An European Union Law Law European Essay

Published Date: 02 Nov 2017

INTRODUCTION

In EU law, the supremacy of European Union is define as a constitutional doctrine, and is established by the ECJ along with a "new legal order" theory. In the case of Flaminio Costa v ENEL, there is an opposition as national power monopoly among the Italian law and European Commission. Between EC and national law is then specified a strong pyramid, that is "by creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the member states have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves .

the integration into the laws of each member state of provisions which derive from the community and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity . such a measure cannot therefore be inconsistent with that legal system . 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." [1] Moreover, the regulation of Article 189 for all Member States to be bound to the EEC Treaty was stated once again; all member state should be binding.

DUALITY OF SUPREMACY OF EU LAW

The ECJ established principle of supremacy at the 1960s, and in case of incompatible results in the application of both legal systems to the same situation, the contradictory national law of member states become irrelevant. [2] It means that whenever there is a conflict between a national law and EU law, the judge must first give immediate effect to EU law. EU law rules over national law.

This leads to a dualism between the ECJ and member states exist; ECJ promotes that the supremacy of EU law, whereas member states do not accept the supremacy doctrine completely. Member states do not treat the EU law as unconditional and they claim that it is themselves that retain a definitive power to rule on the competence between the EU Law and national law. EU law has supremacy over national statues, but then again cannot conflict with constitution in each of member states. Also, the national courts think that they hold an ultimate power to rule in conflicts between EU law and national law, not the ECJ.

National’s perspective

Member states’ perspectives - As previously mentioned the supremacy doctrine and the restriction by the EU law are not truthfully accepted by most member states. However, The Netherlands is the only exception. [3] 

Netherlands

From an amend in 1963 to the Constitution of the Kingdom of the Netherlands. It binds upon on its own legal persons and has supremacy over national law. Reference this – where did it come from.

United Kingdom

National and international laws are two separate legal systems and are strictly followed in the UK. Therefore, national provisions are applied completely within state area and cannot get involved in the international legal system. International treaties have an effect solely at an international level. Section 2(1) of the European Communities Act 1972 gives legal effect to EU law in the UK. The supremacy doctrine can only be applied based on express constitutional amendment.

Another problem for the UK which is a conflict that is raised between the doctrine of parliamentary sovereignty and the supremacy of EU law. Parliament can create or terminate any law. [4] UK courts cannot invalid any Parliament legislations and the Parliament can always create law or change the law in the future. In the case of Factortame ltd v. Sectary of state for Transport, [5] it was held that the supremacy of EU law over UK law is only accepted where EU law has competency over the British Legal system. Therefore, if the Parliament passes a new law which conflicts with EU law, the courts may have power in some circumstances to have a short-term restriction to stop the UK authorities enforcing that law. In fact the supremacy of EU develops from the implementation of parliamentary sovereignty.

GERMANY

In Germany, the public international law is an essential part of federal law. The public international laws take superiority over federal and directly create rights and duties for the federal. Similarly to the UK, supremacy doctrine is in Art 25 of German Constitution, not the description of EU law.

At first, A German court refused to recognized supremacy of EU law. In International Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [6] , it was ruled that there must be an official amendment to the Constitution to amend the basic structure of the Constitution,

In Wunsche Handelsgesellschaft GmbH & Co. V Federal Republic of Germany, there is a conflict over fundamental rights between EC law and national law. The Federal Constitutional Court used its ultimate power to intervene if problems affect the safety of basic rights in Community Law.

In the case Brunner v The European Union Treaty [7] , the court ruled that the review power over the scope of Community competence should be exercised by itself. Accordingly, the German courts think themselves as having the final power to decide whether action taken by the Community falls within the scope of Community competence. Reference this – where did it come from. Nevertheless, the ECJ of course did not agree with it.

FRANCE

French courts jurisdictional restriction is the fundamental difficulty to acknowledge of supremacy of EU law. Under French Constitution of 1958, the Constitutional Council is the only body which has the supremacy to decide on the legislations from constitution. Conflict raised as the court has no power to review their own French legislation. [8] 

In Café Jacques Vabres [9] and Raoul Georges Nicolo [10] , the court ruled that the Treaties should actually prevail over Acts of Parliament under Article 55 of the Constitution. However, the Supreme Administrative Court did not recognize the primacy of EU law over the Constitution itself. Reference needed The Community law is held to rank above statue but below the Constitution and French courts do not accept that the supremacy doctrine above all national law.

And there is a conditional conflict in Art 55,"treaties of agreement duly ratifies or approves shall, upon publication, prevail over Acts of Parliament, subject, in regard to each agreement or treaty, to its application by the other party" [11] . The EU law can only be applied if there is a removal of this conflict by amendment of legislation.

The Supreme Administrative Court did not recognize the primacy of EU law over the Constitution itself. Community law is actually held above statue but below the Constitution. Therefore, it is reasonable that the French Courts do not accept the supremacy doctrine over all national law as stipulated in the ECJ’S perspective why is it reasonable? In case of a conflict between EU law and the French Constitution, EU law cannot be applied unless the conflict has been removed by a constitutional amendment.

ITALY

Same as the case with Germany and France, Italy is also based on its own constitution under Art 11 of the Italian Constitution. "…it aggress 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". [12] 

In the Frontini case, [13] the Italian Constitutional Court decided that article 11 cannot give the organs of the EEC an unacceptable power to violate the fundamental principles of the constitutional order or the inalienable rights of man. If there is a contravention of a fundamental principle of the Italian Constitution concerning about human rights protection, the Community measure would not be applied.

IRELAND

According to the Third Amendment of the Constitution Act, Art 29(4) "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the state necessitated by the obligation of membership of the EC or prevents laws enacted, acts done or measures adopted by the EU 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." [14] Complete supremacy to EU law in the State is given by the above legislation.

But in practice, it is not always upheld by the courts. In 1989, the Irish Supreme Court enjoined several student groups from distributing literature regarding the availability of abortion in England since the distribution of such information violated the Irish conational proscription against abortion. The case is Society for the protection of Unborn Children (Ireland) ltd v Grogan. The injunction is actually conflicted with the free movement of series under EU law due to recognition of abortion as a service by the ECJ. Reference the case and page this decision was made on However, the court declined to address the compatibility of the ban with EU law. Therefore, the EU law does not really have primacy over some fundamental principles in Ireland.

POLAND

Art 90(1) of the Polish Constitution, supremacy doctrine has been accepted on account of the Constitution itself.

However, neither Art 90(1) nor 91(3) authorized delegation to an international organization of the competence to issue legal acts or take decision contract to the constitution. Therefore, the Polish courts do not accept the supremacy of EU law over its own constitution and also regard national constitutional rights as a minimum which cannot be questioned as the result of a provision of Community law. Polish Constitutional Tribunal expressly declares that the Polish Constitution has an absolute primacy over Community law. This might lead to a situation that all Polish courts, not only Constitutional Tribunal, will have to disregard some of Community measures as long as they conflict with the Polish Constitution. [15] Hence, the courts do not accept the EU law has primacy over its own constitution, and they retain ultimate authority over the issue of whether EU law infringes fundamental rights. reference The case was followed in 1984 by Granital [16] , in which the Italian Constitutional Court ruled that it had the power to adjudicate upon the basic issue of competence between Community law and national law. Polish Constitution Tribunal expressly declared that the Polish Constitution has an absolute primacy over Community law, and it might lead to a situation that all Polish courts, not only Constitutional Tribunal, will have to disregard some of Community measures as long as they conflict with the Polish Constitution.

ECJ’S PERSPECTIVE

There is actually no provision about the supremacy doctrine in the EC treaty; however, the ECJ defined EU law as a "new legal order" reference different from ordinary international treaties to support its principle. Member states are automatically bound by EU law as a result of establishment of EU under ECJ’s perspective, contrasts with the Vieanna Convention of the Law of Treaties [17] which states that a state cannot be bound by a treaty without its consent.

In International Handelsgesellschaft mbH V. Einfuhr [18] , the ECJ decided that "the validity of a Community measure of 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 the State or the principles of a national constitutional structure." [19] It developed that every national court must apply Community law in its entirety and protects rights which the latter confers on individuals and must set aside any provision of national law which may conflict with it within its own jurisdiction. Also, all legislative, administrative or judicial organisations are empowered to pronounce on the constitutionality of a national law. This is to ensure that any national court would rule the national law invalid immediately when there is a conflict between a national law and EU law.

Conclusion

Despite of the constitutional doctrine developed by the ECJ, the supremacy of EU law is not satisfactorily implemented in the member states. They continue to locate the authority of EU law in the national legal order centrally within the national constitution and not in the jurisprudence of the ECJ or in the sovereignty of the EU. reference The legal nature of the EU is the fundamental reason for this situation as the decisions of the ECJ are not legally binding on national courts of member states among the EU. Reference From different member’s perspective, we can see that there is a conflict in between the Constitution and the ECJ’s law. We can therefore conclude that members do not truly obey and adopt the supremacy doctrine. However, the European Court of Justice is struggling to try his best to urge the member to follow it.

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