2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy (Primacy) of EU Law

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy of EU Law over National Laws Article I-6 EU Constitution had referred explicitly to the primacy of Union law over national law Article I-6 Reflects existing case law of the Court of Justice of the European Communities and of the Court of First Instance Declaration (No.17) of 2007 Lisbon Reform Treaty Lisbon treaty no supremacy article but a Declaration-cases, treaties and legislations adopted by EU have supremacy over National Law

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy Principle Annex to final act  Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260), 22 June 2007 on supremacy of EU Law.  ECJ said in Costa v ENEL (6/64), 15 July 1964, supremacy principle is inherent to the specific nature of the European Community.  The ECJ ruled that the purpose of creating uniformity in the common market would be undermined if community law was subordinate to National laws.  The sources of precedence are Articles 10 (principle of Loyalty), 12, 228, 249(288 new), 292 EC.

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy/ National courts and Citizens ECJ- the acceptance of community law by member states was for: §Integration §Under the terms and spirit of the Treaty: Primacy §Accepted by member states on the basis of reciprocity New legal order (Jurisdiction of ECJ) Case Law. Van Gend en Loos case says that Community law intended to" confer rights upon individuals which became part of their legal heritage. Internationale Handeslgesellischaft (11/70), Simmenthal(106/77) Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect the rights conferred on individuals.

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy and National Judge Case gives powers on National judges to implement Community law and to set aside National laws which are in conflict (prior or after inception)  Cases which serve as a guidance to National Courts / Judges:  167/73 Commission v. France  103/88 Fratelli Constanzo v. Comune di Milano  C-224/97 Ciola  C-285/98 Tanja Kreil

2008 Adobe Systems Incorporated. All Rights Reserved. Secondary Legislation and Direct Effect §Article10 principle of loyalty §Article 249(288 new) EC Render the actions of National law to be subordinate to Community law. §Regulations Expected to be clear, unconditional and complete §40/60 Bollmann, 94/77 §Fratelli Zerbone, 34/73 §Variola, 93/71 Leonesio, §50/76 Amsterdam Bulb BV, §C-253/00 Munoz.

2008 Adobe Systems Incorporated. All Rights Reserved. Direct effect, Conformity & Limitations of EU Law Larsy the ECJ ruled that the direct effect of the Community law does not only apply to National courts but also to administrative agencies like insurance institutions. Simmenthal case (106/77), the ECJ does not expect the national court to nullify or invalidate the provisions of the national law but expects have to simply ignore or refuse to apply it IN.CO.GE’ 90 Case rule in Simmenthal was emphasis. C-213/89 Factortame(No.2) granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the right claimed under Community law.

2008 Adobe Systems Incorporated. All Rights Reserved. Direct Effect and Directives Decisions Confers obligations only on its addressee. If address to a member state, it has no horizontal direct effect see Case 9/70 Grad /SACE. Directives Shall be binding, as to the results to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. Directives are however considered to have vertical and horizontal direct effect. In Case 41/74 Van Duyn, there was a direct application of Articles 249(288 new) and 234 EC. There was also the effective use of effet utile

2008 Adobe Systems Incorporated. All Rights Reserved. Direct Effect cont. C-106/89 Marleasing SA v La Commercial…,as pointed out by ECJ in Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen ECR 1891, para.26, The member states’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the treaty to take all appropriate measures, whether general or particular, to ensure fulfillment of that obligation, is binding on all authorities of the member states including, for matters within their jurisdiction, the courts. The national court called upon to interpret it is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the results pursued by the latter and thereby comply with the third paragraph of Article 288 of the treaty. See Directive No. 76/207. Also Case 80/86 Kolpinghuis

2008 Adobe Systems Incorporated. All Rights Reserved. MS Liability for breach of Community Law Case C-6/90 i and C-9/90 Francovich v. Italy, Factortame III (C46 and 48/93 Community law was remedied since it was inherent in the system of the treaty Directives grant rights to individuals and content of those rights is identifiable from the Directive itself and there is a casual link between the breach of Community law by the member state and the actual loss suffered by the individual plus procedural autonomy. Case 152/84 Marshall v Southampton and South-West Hampshire Health Authority [1986] ECR 723 Para. 48, Directive cannot of itself impose obligation on an individual and cannot therefore be relied upon as such against an individual

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy & Judgment of German Bundesverfassungsgerecht With its Article 23, the Basic Law grants powers to participate and develop a European Union which is designed as an association of sovereign national states (Staatenverbund). European unification on the basis of a union of sovereign states under the Treaties may not be realised in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life That the Act of 8 October 2008 on the Treaty of Lisbon of 13 December 2007 infringes Article 20.1 and 20.2, Article 23.1 and Article 79.3 of the Basic Law and violates the applicant’s rights under Article 38.1 of the Basic Law, European Union Matters infringe Article 20.1 and 20.2, Article 23.1 and Article 79.3 of the Basic Law and violate the applicant’s rights under Article 38.1 of the Basic

2008 Adobe Systems Incorporated. All Rights Reserved. Matthias Niedobitek Review of the Bundesverfassungsgerecht  the Court did make the constitutionality of the Act Approving the Lisbon Treaty dependent on an amendment of the Act Extending and Strengthening the Rights of the Bundestag (German Federal Parliament) and the Bundesrat (German Federal Council of States) in European Union Matters.  This raises the more general question of whether constitutionality should be made dependent on the existence of a particular piece of ordinary legislation?  From a European law standpoint it is doubtful whether the involvement of the parliament in the formation of the government’s will as requested by the Court’s judgment, be it by way of an act is in conformity with the Treaty of Lisbon?  To Matthias, the judgment is characterized by mistrust towards the federal organs, the federal government in particular and by the attempt to consolidate the competence of final review on the Federal Constitutional Court itself.

2008 Adobe Systems Incorporated. All Rights Reserved. Supremacy and CFSP However,the Lisbon articles have moved from the TEU to the TFEU, thereby blurring the distinction between the pillars without completely dismantling them: the present Title VI on “police and judicial cooperation in criminal matters” is put into the Title on the “area of freedom, security and justice” in the TFEU. The Union’s duty in Article 3a (Lisbon Article 1(5) to ensure “the territorial integrity of the State”, also contained in the Constitution, builds on Article 11 TEU (CFSP) on the objectives of the CFSP, which include safeguarding the “independence and integrity of the Union in conformity with the principles of the United Nations Charter”. This provision could have special resonance for Gibraltar, a British Overseas Territory claimed by Spain. Thanks for Listening Julius Che. Student No.