SUPREMACY AND LEGAL EFFECT

Question 1

Define direct effect

Answer 1

Ability to invoke EU law before a national court

Does not have to be domestically enacted (automatic)

Question 2

Define indirect effect

Answer 2

MS obligation to interpret national law consistently with EU law

Question 3

Define supremacy

Answer 3

EU law takes priority over national law

Question 4

Which matters has the ECJ positioned itself as ‘ultimate orbiter’ of?

Answer 4

Scope, validity and interpretation of all questions on EU law

Question 5

What view does the ECJ take on supremacy?

Answer 5

Although not mentioned in any treaty (only the PRIMACY of EU law was mentioned) they hold themselves supreme

It extends no further than scope MS have chosen to give them

The ‘new legal order’ can only be effective if the singular ECJ authoritatively implements laws

Question 6

Which 2 cases illustrate EU law as supreme

Answer 6

VAN GEND EN LOOS

COSTA

Question 7

Case facts VAN GEND EN LOOS

Answer 7

• Dutch company imported chemical from Germany, who disagreed with tax imposed by Dutch inland Revenue
• Claim tax had been increased by changing classification of good, contrary to A12 EEC (repealed, this is now covered by A30 TFEU): refrain from increasing those [taxes] which already apply
• HELD : Dutch could not do this, as EU law imposes not just obligations but also rights that become part of a MS’s legal heritage

Question 8

Case facts COSTA

Answer 8

• Concerned with legislation that was contrary to EEC, and adopted after Italy joined
• Question of whether subsequent legislation ‘encapsulating a clear expression of the will of the national legislator, may unilaterally derogate from Treaty obligations’

HELD: no they can’t ‘member states have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves’
= a claim for absolute primacy -> all EU law trumps all national law

Question 9

3 aspects of the PRIMACY principle

Answer 9

1. Primacy of EU laws over national laws means primacy of application in the individual case. It doesn’t affect the validity of national law provision in question.
2. Primacy in application (according to courts) is unreserved and absolute, particularly in respect to internal MS Acts
3. Primacy of EU law empowers all judges, from court of first instance to supreme, to set aside incompatible laws

Question 10

ECJs arguments for supremacy

Answer 10

• A19 TEU enables them to determine all issues surrounding interpretation and enforcement of Treaties
• A263 TFEU provides courts exclusive jurisdiction, including power to review legality of legislative acts/all other acts of EU institutions
• Uniform application of this ‘new legal order’ can only be achieved by one court authoritatively implementing law throughout the EU
• This must be ECJ not MS domestic courts as their jurisdiction applies only to their state, not whole EU = ensures uniformity

Question 11

What view do MSs take on supremacy?

Answer 11

• Always been problematic for UK, as breaches constitutional doctrine of PS
• LAWS LJ expressed in THOBURN that the rapport between the UK and EU should be determined by the common law in light of any statutes Parliament enacted -> not ECJ
• Germany : only accepted supremacy conditionally, the EU must not breach the extent of their powers (BRUNER)

Question 12

Which 2 cases demonstrate UK relationship with EU supremacy?

Answer 12

FACTORTAME

THOBURN

Question 13

Which 2 cases highlight Germany’s relationship with EU supremacy?

Answer 13

GERMANY - LISBON JUDGEMENT

BRUNER

Question 14

Key point of GL JUDGEMENT

Answer 14

Germany’s compliance with EU supremacy was conditional on Parliamentary assent, and that their courts had jurisdiction to assess:
(I) Boundaries in relation to scope of powers conferred on the Community are not overreached
(II) The fundamental rights assured by the German constitution are not infringed

Question 15

What are the 2 qualifications to full national procedural autonomy?

Answer 15

1. EQUIVALENCE : prohibition of discrimination against EU law
2. EFFECTIVENESS: enforcement of EU law should not be made deliberately difficult

Question 16

Which treaty is a primary source of EU law known as a ‘framework treaty’?

Answer 16

Treaty for the Functioning of the European Union (TFEU)

Question 17

What is meant by framework treaty ?

Answer 17

Sets out broad principles and objectives

Also allows institutions to create secondary legislation to further these aims

Question 18

What types of secondary legislation are authorised in A228 TFEU?

Answer 18

1. REGULATIONS - have direct effect
2. DIRECTIVES - indirect effect, bind the MS but only by the result to be achieved
3. DECISIONS - binding but only to whom they’re addressed
4. RECOMMENDATIONS/OPINIONS - not binding

Question 19

2 theories on direct effect

Answer 19

MONISM

DUALISM

Question 20

Describe monism

Answer 20

No need for incorporating measures

EU law automatically accepted as law

Question 21

Describe dualism

Answer 21

Law must be incorporated by domestic statue (in the UK this is the ECA 1972)
Can only look to the Treaties if Parliament draws attention to them
i.e. The Immigration Act is referring to the Refugee Convention

Question 22

Main argument between monism and dualism

Answer 22

What is the point in dualism making these distinctions when Parliament has already ratified the Treaties

Question 23

What are the conditions for a Treaty Provision to have direct effect?

Answer 23

Clear
Unconditional (not allowing any reservations by MSs)
Not dependent on subsequent further implementation measures to be adopted by MS/Community

Question 24

Which case were these conditions established in?

Answer 24

VAN GEN DEN LOOS

Question 25

What is the standard test for direct effect?

Answer 25

(I) unconditional
(II) sufficiently precise
(III) the MS in question failed to implement the directive in subscribed period OR failed to implement directive correctly

Question 26

The 2 functions of directly effective powers?

Answer 26

1. May create a new rule which didn’t exist in national law before, which must then be applied
2. Along with primacy of EU law it may exclude the application of an existing but contrary national law