Supremacy of EU Law Flashcards
What is meant by supremacy?
Who decides whether a particular rule will take precedence, may also be known as the primacy of EU law
* Court of Justice takes a functionalist approach to this, EU law would not be able to function and develop if it was not supreme and this would impact the common market and harmonisation
What was said about supremacy in the early cases?
Van Gend En Loos
* If a national norm is in the way then this must give way and be disapplied in the case for EU law to be effective
Costa v ENEL
* Treaty has created its own legal system which member states have incorporated into their own system and are bound to apply
* The obligations undertaken by the Treaty would be merely contingent if they could be called into question by subsequent legislative acts of the member states
* Transfer to the community legal system carries with it a permanent limitation of sovereign rights
How did the Court of Justice subsequently develop the rules on supremacy?
Internationale Handelsgesellschaft: The legal status of a conflicting norm is not relevant, not even a fundamental rule of a national constitution could be invoked to challenge supremacy
Simmenthal: Supremacy applies irrespective of whether the national law pre or post-dates EU law, and any court can apply the principle of supremacy even if national law would only allow a constitutional court to consider a principle
IN.CO.GE’90: Simmenthal does not require the national court to annul the national law that conflicts but instead they should refuse to apply it
What does Declaration 17 in the Lisbon Treaty say and what is the significance of this?
‘The treaties and law adopted by the Union have primacy over the law on member states, under conditions laid down by the case law’
* The original draft for an EU constitution created a provision for supremacy
* Inclusion of this provision was a worry that not having one would make people think the playing field had changed
* EU attempting to cover their back with regards to supremacy in the Lisbon Treaty
What is the argument of constitutional pluralism?
MacCormick: The answer to fundamental constitutional conflict lies in politics rather than law
* There are interacting systems, one of which constitutes in its own context and over the range of relevant topics a source of valid law superior to other sources
* No one system is superior to the other in all cases and therefore there is no clear heirarchy to follow
What are some of the arguments against constitutional pluralism?
Cruz
* If the law is only plural because the society and political community which produces it is plural then the term has no distinct meaning
* There are practical problems encountered by the union to command general compliance
What is the basis for supremacy in Germany?
Article 23.1 Basic Law (Constitution)
* Federal Court seems to pay attention to the functionalist argument given in the Costa case
What case can be used to demonstrate the acceptance of supremacy in Germany?
Honeywell
* Law of the EU can only develop if it supplants contrary Member State law
* Union law could not exist as a legal community if the uniform effectiveness were not safeguarded in the Member States
What did the two Handelsgesellschaft cases say about the supremacy of EU law in Germany in relation to fundamental rights?
Known as Solange decisions (‘so long as’)
* Solange I: In the case of a conflict between community law and constitutional fundamental rights the latter prevails
* Solange II: So long as EU law ensures protection of rights that is sufficiently similar to the constitution, the Federal Constitutional Court will not review the applicability of such measures
What cases demonstrate the issue of ultra vires review in Germany?
Brunner v The European Treaty:
* Germanys acceptance of EU law supremacy is conditional
* German court asserted its jurisdiction to review the acts of European institutions to ensure that they remained within the limits of their power
Honeywell:
* If member states were to completely forgo ultra vires review, disposal of the treaty basis would be transferred to the union bodies alone
* The Court is empowered and obligied to review acts of EU bodies on what basis they take place
* Makes such claim difficult, CJEU must be afforded the opportunity to rule on the issue, claimant must then show the excess of power was manifestly in violation of EU competence
What was the significance of the PSPP / Weiss case?
- German Court found the European Central Bank’s Public Sector Purchase Programme (PSPP) was partially unconstitutional
- The CJEU had ruled in 2018 that the PSPP did not violate the ECB’s mandate, but the Constitutional Court ruled this to be ultra vires
- Constitutional Court found that the Federal Government violated Basic Law by failing to take steps challenging that the ECB neither assessed nor substantiated that these measures satisfy proportionality
- Decision left open a door to the ECB by saying that the Bundesbank would participate in PSPP if there was a substained proportionality assessment within 3 months
What was the outcome of the PSPP / Weiss case?
- The ECB adopted two decisions of PSPP’s proportionality and made relevant documents available to the German Finance Minister
- Broad parlimentary majority then declared the assessment to satisfy the judgement
PSPP II
* 2 BvR 1651/15, held the relevant German institutions could continue to participate in ECB programs, incluing PSPP
* Held that even if the applicants had been declared admissable they would have been unfounded because the follow up measures taken by Federal bodies did not fall so obviously short of the judgement that they amounted to esssentially complete inaction
* Not for the court in present case whether the proportionality assessment satisfies the substantive requirements derived from Art 5 TFEU
What happened in the Ajos case?
- Danish case, concerned a directive relating to discrimination based on age
- Since the case of Mangold, discrimination on age is a general principle of EU law and can therefore be effective between private parties
- The Danish Constitutional Court did not accept this decision since the act that gave supremacy to EU law in Denmark did not allow general principles to be part of Danish law
Are the PSPP and Ajos decisions actually that big of a threat for the supremacy debate?
PSPP:
* Good ground of review from the view of constitutional pluralism, a more trivial matter still respecting the decisions and power of ECJ
* Gave the bank a way out, was not a complete rejection of the law
* Kind of competence review could happen anywhere in the EU
Ajos:
* Decision could not be reconciled with EU law
* However peculiar to the facts and circumstances of Denmark
How does Mattias Wendel see the PSPP saga?
The conflict is a (poorly articulated) expression of the pluralist constitutional architecture of the EU
* BVerfG did not sufficiently respect core elements of co-operative constitutional pluralism, including principles which it is bound by under German constitutional law
* Underlying conflict must be channelled through appropriate procedures and continuing dialogue
