
This case Illustrates this really well.
R v Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 AC 1
EU law has had a tremendous impact on accelerating equal treatment, combating sexual discrimination, age discrimination, race discrimination… All its different forms. All of this has been rapidly accelerated thanks to EU law. Progress in these areas would have been much slower if we didn’t have EU law to rely upon.
Thoburn v Sunderland County Council [2002] 1 CMLR 50
is about the metric bananas. The guy who sold the bananas got caught out by the treating stands people for not selling it in the right measurements. Lord Justice Laws is very famous for his findings on constitutional statutes… that it would be very hard to overturn constitutional statutes such as the ECA 1972 and that they should be overturned with an express repeal and not implied repeal – they are too important.
