Supremacy

Question 1

What was the main finding and 4 justifications for this in van Gend en Loos; Costa v ENEL

Answer 1

EU constitutes new legal order.

Justification:
loyal cooperation, spirit of the Treaty, uniformity, effectiveness of EU law

Question 2

Internationale Handelsgesselschaft

Answer 2

EU law takes precedence even over fundamental constitutional national law.

Question 3

Simmenthal

Answer 3

Prior or subsequent national law to be set aside

Question 4

Factortame 1990

Answer 4

Procedural national rules set aside as well

Question 5

CIF (both principles)

Answer 5

Principle 1: Duty to disapply national legislation applies to all organs of State, including administratve.

Principle 2: Because of legal certainty, reliance on national law before it was definitively changed to accord with EU law cannot expose to sanction

Question 6

Commission v France

Answer 6

Duty not to maintain conflicting national rules, for the sake of legal certainty.

Question 7

IN.CO.GE

Answer 7

Limit to Supremacy

Disapplying national law does not destroy it. Can continue to apply in situations not covered by EU law.

Question 8

Foto-Frost

Answer 8

Only national courts can invalidate national law and likewise for EU law

Question 9

Kapferer

Answer 9

National law conferring finality on a decision (res judicata) need not be reviewed and set aside by national court, even if contrary to EU law.

Question 10

Treaty provisions setting out supremacy

Answer 10

Failed Constitutional Treaty - “primacy”

Treaty of Lisbon - “primacy”

Question 11

What is the main obstacle to EU law supremacy in UK?

Answer 11

Parliamentary supremacy.

Question 12

What are the 4 main effects of European Communities Act 1972

Answer 12

Direct effect of EU law

Delegated legislation can be created for implementing EU law

Interpretive obligation in line with provisions of European Communities Act

Must decide all questions concerning EU law in accordance with CJEU case law

Question 13

Effect of European Union Act 2011

Answer 13

Constrains future Treaty amendments extending EU competencies.

Must be approved by certain UK bodies, such as Act of Parliament, referendum, or both

s.18 - affirming that EU law depends on statutory recognition

Question 14

Harmonious construction saga (4 cases)

Answer 14

Macarthys v Smith - Lord Denning took Parliament to have the intention of requiring harmonious construction

Garland v British Rail - accepted Lord Denning’s dissenting judgement in Macarthys. Where apparently conflicting national law could be read in conformity, it must be.

Duke - initially only directively effective provisions

Litster - eventually non-directly effective too.

Question 15

Factortame No 2 (2 duties of UK courts)

Answer 15

Because of Parliament’s sovereign will, UK courts have duty to (1) enforce directly effective EU law; (2) declare primary legislation incompatible with EU law

Question 16

EOC

Answer 16

Declarations of incompatibility can be established through judicial review.

Question 17

Thoburn; HS2; Miller 2017

Answer 17

Thoburn (obiter, high court!) Common law created exceptions to doctrine of implied repeal.

HS2 confirms that constitutional statutes are immune from implied repeal, which it indicates was not clear in Thoburn. and listed examples of “constitutional statutes”: Magna Carta 1215; Bill of Rights 1689; Human Rights Act 1998; Constitutional Reform and Governance Act 2010

Miller 2017 - formally recognizes Thoburn and makes it binding.

Question 18

Protocol on the application of EU Charter on Fundamental Rights to Poland & the UK

Answer 18

prevents Charter from ‘creating justiciable rights applicable to Poland or the UK except in so far as Poland or the UK has provided for such rights in its national law.”

Question 19

HP Bulmer v Bollinger No 2 per Lord Denning

Answer 19

“like an incoming tide, cannot be held back.” HoL swim with the tide.

Question 20

Where does Germany prescribe supremacy of EU law?

Answer 20

In its Constitution (Basic Law)

Question 21

Solange I

Answer 21

Transfer of state power under Article 24 does not allow amendments to the basic structure of the Constitution

Supremacy of EU law made conditional on protection of Germany’s fundamental rights.

Question 22

What was deficient in Solange I’s principle?

Answer 22

No mechanism for determining breaches of fundamental rights.

Question 23

Solange II

Answer 23

Introduced mechanism for reviewing compliance with fundamental rights -

EU must “generally” ensure protection which is “substantially similar” to the protection required by German Constitution.

Amended Article 23 that incorporates this test.

Plus FCC ‘reserve Power’

Question 24

Maastricht judgement

Answer 24

FCC jurisdiction to assess breach of EU conferred powers based on:

Ultra vires review – powers conferred on EU cannot be extended in scope (acting ultra vires) without amendment to Treaties by national Parliament

FCC and ECJ operate in relationship of cooperation.

Question 25

Re Banana Market

Answer 25

Weakened Maastricht -

Reluctance to exercise ‘reserve power’, and complaints could only be brought based based on Solange II’s standards, “generally ensure”; “substantially similar to protection”

Question 26

Lisbon judgement

Answer 26

Stricter constitutional identity review -

Whether EU action infringes the fundamental principles forming the inviolable core of the German Constitution. Wider than just fundamental rights.

Question 27

Honeywell

Answer 27

Summarizes three conditions of acceptance of EU law supremacy:

1. fundamental rights
2. Ultra vires conferred powers
3. constitutional identity

Question 28

List German cases in order

Answer 28

Solange I and II, Maastricht, Banana Market, Lisbon, Honeywell