Week 5 Flashcards
Sources of EU law. Primary law. Secondary law. International treaties and 3 their effect in EU law with particular regard to intellectual property (e.g. TRIPS in EU legal order).
What is lecture 5 about?
Autonomous character of EU law: primacy of EU law, the principle of 3 consistent interpretation, direct effect of EU law. Case study.
What is the autonomous character of EU law?
- it is distinct from international law.
- it’s of a specific nature.
- it has become an integral part of the legal order of the member states.
- it must be applied by their courts.
‘By contrast with ordinary international treaties , the EEC Treaty has created its own legal system, which , on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply
What is the principle of primacy of EU Law?
is an EU law principle that when there is conflict between European law and the law of Member States, European law prevails; the norms of national law have to be set aside. This principle was developed by the European Court of Justice, and, as interpreted by that court, it means that any norms of European law always take precedence over any norms of national law, including the constitutions of member states. Although national courts generally accept the principle in practice, most of them disagree with this extreme interpretation and reserve the right, in principle, to review the constitutionality of European law under national constitutional law.
What it is the principle of 3 consistent interpretation?
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What is the principle of direct effect of EU law?
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The principle of the primacy of EU law:
imposes an obligation on Member State authorities to disregard the application of a provision of a national law contrary to EU law
The court of a Member State, if it finds that a national law is incompatible with EU law, should:
omit the norm of national law when deciding
Case Costa v ENEL
by entering into EC Treaty, MS had limited their sovereign rights and that Community law could not be overridden by domestic legal provisions.
Decision:
the court held in the judgment that by contrast with ordinary international treaties the community treaties has created its own legal system which on the entry into force of the treaty became an integral part of the legal systems of the member states. And which they courts are bound to apply.
What is the application of direct effect on the EU regulation?
the regulation: regulations always have direct effect. In effect, Article 288 of the Treaty on the Functioning of the EU specifies that regulations are directly applicable in EU countries. The Court of Justice clarifies in the judgement of Politi of 14 December 1971 that this is a complete direct effect;
What is the application of direct effect on the EU directive?
the directive: the directive is an act addressed to EU countries and must be transposed by them into their national laws. However, in certain cases the Court of Justice recognises the direct effect of directives in order to protect the rights of individuals. Therefore, the Court laid down in its case-law that a directive has direct effect when its provisions are unconditional and sufficiently clear and precise and when the EU country has not transposed the directive by the deadline (Judgement of 4 December 1974, Van Duyn). However, it can only have direct vertical effect; EU countries are obliged to implement directives but directives may not be cited by an EU country against an individual (Judgement of 5 April 1979, Ratti);
What is the application of direct effect on the decision?
the decision: decisions may have direct effect when they refer to an EU country as the addressee. The Court of Justice therefore recognises only a direct vertical effect (Judgement 10 November 1992, Hansa Fleisch);
What is the application of direct effect on the international agreements?
international agreements: in the Demirel Judgement of 30 September 1987, the Court of Justice recognised the direct effect of certain agreements in accordance with the same criteria identified in the Judgement Van Gend en Loos;
What is the application of direct effect on the opinions and recommendations?
opinions and recommendations: opinions and recommendations do not have legal binding force. Consequently, they are not provided with direct effect.
What are two varieties of direct effect?
- vertical direct effect
- horizontal direct effect
What is vertical direct effect?
Vertical direct effect concerns the relationship between EU law and national law – specifically, the state’s obligation to ensure its observance and its compatibility with EU law, thereby enabling citizens to rely on it in actions against the state or against public bodies;
What it is the horizontal direct effect?
Horizontal direct effect concerns the relationship between individuals (including companies). If a certain provision of EU law is horizontally directly effective, then citizens are able to rely on it in actions against each other.
What are the main features of the EU legal order as autonomous legal order?
are supremacy and the priority of EU law towards national law in conflict, direct application and direct effect of EU law.
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The judgments of European Court of Justice are of particular importance and are perceived as fundamental for the EU law.
What it is preliminary ruling procedure?
is based on Article 267 on the Treaty on the Functioning of the European Union (TFEU).
is used when a national court or tribunal refers a question of EU law to the European Court of Justice (ECJ) for a preliminary ruling so as to enable the national court, on receiving that ruling, to decide the case before it.
The Court of Justice shall have jurisdiction to give preliminary rulings concerning interpretation of the treaties and the validity and interpretation of acts of the institutions, bodies, offices and aged agencies of the Union where such a question is raised before any court or tribunal of a member state that court or tribunal may if it considers that the decision on the question is necessary to enable it to give a judgment, request the court to give a ruling thereon.
It follows from the foregoing that EU court is not settling the dispute that has a reason before the national court but it exclusively gives an interpretation of EU law.
What is difference between primacy and supremacy ?
The primacy of EU law we do consider in the process of application of EU law when we face a conflict between EU and national law, whereas we refer rather to supremacy as an abstract concept of a relation between EU and national law. Sometimes both concepts are present in one judgment at the same time for example in the Court of Justice the judgment the court referred rather to supremacy when it held that the EU provisions are an integral part and take precedence in the legal order applicable in the territory of each of the member states and subsequently in the same judgment it referred rather to primacy when it held
What is the principle of consistent interpretation?
The obligation to interpret national law inconsistency with EU law and an obligation to provide for full effectiveness of EU law.
What did the court held in the judgement Costa v ENEL?
The court held in the judgement that by contrast with ordinary international treaties, the community treaties has created its own legal system which on the entry into force of the treaty became an integral part of the legal systems of the member states.
Why is the EU legal order considered to be an autonomous legal order?
- it is distinct from international law
- it’s of a specific nature
- it has become an integral part of the legal order of the member states
- it must be applied by their courts
Why is the EU legal order distincts from ordinary international treaties?
Because the Treaty on EU operates the same way in all the member states and therefore, it must be of specific character. The member states have limited their sovereign rights within limited fields and created a body of law which binds both their nationals and themselves.
