The Relationship Between Eu And National Law Law European Essay

Published Date: 02 Nov 2017

INTRODUCTION

In EU law, the supremacy of European Union is defined as a constitutional doctrine, and is established by the ECJ along with a “new legal order” theory. In Flaminio Costa v ENEL, there is an opposition that national power is the monopoly among the Italian law and European Commission. Between EC and national law is then specified as 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, all Member States to be bound to the EEC Treaty was stated once again in the regulation of Article 189. Strictly speaking, all member state should be binding according to the regulation.

DUALITY OF SUPREMACY OF EU LAW

The ECJ established the principle of supremacy in the 1960s. The contradictory national laws of member states become irrelevant [2] , if it is not compatible to apply of both legal systems to the same situation. It means that whenever there is a conflict between a national law and EU law, the judge must give priority to EU law immediately. EU law rules over national law for sure.

This leads to a dualism between the ECJ and member states. ECJ promotes that the supremacy of EU law, whereas member states do not accept and obey the supremacy doctrine completely and truly. Member states do not treat the EU law as unconditional and they even claim that it is themselves to retain a power to rule on the competence between the EU Law and national law. EU law has supremacy over national statues only in the sense that there cannot be any conflict with constitution in each of member states. Also, in conflicts between EU law and national law, the national courts have the perception that they hold an ultimate power to rule out a decision, but not the ECJ.

National’s perspective

Let us first look at the 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

In 1963, there is an amedment to the Constitution of the Kingdom of the Netherlands. It binds upon on its own legal persons and has supremacy over national law. [4] Therefore, the courts are truly following the supremacy under such a condition.

United Kingdom

National and international laws are two separate legal systems and are strictly followed in the UK. Within the state area, national provisions are applied fully that no exception can get involved in the international legal system. Only at international level can be affected by the international treaties. Section 2(1) of the European Communities Act 1972 gives legal effect to EU law in the UK. To sum up, Express constitutional amendment is the only way for the supremacy doctrine to be applied.

There is a difficulty regarding to the conflict between the doctrine of parliamentary sovereignty and the supremacy of the EU law. Parliament can create or terminate any law. [5] Parliament legislation cannot be invalidated by the courts and it can only be changed or created by the Parliament. In the case of Factortame ltd v. Sectary of state for Transport, [6] , UK is only accepting the supremacy of EU law over UK law in the English Legal system. Thus, 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

Under the federal law, the public international law is fundamental to Germany. It takes superiority over federal and can directly create rights and duties for the federal. Similarly to the UK, supremacy doctrine is under the German Constitution Art 25 but not the nature of EU law.

Actually, if we look back, the supremacy principle was rejected by the courts in Germany. In International Handelsgesellschaft mbH v Einfuhr-und Vorratsstelle fur Getreide und Futtermittel [7] , it was ruled that there must be an official amendment to the Constitution to amend the basic structure of the Constitution,

A conflict over fundamental rights between EC law and national law in Wunsche Handelsgesellschaft GmbH & Co. V Federal Republic of Germany. [8] By using the ultimate power, the Federal Constitutional Court intervened any issue that can alter the safety of basic rights in Community law.

The court also ruled that the power to review the scope of Community competence should only be exercised by itself in the case Brunner v The European Union Treaty [9] . Accordingly, the ultimate decision is still holding in the hands of German courts. [10] Without any doubt, the ECJ does not agree with it.

FRANCE

Under the restrictions from its jurisdiction, French courts can hardly acknowledge the supremacy of EU law. Under French Constitution of 1958, the Constitutional Council is the only body to decide on the legislations of the constitution. Since the court has no authority to review their own French legislation, conflicts are raised. [11] 

In Café Jacques Vabres [12] and Raoul Georges Nicolo [13] , the court ruled that the Treaties should actually over Acts of Parliament under Article 55 of the Constitution. Nevertheless, the Supreme Administrative Court did not recognise the supremacy of EU law over the Constitution itself. In spite of the lower priority, the Community law is not actually admitted a less priority than the Supremacy principle of EU under the French Constitution by the court. Therefore, it is criticised that the French Courts do not truly follow the supremacy doctrine as required.

ITALY

Similar to Germany and France, Italy has fundamental rights on their constitution under Art 11 of the Italian Constitution. [14] 

In the Frontini case, [15] the Italian Constitutional Court stated in article 11 that it cannot give EEC improper power to interrupt the nature essential doctrines of the constitutional order. The statement is also backed up by the case Granital [16] ,

in which the Italian Constitutional Court ruled that it had the ultimate power to judge upon the basic matter of competency between Community law and national law.

IRELAND

As for Ireland, the legal authority of supremacy to EU law in the State is given by the Third Amendment of the Constitution Act, Art 29(4) [17] 

But in reality, it is far from the legislation. It is always rejected by the courts. For instance, the case Society for the protection of Unborn Children (Ireland) ltd v Grogan [18] gave out literature about the availability of abortion in England. Interestingly, the sharing of such information is actually violating the Irish prohibition against abortion. A conflict is then raised against the free movement under Art 59 EEC. To avoid any disturbance, the court skipped to give any reasoning regarding to that issue. Thus, the EU law does not really have supremacy in some fundamental principles in particular aspects in Ireland.

POLAND

Moreover, the supremacy of EU law is given by Art 90(1) of the Polish Constitution.

Nevertheless, both Art90 (1) and Art90 (3) did not give permission to international organisation to complete with conflicts between national and international. The Polish courts are not denying the supremacy doctrine, but reject to admit it over its own constitution law. [19] Polish Constitutional Tribunal states that the Polish Constitution has a complete primacy over Community law. This has created a circumstance which Polish court will incomplete some community law when it comes to conflicts in regarding to the Polish Constitution. Avoiding accepting the supremacy of EU law, the courts hold the primacy of its own constitution to decide any case when it comes to any conflicts raised against EU law. [20] 

ECJ’S PERSPECTIVE

Without any providing information in the supremacy doctrine in the EC treaty, there is a new concept of "a new legal order" by the EU law. Unlike all other international treaties, Member states are automatically bound by the EU law as a consequence of establishing of EU under ECJ’s perspective. It is actually a contrast with the Vienna Convention of the Law of Treaties which states that a state cannot be bound by a treaty without its consent. [21] 

Moreover, it established that national court is obligated to complete Community law in its fullness and protects rights on beings and must set away any national law which possibly will conflict with it. To assure that national court do rule over the national law straightaway when there is a conflict between a national law and EU law, all organisations are authorised to state on the constitutional of national law.

Conclusion

In conclusion, the sovereignty of EU law is not adequately carried out in the member states even though the doctrine was created by the ECJ. The member state are not locating the authority of EU law centrally truly, priority to their own constitution. Insead, they perceive the supremacy of EU law in their own ways and hold their own perception. Fundamentally, the legal nature is the main reason that for member state not following the ECJ completely. Member's states are not legally bound by the EU law. Conflicts are then raised in between the constitution of member's state 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. It continuously stressed on its supremacy over all community law in regarding to any conflict raised to the member's state's constitution. We can therefore see a great intension in between the national and ECJ's perspective.

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