Supremacy

Question 1

Supremacy Established in this case

Answer 1

Flaminico Costa v Enel

Question 2

Purposive:

Answer 2

States have transferred sovereignty via the treaties, intending to establish a new legal order

Question 3

Consistent

Answer 3

If domestic law takes precedence, then EU law will become inconsistent between member states, defeating purpose

Question 4

Contextual

Answer 4

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.

Question 5

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.

Answer 5

Internationale Handelsgesellschaft

Question 6

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

Answer 6

Simmenthal

Question 7

UK was required to disapply domestic law precluding a grant of interim relief, since it was contrary to Community law

Answer 7

Factortame

Question 8

Some countries accept the primacy of international treaties as part of their constitutional order, meaning that ECJ decisions have already been implicitly assimilated

Answer 8

Netherlands and Luxembourg

Question 9

EU law is empowered in Germany by this, supremacy flows from domestic law, rather than Costa

Answer 9

Article 23 of the Grundgesetz

Question 10

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

Answer 10

Solange I

Question 11

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

Answer 11

Solange II.

Question 12

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

Answer 12

Brunner

Question 13

BVerfG held that it would not easily conclude that EU had acted beyond it competence. Relaxation of ultra vires lock

Answer 13

Honeywell

Question 14

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.

Answer 14

Done after Lisbon Treaty

Question 15

Source of Sumpremacy in UK law per dualist legal system.

Answer 15

ECA 1972

Question 16

Scope of supremacy in UK - UK has flexibility through developing concept of constitutional statute to defeat doctrine of implied repeal

Answer 16

Thoburn v Sunderland City Council - Wade calls this a “technical legal revolution” as little existing justification for it.

Question 17

Scope of competence in UK - important provisions in this act

Answer 17

European Union Act 2011

Question 18

“Sovereignty Clause” - EU stresses that EU law is recognised only by virtue of ECA 1972, as an assertion of Parliamentary sovereignty.

Answer 18

s. 18 European Union Act 2011, but as Gordon and Dougan argue, this is just confirmation of the status quo.

Question 19

Referenda lock: this act makes provision for various locks in relation to future power to the EU.

Answer 19

European Union Act 2011

Question 20

In dicta, Lord Mance said English court would only toleration of clearly identified limits of EU law.

Answer 20

Pham

Question 21

Lord Carnwath thought that ECJ decisions should not be read by national court in way that called identity of national constitutional order into question

Answer 21

HS2

Question 22

Source of Supremacy in Italy - Dualist system, EU law empowered by this article

Answer 22

Article 2 of Italian Constituzione

Question 23

Scope of Supremacy in Italy - accepted in first case, and need for it to be applied directly accepted in second

Answer 23

Frontini

Granital

Question 24

Competence of EU in Italy: Constitutional Court confirmed that it would continue to review the exercise of power by “organs of the EEC”

Answer 24

Frontini

Question 25

Italian Constitutional Court suffested that EU law would not be applied if it contravened a fundamental principle of Italian constitution

Answer 25

Fragd

Question 26

Competence of EU in Poland:

Answer 26

In 2005, Constitutional Court held that a collision between Community law and the polish constitution could not be resovled by simply “assuming the supremacy of a Community norm over a constitutional norm”.

Question 27

Competence of EU in Czech Republic

Answer 27

Decision of ECJ ruled as ultra vires. So rare, tat like sighing a yeti per Zbiral.