LAW OF THE EU

1. LAW OF THE EU WEEK 5 SUPREMACY OF EU LAW

2. Supremacy of EU Law • Supremacy or Primacy of EU law (Principle of precedence of Community Law) • Is not stated in the founding treaties but established by the ECJ through its case-law. • It means: • Validity of EU law cannot be assessed by reference to national law • National courts must give immediate effect to directly effective EU law (of whatever rank) in cases before them • National courts should ignore or set aside any national law (of whatever rank) which could prevent the application of EU law

3. Supremacy of EU Law from the Community perspective • Costa v Enel (1964): “IT FOLLOWS FROM ALL THESE OBSERVATIONS THAT THE LAW STEMMING FROM THE TREATY, AN INDEPENDENT SOURCE OF LAW, COULD NOT, BECAUSE OF ITS SPECIAL AND ORIGINAL NATURE, BE OVERRIDDEN BY DOMESTIC LEGAL PROVISIONS, HOWEVER FRAMED, WITHOUT BEING DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE COMMUNITY ITSELF BEING CALLED INTO QUESTION” “THE TRANSFER BY THE STATES FROM THEIR DOMESTIC LEGAL SYSTEM TO THE COMMUNITY LEGAL SYSTEM OF THE RIGHTS AND OBLIGATIONS ARISING UNDER THE TREATY CARRIES WITH IT A PERMANENT LIMITATION OF THEIR SOVEREIGN RIGHTS, AGAINST WHICH A SUBSEQUENT UNILATERAL ACT INCOMPATIBLE WITH THE CONCEPT OF THE COMMUNITY CANNOT PREVAIL “

4. Supremacy of EU Law • In Costa v ENEL: • Community law must be given primacy by national courts over any incompatible national law • Spirit and aims of the Treaty show that it is impossible for the member states to accord primacy to domestic laws • Since the aim is integration and cooperation---it is not possible to achive these aims if one member state can refuse to give effect to Community law • The language in Article 288 would be meaningless if states could challenge the supremacy of Community law by passing subsequent inconsistent legislation • The ECJ used “teleological” rather than “textual” approach in interpretting the Treaties. It underlined the aims and spirit of the Treaties.

5. Supremacy of EU Law • Internationale Handelsgesellschaft (1970) : “Recourse to legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty [...] cannot [...] be overriden by rules of national law, however framed, without being deprived of its character as Community law [...] “[...] therefore the validity of a Community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of a national constitutional structure”

6. Supremacy of Community Law • The constitutionality of EU law cannot be challenged by national constitutional courts. Therefore EU law should prevail over constitutional norms as well.

7. Supremacy of EC Law 3. Simmenthal Case (1978): - Italian authorities argued that national court could not simply refuse to apply a national law which conflicted with Community law---but must first bring the matter before Italian Constitutional Court to have that law declared unconstitutional - The ECJ rejected this approach in Simmenthal and stated that National judge should authomatically refuse to apply any national law which is contrary to EU Law.

8. Supremacy of EU Law • Simmenthal Case (1978): • “Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but - in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States - also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.” (lex posterior)

9. Supremacy of EU Law • Simmenthal Case (1978): • “It follows from the foregoing that every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”

10. Supremacy of EU Law • Simmenthal Case (1978): • “[...]to the effect that a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.” • No need to wait the Parliament or Constitutional Court

11. Supremacy of EU Law • Simmenthal Case (1978): • What if national court have no domestic jurisdiction to question or to set aside national legislative acts? • Message of the ECJ: Even if the Constitutional Court is the only national court empowered to pronounce on the constitutionality of a national law where a conflict between national law and Community law arises before another national court, that court must give immediate effect to the Community law without awaiting the prior ruling of the Constitutional Court. • So the understanding of the ECJ is: Supremacy of EU law is a kind of “automatic precedence” of directly effective Community law over national law

12. Supremacy of EU Law • Fate of inconsistent national law: • The requirement to set aside the conflicting national law does not entail an obligation to nullify national law---which may continue to apply in any situation which is not covered by a conflicting provision of Community law. • This principle is confirmed in Factortame Case (1990) • “Disapplying” not “nullifying”...

13. Supremacy of Community Law from the perspective of the Member States • Most of the national courts do not accept “unconditionality monist approach” of the ECJ regarding supremacy • In practice, they accept supremacy---but most of them see this as deriving from their national constitution---not from the authority of the EU Treaty/ECJ • These courts keep a power of ultimate (final) constitutional review over measures of EU law

14. France • French Council d’Etat recognized the supremacy of regulations and directives over French statutes (laws) • But it has not recognized the primacy of EU law over the French constitution itself • This is why in case an inconsistency is identified the French Constitution is amended ---Constitution was amended many times in the past: • 1992 amendment---to give effect changes by Maastricht Treaty (right to vote and stand in municipal elections) • 1999 amendment---to facilitate ratification of the Amsterdam Treaty

15. Germany • Art. 24/1 of the German Constitution: “The Federation may by a law transfer sovereign powers to international organizations.” • But---does this article permit the transfer of a power to contravene certain basic principles under the Constitution? • German Constitutional Court answered this question in two famous judgment • 1- Solange-I (as long as)-1974 • 2- Solange-II (so long as)-1986

16. Solange I (1974) • “The part of the Constitution dealing with fundamental rights is an inalienable essential feature of the valid constitution of ...Germany...” [cannot be taken away from you] • “The Community still lacks a democratically legitimated Parliament directly elected...It still lacks in particular a codified catalogue of fundamental rights” • “provisionally, therefore...in case of a conflict between Community law and the guarantees of fundamental rights in the Constitution---the guarantees ...in the Constitution prevails as long as the” Community keeps this sturcture in force • Therefore the Const. Court refused to recognize unconditional supremacy of Community law---this was because of the concern of the Constitutional Court over the possible impact of EC law on basic rights enshrined in the German Constitution. • Therefore such fundamental rights shall prevail in case of conflict with the Community law----as long as the Community continue to have such a structure.

17. Solange II (1986) • Having considered various changes in Community law since 1974, like “ECJ doctrine of protection for fundamental rights” + All member states had acceded to the ECHR-----the German Const. Court stated in Solange-II: • “In view of these developments...so long as the EC and the case law of the European Court, generally ensure an effective protection of fundamental rights as against the sovereign powers of the Communities which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the (German) Constitution and in so far as they generally safeguard the essential content of fundamental rights, the Federal Constitutional Court will no longer exercise its jurisdiction...and will no longer review such legislation by the standart of fundamental rights contained in the Constitution”

18. Solange II • Therefore----in principle the Court may not review, but this is because of its own decision/discretion, not because of EC law • The Const Court did not give up its jurisdiction or come to the conclusion that no such jurisdiction exist • The Court wanted to preserve its final authority to intervene where problems concerning the protection of fundamental rights in Community law could arise.

19. Germany • In another case, the German Const Court: • As stated in Solange II, human rights protection within the EC legal order was generally comparable to the level of human rights protection under the German Basic Law. • Therefore, applications to the Const Court attacking secondary Community law on the basis of German fundamental rights would be inadmissible if they did not argue that the general level of human rights protection, fell below the necessary level on the basis of a comparison with German levels of protection

20. Germany • In 1994—the constitutionality of the state’s ratification of Maastricht Treaty was challenged before German Const Court • The Court affirmed the sovereignty of the German state • The Court warned the Community institutions and the ECJ that “Germany’s acceptance of the supremacy of Community law is conditional”

21. Germany • The German Constitutional Court stated the scope of its jurisdiction to review: • Whether EU institutions have remained within the limits of their powers (ultra vires control) • Whether EU institutions violate the basic constitutional rights of German inhabitants.

22. Italy • Art 11: “Article 11  [Repudiation of War][rejection]Italy repudiates war as an instrument offending the liberty of the peoples and as a means for settling international disputes; it agrees to limitations of sovereignty where they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organizations furthering such ends.” • Art. 11 of the Italian Constitution---permits limitations of sovereignty if necessary to an int. Organization which ensures peace and justice between nations • This article formed the basis for Italian Courts to accept the supremacy of Community law

23. Italy • Italian Constitutional Court has stated in a case the following: Article 11 of the Constitution “can nevertheless give the organs of the EEC an unacceptable power to violate fundamental principles of our constitutional order or the inalienable rights of man” • Therefore Italian Const Court clearly stated that----it would continue to review the exercise of power by the organs of EC in order to ensure that: • A- there was no infringment of fundamental rights • B- there was no infringment of basic principles of Const. order

24. United Kingdom • The main problem on the acceptance by the UK of the supremacy of EC law is the “fundamental constitutional principle of Parliamentary sovereignty” (principle of supremacy of parliament) • According to this principle: UK Parliament has the power to do anything other than “to bind itself for the future”. • This principle made it very difficult for the UK to transfer some exclusive legislative powers to EC institutions

25. United Kingdom • UK follows a dualist approach regarding international law • International treaties concluded by the UK must be domestically transformed by an Act of Parliament • But the traditional principle of Parliamentary sovereignty does not permit the earlier statute to constrain Parliament---lex posterior

26. United Kingdom • European Communities Act-1972 • “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the (EC)Treaties...are without further enactment to be given legal effect or used in the UK...shall be recognized and available in law...” • This provision aims to make the concept of “direct effect” as part of UK legal system---there is no need of fresh act of transformation to enable the UK courts to enforce EC Treaty provisions, regulations, directives... • Just like other EU countries---supremacy of EU law is recognized in the UK by virtue of domestic legal process

27. United Kingdom • In a court case (Lord Denning): it was stated that; • The supremacy principle is accepted because the Parliament clearly intended to abide by this principle when it enacted 1972 Act • “Thus far I have assumed that our Parlament, whenever it passes legislation, intends to fulfil its obligations under the (EC) Treaty. If the time should come when our Parliament deliberately passes an act with the intention of repudiating[refuse to accept] the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought that it would be the duty of our courts to follow the statute of our Parliament”

28. United Kingdom • Therefore---a provision of domestic legislation inconsistent with the Community law---is presumed to be accidential contravention and in such cases the UK court should: • A- deem the domestic law in conformity with EC law, or; • B- if necessary override the conflicting domestic provision • This overriding is to be seen as a fulfilment of Parliamentary intention • UK courts do not accept the view that those obligations stem directly from the (EC) Treaties; • But rather from the express will of the UK Parliament • If it is clear that legislative contravention of Community law is intentional----domestic law must prevail

29. Ireland • Art 29 of the Irish Constitution: “The State may become a member of the ECSC, EEC, ... The State may ratify the Single European Act ...The State may ratify the Treaty on European Union ...and may become a member of that Union. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the European Communities or of the Communities or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities, or institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State. “ • This is to protect the EC law from constitutional review and to give it supremacy • BUT Irish Supreme Court delivered an intersting decision:

30. Ireland • Irish Supreme Court (1987 Crotty v. An Taoiseach): • This provision would not cover all further transfers of sovereignty away from the state and would not cover any amendments to EC Treaties which alters the scope of the Community. • Any Treaty amendment of this kind requires a further constitutional amendment which in Irealand necessitates approval by popular referendum. • The Lisbon Treaty has this nature—therefore been submitted to referendum

31. Important difference • Distinction between two things: • A- EU law in force and its constitutional review • B- EU law that will enter into force through an amendment treaty Czech Constitutional Court November 2009

32. Supremacy of EU Law • Consequences of supremacy of EU law: • National judges should apply EU law and ignore national law. • Constitutionality of EU law cannot be examined by national constitutional courts. EU law must be applied even if it is contrary to national constitution

33. Supremacy of EU law • Consequences of supremacy of EU law: • 3-While there are exceptions (Netherlands)—most member state courts continue to locate the authority of EU law in the national legal order centrally within the national constitution not above it and not in the sovereignty of the EU. • 4- Many higher national courts assert the ultimate role of national court in ensuring • A- proper boundaries of EC competence • B- rights which are fundamental in national legal order • 5- While this ultimate control has been asserted it has rarely materilazied in practice (see next page)

34. Realization of ultimate control • In 2005, German Federal Constitutional Court declared “the European Arrest Warrant Act” as unconstitutional and void. This was put into effect because of EC Framework Decision • According to the Court: • the Act went beyond the limits regarding freedom from extradition (protected in Basic Law) in a disproportionate manner because the Parliament has not exhausted the margins afforded by the Framework Decision • It also violates the guarantee of recourse to a court (protected in Basic Law)---because there was no possibility of challenging the judicial decision that grants extradition. • Therefore extradition of German citizens is not possible unless and until the Legislative adopt a new act.