European Union Law WEEK 6

EU Law SUPREMACY

EU Law Outline Supremacy from the ECJ’s perspective Foundation Relation with Direct Effect Application Impact on National Law Supremacy under the Constitutional Treaty and Lisbon Treaty Supremacy from the Perspective of MS

Supremacy from the ECJ’s perspective EU Law Supremacy from the ECJ’s perspective

EU Law Foundations

EU Law “The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals.” Van Gend en Loos, ECJ Case 26/62

EU Law EU Law – Van Gend en Loos is an autonomous legal order is distinct from international and national law has its own logic in relation to supremacy over the law of the Member States

EU Law Foundations – Developed by the ECJ “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 the law stemming from the Treaty, an independent source of law, could 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. Consequently Article 177 is to be applied regardless of any domestic law, when ever questions relating to the interpretation of the Treaty arise.” Costa v. ENEL, ECJ Case 6/64

EU Law Supremacy: Community law takes priority over all conflicting provisions of national law whether passed before or after the Community measure in question.

EU Law Arguments for Supremacy Contractarian argument Functional argument Analytical argument

Relation with Direct Effect EU Law Relation with Direct Effect

EU Law Distinction between the two concepts Principle v. Effect Pre-Lisbon relation Incidental horizontal effect

EU Law Application

EU Law Supremacy as a Principle Applicable to all National Law Place of Community Law in the hierarchy of norms Applicability within the limits of Direct Effect

EU Law Supremacy in time National Laws that Post-date EU Law National Laws that Pre-date EU Law

EU Law Application of Supremacy by National Bodies Constitutional Courts National Courts Administrative Agencies

EU Law Impact on National Law

EU Law Impact on National Law Inapplicability of National Law Inapplicability of National Judicial Decisions Principle of Res Judicata and the domestic rules of procedure

Supremacy under the Constitutional Treaty and Lisbon Treaty EU Law Supremacy under the Constitutional Treaty and Lisbon Treaty

EU Law Constitutional Treaty  “primacy over the law of the Member States” Lisbon Treaty – Declaration 17 Concerning Primacy “It follows (…) 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.”

Supremacy from the Perspective of Member States EU Law Supremacy from the Perspective of Member States

EU Law Does the MS accept the supremacy of EU Law? On which conceptual basis does the MS accord supremacy to EU Law? Does the national legal order place limits on the acceptance EU Law supremacy? Who has ultimate authority to define the allocation of competence between the EU and the Member States? (Kompetenz-Kompetenz issue)