Supremacy Flashcards
What was the main finding and 4 justifications for this in van Gend en Loos; Costa v ENEL
EU constitutes new legal order.
Justification:
loyal cooperation, spirit of the Treaty, uniformity, effectiveness of EU law
Internationale Handelsgesselschaft
EU law takes precedence even over fundamental constitutional national law.
Simmenthal
Prior or subsequent national law to be set aside
Factortame 1990
Procedural national rules set aside as well
CIF (both principles)
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
Commission v France
Duty not to maintain conflicting national rules, for the sake of legal certainty.
IN.CO.GE
Limit to Supremacy
Disapplying national law does not destroy it. Can continue to apply in situations not covered by EU law.
Foto-Frost
Only national courts can invalidate national law and likewise for EU law
Kapferer
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.
Treaty provisions setting out supremacy
Failed Constitutional Treaty - “primacy”
Treaty of Lisbon - “primacy”
What is the main obstacle to EU law supremacy in UK?
Parliamentary supremacy.
What are the 4 main effects of European Communities Act 1972
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
Effect of European Union Act 2011
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
Harmonious construction saga (4 cases)
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.
Factortame No 2 (2 duties of UK courts)
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
EOC
Declarations of incompatibility can be established through judicial review.
Thoburn; HS2; Miller 2017
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.
Protocol on the application of EU Charter on Fundamental Rights to Poland & the UK
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.”
HP Bulmer v Bollinger No 2 per Lord Denning
“like an incoming tide, cannot be held back.” HoL swim with the tide.
Where does Germany prescribe supremacy of EU law?
In its Constitution (Basic Law)
Solange I
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.
What was deficient in Solange I’s principle?
No mechanism for determining breaches of fundamental rights.
Solange II
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’
Maastricht judgement
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.
Re Banana Market
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”
Lisbon judgement
Stricter constitutional identity review -
Whether EU action infringes the fundamental principles forming the inviolable core of the German Constitution. Wider than just fundamental rights.
Honeywell
Summarizes three conditions of acceptance of EU law supremacy:
- fundamental rights
- Ultra vires conferred powers
- constitutional identity
List German cases in order
Solange I and II, Maastricht, Banana Market, Lisbon, Honeywell
