Week 5

Question 1

What is lecture 5 about?

Answer 1

Autonomous character of EU law: primacy of EU law, the principle of 3 consistent interpretation, direct effect of EU law. Case study.

Question 2

What is the autonomous character of EU law?

Answer 2

• 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

Question 3

What is the principle of primacy of EU Law?

Answer 3

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.

Question 4

What it is the principle of 3 consistent interpretation?

Answer 4

1

Question 5

What is the principle of direct effect of EU law?

Answer 5

1

Question 6

The principle of the primacy of EU law:

Answer 6

imposes an obligation on Member State authorities to disregard the application of a provision of a national law contrary to EU law

Question 7

The court of a Member State, if it finds that a national law is incompatible with EU law, should:

Answer 7

omit the norm of national law when deciding

Question 8

Case Costa v ENEL

Answer 8

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.

Question 9

What is the application of direct effect on the EU regulation?

Answer 9

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;

Question 10

What is the application of direct effect on the EU directive?

Answer 10

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);

Question 11

What is the application of direct effect on the decision?

Answer 11

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);

Question 12

What is the application of direct effect on the international agreements?

Answer 12

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;

Question 13

What is the application of direct effect on the opinions and recommendations?

Answer 13

opinions and recommendations: opinions and recommendations do not have legal binding force. Consequently, they are not provided with direct effect.

Question 14

What are two varieties of direct effect?

Answer 14

• vertical direct effect

- horizontal direct effect

Question 15

What is vertical direct effect?

Answer 15

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;

Question 16

What it is the horizontal direct effect?

Answer 16

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.

Question 17

What are the main features of the EU legal order as autonomous legal order?

Answer 17

are supremacy and the priority of EU law towards national law in conflict, direct application and direct effect of EU law.

Question 18

1

Answer 18

The judgments of European Court of Justice are of particular importance and are perceived as fundamental for the EU law.

Question 19

What it is preliminary ruling procedure?

Answer 19

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.

Question 20

What is difference between primacy and supremacy ?

Answer 20

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

Question 21

What is the principle of consistent interpretation?

Answer 21

The obligation to interpret national law inconsistency with EU law and an obligation to provide for full effectiveness of EU law.

Question 22

What did the court held in the judgement Costa v ENEL?

Answer 22

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.

Question 23

Why is the EU legal order considered to be an autonomous legal order?

Answer 23

• 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

Question 24

Why is the EU legal order distincts from ordinary international treaties?

Answer 24

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.

Question 25

What was confirmed in the judgement of 1989 Freteli Constanzo?

Answer 25

It was confirmed that also national administrative authorities are obliged to apply EU law.

Question 26

Was there an attempt to include the principle of primacy in the treaties?

Answer 26

Yes. It was in a draft establishing a Constitution for Europe of 18 July 2003.

Question 27

When do we consider the primacy of EU law?

Answer 27

In the process of application of EU law when we face a conflict between EU and national law.

Question 28

Does the rule lex posterior derogate legit prior apply in a conflict of EU and national law?

Answer 28

No.

Question 29

What does the primary principle require from the national authority?

Answer 29

To disapply the national law in conflict with EU law.

Question 30

What is the most characteristic feature of the EU as a supranational organization?

Answer 30

The autonomy of its legal order.

Question 31

What is article 267. of the Treaty on the Functioning of the European Union?

Answer 31

The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or 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 a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.
Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.

Question 32

Explain the preliminary ruling procedure.

Answer 32

..

Question 33

What do legal systems of the member states become after accession to the EU?

Answer 33

Multicentric legal systems.

Question 34

According to which judgement are national administrative authorities obliged to apply EU law?

Answer 34

Freteli Constanzo, 1989.

Question 35

To what treaty has the declaration of primacy been attached?

Answer 35

To the Lisbon Treaty.

Question 36

What did the court held in The NationaleHandelsgesellschaft judgement in 1917.?

Answer 36

That the law stemming from the treaty as an independent source of law cannot, because of its very nature, be overridden by rules of national law.

Question 37

Why can’t the law stemming from the treaty be overridden by rules of national law?

Answer 37

Any recognition that national legislative measures which encroach upon the field within which the community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect, would amount to a corresponding denial of the effectiveness of obligations undertake unconditionally and irrevocably by the member states pursuant to the treaty and would thus imperil the very foundations of the community.

Question 38

Is there autonomy of EU legal order without primacy?

Answer 38

No.

Question 39

Explain the scope of the principle of primacy that applies to national law.

Answer 39

The EU law in case of conflict takes precedence over the norms of all normative acts, both legislative as well as of executive nature. It refers to normative acts and acts issued in individual cases; It also applies in conflict with administrative decisions. It clearly follows from the jurisprudence of the Court of Justice of the EU that it applies also to constitutional provisions of the national law. The primacy principle requires the national authority to disapply the national law in conflict with EU law.

Question 40

Explain the primacy of EU law from the perspective of national constitutional tribunals.

Answer 40

It must be stressed that in the light of the jurisprudence of the Court of Justice of the European Union, the EU law takes precedence over any national law not excluding provisions of constitutional law. This is at face value in conflict with the provisions of the Constitutions at least some of the member states. The principle of the primacy of EU law in relation to national law is strongly exposed by the case law of the Court of Justice of the European Union.

Question 41

Explain the situation of hypothetical collision between the EU legal order and the Polish legal system.

Answer 41

According to article 8 of the Constitution of the Republic of Poland of 1997, the Constitution is the highest normative act in the territory of the Republic of Poland. The principle of the primacy of EU law is without doubts and expression of striving to guarantee the uniform application and enforcement of EU law. However, it does not on on an exclusive basis determine the final decisions taken by sovereign member states in the situation of hypothetical collision between the EU legal order and constitutional regulation in the Polish legal system. Decisions of this type should always be made taking into account the content of article 8 of the Constitution . It must be observed that in case of conflict, the Constitutional Tribunal does not exclude the solution to solve the conflict in favor of EU law by amendment of the Constitution.

Question 42

Name an example of a collision of EU law with German National Constitutional law in practice

Answer 42

One example was a famous German case regarding German electrician notable for filing a lawsuit against Germany’s armed forces before a national court. The national court asked the Court of Justice for a preliminary ruling. It followed from the judgement of the Court of Justice that German law not allowing women to join the armed forces was in conflict with EU law.

Question 43

Name an example of a collision of EU law with Polish National Constitutional law in practice.

Answer 43

One example was the problem in Poland with the implementation of the European Arrest Warrant Framework Decision. The Polish constitution prohibited to extradite Polish citizens which were incompatible with EU law on European Arrest Warrant. The Polish constitution has been amended accordingly.

Question 44

Name an example of a collision of EU law with Italian National Constitutional law in practice.

Answer 44

The Taricco case; The constitutional court in Italy asked the Court of Justice about the extent to which the national courts are required to fulfill the obligation identified by the court in the previous judgement of the year of 2015 Tarrico and others. In that judgement, the Court of Justice found that the court asserted a fraud in relation to value added tax is liable to constitute serious fraud affecting the financial interests of the EU. The Court found the conflict between national criminal law rooted also in national and Italian constitutional law and an EU law.

Question 45

What is article 325. of the Treaty on the Functioning of the EU.

Answer 45

1. The Union and the Member States shall counter fraud and any other illegal activities affecting the financial interests of the Union through measures to be taken in accordance with this Article, which shall act as a deterrent and be such as to afford effective protection in the Member States, and in all the Union’s institutions, bodies, offices and agencies.
2. Member States shall take the same measures to counter fraud affecting the financial interests of the Union as they take to counter fraud affecting their own financial interests.
3. Without prejudice to other provisions of the Treaties, the Member States shall coordinate their action aimed at protecting the financial interests of the Union against fraud. To this end they shall organise, together with the Commission, close and regular cooperation between the competent authorities.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Court of Auditors, shall adopt the necessary measures in the fields of the prevention of and fight against fraud affecting the financial interests of the Union with a view to affording effective and equivalent protection in the Member States and in all the Union’s institutions, bodies, offices and agencies.
5. The Commission, in cooperation with Member States, shall each year submit to the European Parliament and to the Council a report on the measures taken for the implementation of this Article.

Question 46

What is article 225. of the Treaty on the Functioning of the EU.

Answer 46

The European Parliament may, acting by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it shall inform the European Parliament of the reasons.