Supremacy Flashcards
Supremacy Established in this case
Flaminico Costa v Enel
Purposive:
States have transferred sovereignty via the treaties, intending to establish a new legal order
Consistent
If domestic law takes precedence, then EU law will become inconsistent between member states, defeating purpose
Contextual
If treaty obligations can be excused by domestic legislation, they will be contingent and not conditional. This will be inconsistent with language in the Treaties.
EU law applies even when contrary to domestic law, for purposive reason. EU law must apply otherwise legal basis of EU law will be called into question and project undermined.
Internationale Handelsgesellschaft
EU law applies irrespective of whether national law post-dates or predates it, and EU law must apply in its entirety, with any national law provisions that conflict with it should be set aside - purposive
Simmenthal
UK was required to disapply domestic law precluding a grant of interim relief, since it was contrary to Community law
Factortame
Some countries accept the primacy of international treaties as part of their constitutional order, meaning that ECJ decisions have already been implicitly assimilated
Netherlands and Luxembourg
EU law is empowered in Germany by this, supremacy flows from domestic law, rather than Costa
Article 23 of the Grundgesetz
In reaction to ECJ’s ruling on Internationale Handelsgesellschaft, BVerfG ruled that EU law has to comply with rights enshrined in the Grundgesetz. EU law’s supremacy was therefore conditional
Solange I
BVerfG softened earlier stance, as long as EU law protected fundamental rights to the same standard as the Grundgesetz, no need to review secondary EU legislation. BVerfG will only intervene in exceptional cases. In 13 years between these judgements, no German court has rejected an legislative instrument of the EU. Theoretical, not practical
Solange II.
BVerfG stated that German ratification of Maastricht Treaty was compatible with Grundgesetz, but that it would exercise its own power of review over EU’s competence - ultra vires lock. If ECJ determined its own competence, it would affectively determine the limits of national sovereignty
Brunner
BVerfG held that it would not easily conclude that EU had acted beyond it competence. Relaxation of ultra vires lock
Honeywell
BVerfG outlined 5 areas where state must have competence, and that European unification should not be at the expense of these. Represent core of German constitutional identity.
Done after Lisbon Treaty
Source of Sumpremacy in UK law per dualist legal system.
ECA 1972
Scope of supremacy in UK - UK has flexibility through developing concept of constitutional statute to defeat doctrine of implied repeal
Thoburn v Sunderland City Council - Wade calls this a “technical legal revolution” as little existing justification for it.
Scope of competence in UK - important provisions in this act
European Union Act 2011
“Sovereignty Clause” - EU stresses that EU law is recognised only by virtue of ECA 1972, as an assertion of Parliamentary sovereignty.
s. 18 European Union Act 2011, but as Gordon and Dougan argue, this is just confirmation of the status quo.
Referenda lock: this act makes provision for various locks in relation to future power to the EU.
European Union Act 2011
In dicta, Lord Mance said English court would only toleration of clearly identified limits of EU law.
Pham
Lord Carnwath thought that ECJ decisions should not be read by national court in way that called identity of national constitutional order into question
HS2
Source of Supremacy in Italy - Dualist system, EU law empowered by this article
Article 2 of Italian Constituzione
Scope of Supremacy in Italy - accepted in first case, and need for it to be applied directly accepted in second
Frontini
Granital
Competence of EU in Italy: Constitutional Court confirmed that it would continue to review the exercise of power by “organs of the EEC”
Frontini
