Supremacy

Question 1

The european perspective: absolute supremacy

Answer 1

In federal systems federal law is supreme over state law but in some cases there is a ‘decentralised solution’ where state law is supreme in certain instances.

Question 2

Supremacy and direct effect

Answer 2

supremacy and direct effect are not different sides of the same coin – supremacy implies direct effect, but direct effect does not imply supremacy.

Question 3

Costa v ENEL

Answer 3

Established the concept of supremacy in the EU - question was whether a national law passed AFTER the treaty would be supreme over EU law. The ECJ rejected the idea that MS’s could unilaterally determine the status of EU law as EU law cannot vary from state to state.

Question 4

Internationale Handesgesellschaft

Answer 4

The ECJ never accepted the relative scope of supremacy. This case clarified that EU law is supreme as otherwise it would have an ‘adverse effect on the uniformity and efficiency of [EU] law’. This asserted the absolute supremacy of EU law over national law.

Question 5

Supremacy over international treaties of the Member States

Answer 5

This provided an exception to supremacy (now found in Art 351 TFEU) where treaties signed prior to the 1958 treaty are supreme over EU law. However it was limited to implementing their obligations and not enforcing their own rights (Commission v Italy [1962]).

Question 6

Executive nature of supremacy

Answer 6

The outcome of a question of supremacy is not that the law would be declared void or held inapplicable to the situation, it would be ‘disapplied’ (Simmenthal II).

Question 7

Simmenthal II

Answer 7

In this case, the question asked was whether lower courts could reject Italian law in favour of EU law because in the Italian constitution only Parliament or the Supreme Court can reject legislation. The EU replied stating that all national courts were under a direct obligation to apply EU law to uphold ‘the very foundation of the [EU]’.
While some scholars thought conflicting national law would have to be repealed, the ECJ stated that “with the principle of precedence… those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law… also preclude the valid adoption of new legislative measures to the extent to which they would be incompatible with European provisions.”

Question 8

Ministero delle Finanze v IN.CO.GE. ‘90 [1990

Answer 8

Clarified that national legislators CAN adopt incompatible legislation (disregarding Simmenthal II) and the courts are under the same obligation to disapply it, whether it is prior or post treaty.

Question 9

Effect of disapplication

Answer 9

Normative validity of legislation is intact - supremacy is a remedy. National laws are onnly disapplied to the extent which they conflict with EU law, and if the EU is ever repealed then the national law becomes fully operational again.

Question 10

The national perspective: relative supremacy

Answer 10

Absolute supremacy is not agreed with by most member states. Member states see it as relatively supreme, i.e. supreme up to the point that it is limited by the national constitution.

Question 11

The ‘So-Long’ jurisprudence

Answer 11

Consisted of two cases:

• international handelsgesellschaft (So Long I)
• Wunsche Handelsgesellschaft (So Long II)

Question 12

international handelsgesellschaft (So Long I)

Answer 12

The ECJ in this case asserted their supremacy over German constitutional law and it would take it upon itself to protect EU human rights.
It went back to the German courts who rejected the ECJ view and replaced it with ‘relative supremacy’ which means certain features of the German constitution are beyond the supremacy of EU law.

Question 13

The ‘So Long I’ clause

Answer 13

Basically, ‘so long’ as the EU had not developed an adequate standard of fundamental rights protection, the German constitutional court would disapply EU law that conflicted with fundamental German rights. This shows the relativity of the EU’s supremacy: until they developed adequate human rights machinery, the German constitutional court would reign supreme.

Question 14

Wunsche Handelsgesellschaft (‘So Long’ II) [1987]

Answer 14

This case recognised the adequate protection of human rights in the EU and inverted the So Long clause to being that “the German court promised to not question EU law so long as it protected fundamental rights.”

Question 15

Competence limits

Answer 15

The ECJ was to limit and control EU competences as the ECJ alone could disapply and invalidate EU law (Foto-Frost).

Question 16

Maastricht [1994] (case)

Answer 16

An ultra vires review doctrine was set out. It formed the premise that the EU works on the conferral of powers and therefore the German courts would not apply legislation which they believed to be beyond their powers.

Question 17

Lisbon Decision [2010]

Answer 17

This confirmed the Maastricht decision.

Question 18

Honeywell [2010]

Answer 18

This case was a constitutional complaint as a result of Mangold, where the claimant argued that the ECJ’s ‘discovery’ of a European principle of anti-discrimination in regard to age was ultra vires.

The ECJ accepted that an ultra vires review could take place, but only if it is manifest that acts of institutions are beyond their powers. This has never happened but it still demonstrates the plurality in the supremacy doctrine.