The Supremacy of EU Law Flashcards
What has supremacy become?
The most entrenched; and
Probably the least contested of EU principles
What are the reasons for the doctrine of supremacy?
- It is essential that EU law should be uniformly applied
- Without supremacy there could be no supranational context for the institutions, which would have no effective power.
So, the real justifications for supremacy are:
- The prevention of questions of the validity of EU law in Member states
- The doctrine of ‘pre-emption’:
1. Prevention of alternative legal interpretations of EU law by Member states courts
2. Prevent of enactment of conflicting legislation by member states
- Ultimately, the most logical basis for supremacy is the requirement of full integration.
- In any case, economic integration would be virtually impossible if member states could deny and defy the supranational powers of the institutions.
The development of supremacy
- The doctrine of supremacy of EU law was not something initially laid down in the treaties.
- There was little suggestion that the member states were signing up to anything other than a detailed and comprehensive, international treaty.
- However, the creation of the ECJ with its powers to guide on the interpretation of EU law ensured that EU law soon developed into a distinct legal order.
- The earliest definition of supremacy is in 26/62 Van Gend en Loos v The Commission:
o ‘The [EU] constitutes a new legal order in international law, for whose benefits the states have limited their sovereign rights, albeit within limited fields’.
Development: what are the cases which established supremacy?
- There were certain seminal cases which clearly established the supremacy of EU law over the laws of member states.
- Van Gend was the first:
o The ruling in this case stated that national courts had limited their sovereignty by joining the EU in the fields included in the treaty and that individuals could enforce their community rights in the national courts, even in the face of conflicting national law.
o The ECJ held that the community constituted a new legal order.
o This legal order applied not only to member states, but also to citizens of those member states. - The concept of enforceable rights conferred by the treaties upon individuals is now known as the principle of direct effect.
Development: Costa case
- In 1964, the court built further on its decision in Van Gend by clarifying the principle of supremacy.
- In Costa v ENEL:
o The ECJ decided that community law too precedence over national law, whether or not the law had been passed before or after the provision of the community law.
o It stated:
‘The transfer, by member states from their national legal orders in favour of the community legal order of the rights and obligations arising from the treaty, carries with it a clear limitation of their sovereign rights upon which the subsequent unilateral law, incompatible with the aims of the community, cannot prevail’.
o The ECJ concluded that if EU law could be varied in deference to member state law, the attainment of the objectives of the treaty would be under threat.
Development: Internationale Handelsgesellchaft
o the ECJ, by clarifying the point alluded to in Costa, stated that ‘the law born from the treaty [cannot] have the courts opposing to its rules of national law of any nature whatsoever.
o In other words, no element of national law, no matter how fundamental, could take primacy over any element of Community Law, irrespective of how minor that may be.
Development: Simmenthal II
Matters were taken even further again in Simmenthal II 1978:
- The court of justice ruled that any national court, when called upon to apply the provisions of Community law, must do so and must do so in full.
- It summed up the essence of supremacy of EU law when it stated:
‘Every national court must, in a case within its jurisdiction, apply community law in its entirety and protect rights which it confers on individuals and must accordingly set aside any provisions of national law which may conflict with it, whether prior or subsequent to the community rule’.
Development: What do the cases demonstrate?
- These cases demonstrate how the ECJ envisages the new legal order created by the treaties.
- It clearly saw the new legal order as an independent legal system, the laws of which were to take precedence over national laws and were to be applied in full.
- The supremacy of EU law has been restated in numerous cases and has also found expression in national case law.
What is the supremacy of EU law further supported by?
the doctrines of direct effect, indirect effect, and state liability
What is direct applicability?
- Direct applicability provides that certain EU legal measures apply automatically in the Member States.
- In Ireland this happens by virtue of the European Communities Act 1972 (as amended).
- Treaties and regulations therefore apply in full and without any further action by member states, reinforcing the fact that EU law is supreme.
- Direct effect allows citizens of the EU to rely on their EU rights directly in certain circumstances, when the measure is directly applicable, or, in the case of directives, where certain conditions are fulfilled.
What is indirect effect?
- Indirect effect, as a principle of interpretation, stipulates that all national law must be interpreted in line with EU provisions wherever possible.
- Indirect effect therefore gives expression to the supremacy of EU law in the tools of interpretation used in the member states.
- The Factortame cases further built on the principle laid down in Simmenthal II by stating that all provisions of EU law must be enacted as efficiently as possible, and that national law must be suspended where it is incompatible with community law.
- The cases also built on the idea that citizens were important actors in the new legal order by allowing action for damages against member states as in Francovich 1991 ad Factortame III 1996
What is state liability?
- State liability then is the final piece in the puzzle representing the supremacy of EU law over national law across member states.
- Such application is of course aided by the preliminary reference procedure under Article 267 TFEU.
The doctrine of supremacy of EU law had been developed almost exclusively by case law of the ECJ
- There were suggestions that Art10 EC (the duty of loyalty) hinted at member state obligation to apply EU law in full, and over and above their national provisions.
- However, the treaties themselves make no explicit reference to supremacy over all national law.
- This changed with the ratification of the Lisbon treaty.
- An Annex to this treaty contains a declaration to the effect that EU law has primacy over national law (Declaration 17).
- Interestingly, the failed Constitutional Treaty contained such a statement in the body of the treaty, lending the full force of EU law (Articles 1-6)
- The Lisbon treaty Annex is merely a political statement and as such its legal force is unclear.
- Given the ECJ jurisprudence however, it seems unlikely that there is any doubt over the application of the doctrine and indeed it seems merely to codify what the ECJ has clearly established.
Conclusion of Supremacy
In conclusion, it is clear that the doctrine of supremacy of EU law is one which has been developed by the ECJ, and that without the court’s involvement it is likely that the doctrine would have developed at a much slower pace in the face of much stronger opposition.
