Supremacy Flashcards
Costa
Introduction of the principle of supremacy, something the treaty was silent about.
Teleological reading of Art 288: community laws were accepted on the basis of national laws –> cannot be inconsistent, they integrally coexist
Internationale Handelsgesellschaft: scope of Costa supremacy - relationship with MS
Primary and secondary EU law take precedence over primary and secondary national law (here, the German Constitution)
Functional argument of Costa (Craig and de Burca): domestic laws cannot contradict EU law “without jeopardising the attainment of the objective of the Treaty
Simmenthal
Every national court must apply supremacy doctrine
Issue in civil law countries: constitutional courts might be solely able to decide on constitutionality of laws –> CJEU doesn’t ask courts to void laws
Winner Wetten
Confirmed Simmenthal principle that supremacy doctrine applied irrespective of whether national law pre-dated or post-dated EU law (EU law renders inapplicable and prevents)
Factortame
UK law at the time did not allow for interim relief against the Crown –> CJEU reiterated Simmenthal ruling on need for effectiveness and automatic precedence of directly effective EU law > national laws
Larsy
Not only national courts but also relevant administrative agencies should misapply conflicting national law
Elchinov
A national rule that rendered lower courts bound by rulings from higher courts could NOT prevent the former from exercising its discretion to seek a ruling (Art 267) where it felt the higher court was contradicting EU law –> lower court would be bound to follow CJEU ruling
SUPREMACY FROM THE CJEU’S PERSPECTIVE
Their power rooted in superior power of EU treaties/caselaw, monist view of supremacy –> emerging as a collective entity with a common purpose (Communautaire reasoning) = teleological reading of Art 288
Germany: supremacy cases
Honeywell Solange I Solange II Brunner 2 BvR Lisbon decision
Honeywell
Acceptance of CJEU supremacy with limitations - ultimately locating EU law’s authority within Art 23.1 of BVerfG (which specifically allows for transfer of sovereign powers)
3 types of limitations on supremacy impose by BVerfG
1) fundamental identity (Solange I and II)
2) competence (Brunner, 2 BvR)
3) constitutional identity (Lisbon decision)
Solange I
Conditions for the acceptance of supremacy: as long as the treaties “lack a codified catalogue of fundamental rights” (like the Grundrechte), German Grundrechte would in theory take precedence in a conflict
RIGHT RESERVED BUT NEVER EXERCISED
Solange II (Wünsche Handelsgesellschaft)
BVerfG was generally satisfied with acceptance of ECHR by all MS - still preserved final authority!
Vosskuhle of Solange II
To attack secondary EU law on the basis of German Grundrechte: MUST argue that the general level of EU human rights fell below the necessary level, compared to Grundrechte
–> high bar!
Brunner
Ultra vires lock: MS = Masters of the Treaties with review power in situations concerning Grundrechte where EU exceeds its competence granted in Art. 235 TFEU (voting procedures)
2 BvR 2661/06
Made it ore difficult to challenge CJEU supremacy based on ultra vires argument: CJEU has to be given opportunity to rule on issue + any excess of power must be MANIFESTLY in violation of given competence, the impugned act = HIGHLY SIGNIFICANT
Germany: ultimate Kompetenz-Kompetenz
Consider themselves (not CJEU) to have Kompetenz-Kompetenz to decide whether EU actions are within the scope of EU competence
Lisbon decision
Ruling on compatibility of Lisbon Treaty with German Verfassung - introducing “identity lock” –> recognising limitations of supremacy regarding areas considered of constitutional identity
Factortame (no 2)
Lord Bridge: supremacy was “well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community”
–> entirely voluntary acceptance of its terms, acknowledging to an extend communautaire reasoning of the CJEU and mirroring the Costa contractual argument
UK: acceptance of supremacy
Nature of parliamentary sovereignty:
ECA 1972 - acceptance subject to continued approval(by Parliaments because P. cannot bind itself) rather than firmly established security
EUA 2011 - “sovereignty clause” + “referendum locks” in relation t future transfers of power to EU
–> enforceability of international law directly linked to statute law => assumed that UK courts would define themselves as holding ultimate Kompetenz-Kompetenz
HOWEVER: there has not yet been a UK case to raise that issue
Thoburn v Sunderland CC
ECA = statutory foundation for supremacy acceptance (can only be amended/abandoned expressly and unequivocally –> THIS understanding of supremacy is consistent with principle of PS
HS2 (no 4)
Lord Rees:
“the relationship between EU and national law cannot be resolved through the doctrine of supremacy developed by the Court for in our law that doctrine is itself dependent upon the 1972 European Communities Act”
CJEU’s response to HS2 (no 4)
Explicitly stated (quite unprecedented!) that CJEU would be more accommodating if asked to be
Ireland’s response to supremacy
SPUC: paradoxically applying the CJEU’s teleological approach in rejecting EU law (“it could never have been the objective of the CJEU” to restrict constitutional rights in such a way)
–> accepts in theory, restricts in practice
SUPREMACY FROM MS PERSPECTIVE
Justification for acceptance of supremacy: endogenous in their own legal orders –> limitations + interpretation of ultimate Kompetenz-Kompetenz
BI-DIMENSIONAL APPROACH
The Netherlands and Belgium
Both adopted CJEU’s teleological understanding of its supremacy (seen in LeSki judgement and argues by De Witte)
DUALIST DOCTRINE OF SUPREMACY
Do EU and national courts remain self-referential, their relationship pluralist?
CREATIVE DISAGREEMENT
Reestman on pluralist nature of relationship
“political and judicial pragmatism” –> practical compromise despite MS holding ultimate Competent-Kompetenz
Lord Denning’s notion of practicality
Bulmer v Bulmer:
Treaty = incoming tide, cannot be held back
German ultra vires locks
In reality rarely exercised –> practicality
CJEU’s “top down” approach
CJEU’s compromise: drastic doctrines (that theoretically should upset the balance of power) are given narrow application to accommodate MS
Art 351
CJEU recognises MS’ obligations under other international treaties which permit derogations from primary EU law
HOWEVER: this has been interpreted strictly in a manner that requires MS to renegotiate or even withdraw from international treaties when obligations assumed may not be reconciled with EU law
CJEU’s willingness to defer to the constitutional standards of MS
Schmidberger || Omega: exceptionally (!) allow for EU supremacy to be set aside for rights protected under Austrian/German constitutions
Rewe-Zentral AG - HAD REJECTED that 30 years prior
–> this became: Art 4(2) TFEU!
Art 4(2) TFEU
National identity clause –> Sayn-Wittgenstein
Sayn-Wittgenstein
Abolition of nobility AS AN ELEMENT OF NATIONAL IDENTITY may be taken into consideration when balance is struck:
Sayn Wittgenstein: required title “Fuerstin von” through adoption under German law, intending to use it for business purposes as a real estate agent but Austria had abolished nobility (within a law of constitutional status). She argued this interfered with her free movement and establishment right
De Witte: CONTRA Art 4(2) identity clause
Austria’s banning of nobility titles might have been accepted as constitutional identity but CJEU stayed away from cases of abortion (Ireland), prostitution (France) and recreational drugs (the Netherlands) –> deferred to MS’s conceptions of morality
CURRENT SITUATION
Status quo, bearing inherent risk of extreme conceptions on either side
Pringle controversy and CJEU’s expansion into monetary policy –> absolute supremacy the ultimate reality?
Vosskuhle of CJEU vs. MS
“Verbund”: combination or association rather than oversimplified spatial and hierarchal conceptualisations of superiority –> cognitive dissonance kept within reasonable bounds
Avbelj
Supremacy vs. primacy: the actual word “supremacy” has only been used twice (Walt Wilhelm and Fratelli) and that merely in English translations!
CJEU might be more hesitant to suggest a drastic supremacy doctrine?
“primacy” = CJEU has remained ambiguous and avoided direct suggestions of natural superiority, allowing for MS discretion
Lord Mance: CJEU supremacy
CJEU has increasingly avoided teleological readings: The Queen v Her Majesty’s Treasury (2010)
