This essay will present the notion of supremacy in the context of the recent developments in Europe afterr the enlargement and provide correspondence from the European constitution to EU law implemented in Member States. The key aim of this essay is to express the idea that supremacy in EU law is evolving rapidly, becoming a concept open for discussion, which shapes a new order in the constitutional jurisprudence of natural courts within various Member States. Has it been easy for Member States in the European Union to give up sovereignty and prerogative powers to the Union itself?
The issues, both in a paractoical and theoretical sense, give rise to the supremacy of the European Union as a key fundanmental principle.
This reflects the issue of relation between the national law and the EU itself. This matter becomes more intriguing in the new context as the enlargement gives rise to a process of ratfication of the European Constitution. Nowhere in the Treaties themselves is there any reference to the supremacy of European Union law, or its hierarchy with the national law of the Member States.
Instead, this principle has evolved from the case law of the European Court of Justice.
The case of Costa v ENEL established supremacy of EU law, concerning a conflict between several Treaty provisions and an Italian statute, which nationalised the electricity company in Italy. Therefore, the ECJ holds a view that the creation was jurisprudential, with various Member States relating in different ways to the decision. This was also followed by Internationale Handelsgesellschaft, as mentioned below, which went further than Costa by stating that even secondary EU law, such as regulations, were a higher form of law than the specific constitutions of Member States.
Although this would not affect the UK as currently there is no written constitution, it does have significant effect on most of the other EU Member States. The doctrine of EU law’s supremacy is developed in the ECJ, however, it is known that throughout EU law a fictional structure subsides. In more general terms, most of the member states do not accept supremacy in EU law with only one exception, the Netherlands. Under the 1963 constitution,
Joseph Fleuren an EU academic writer, provides commentary on the amendment relating to supremacy. He states: “self-executing provisions of the treaties and of resolutions of international organisations are binding upon natural and legal persons and have supremacy over the national law itself. “. Following this commentary, it is said, that the acceptance of the supremacy doctrine by the Member State of the Netherlands is not derived from its own constitution, but from the recognition of the European Union throughout its laws.
Under the European Union (Amendment) Act 2008, each retrospective aspect of the EU law is directly effective towards national courts. The commentary of Steiner states “the courts of member states have now seemed to have accepted the principle of supremacy of EU law, providing they regard it as directly effective”. In correspondence with this writing, we can see that supremacy has a naturally wider application than the EU law interpretation of direct effect.
The general rule suggests that all national law is inconsistent with the current and recent EU law through the case of Von Colson and Francovich. However, the Treaty of Rome’s provisions expressed that European Union Law prevailed over per 1972 British legislation. This is shown through the case of R v Secchi where the members of the judiciary affirmed that the initial European Union law ‘is in conflict with domestic law, as the effect of the European Communities Act is to make English law, both in common and statutory instruments, in compliance with European Union law.
This presents the idea that the United Kingdom has accepted on a voluntary basis the aspects of supremacy in law of EU. Initially, as a review of the case law in the UK will provide, ECA becomes extremely uncertain. Overall, this provides that it was shown to ask whether it would enable or allow the reception of EU law within the English Legal System. This will be the first Member State I will discuss. When a Member State joins the EU, they effectively agree to be bound by its laws, both primary and secondary.
In particular the Treaty of the European Union imposes a general obligation on all Member States to make sure they fulfill all provisions under that specific Treaty. This created a problem within the UK’s constitutional system when the UK joined the European Union in 1972, as the system became dualist. In the United Kingdom, there is a problem in the way it follows a dualist theory between international and internal Member State law. This theory requires these two laws being separate legal systems, with national laws being exclusively applied between the perimeters of the state.
In order for EU law to become effective in Member States, it is necessary for that state to adopt legal provisions from the Treaty or to admit legal implications into there system. We can clearly see that the UK could only accept the do trine of supremacy if it was an express amendment of the unwritten constitution or if acts of Parliament were implemented accordingly. The traditional doctrine of parliamentary sovereignty becomes another problem when placed against the European Unions supremacy doctrine.
The parliamentary sovereignty in a constitutional capacity provides that “Parliament is the supreme legal authority in the UK, which creates and ends any law” . The cases of Factortame (FOOTNOTE) suggest how supremacy is implied. The significance of these cases are that the doctrine is only recognised where supremacy has direct effect over national law and the British legal system. The decision therefore, served as a different solution, showing that in the UK, EU law derives not from the ECJ’s development, but from the doctrine of parliamentary sovereignty.
In Germany, there is a conceptual foundation for the doctrine of supremacy, rather than a voluntary acceptance stated in Gerards stating the most important aspect as: “German courts will only accept the supremacy in European Union Law in specific circumstances where there is a direct conflict with the German Constitution”. This principle was established in the case of Internationale Handelsgesellaschaft where the court refused to accept EU law’s supremacy doctrine without principles that were pre-existing.
As a result, the German courts expressed that on hypothetical basis, the conflict between the EU law’s approach and the national law itself, the german constitution would prevail. This was based on the reliance of the fundamental rights of the constitution. Ultimately, the German courts regard themselves as holding the hiighest compentence or ‘Kompetenz’ In regards to deciding on the actions of EU law’s scope. Therefore, this rejects the essay question’s statement as even though the ECJ holds opposite opinions, German authorities lack voluntary competences in accepting the initial doctrine.
In France, it is difficult to structure where ‘national consitutional courts regard their own constitutions as the foundation for the EU law. Initially, the obstacle ahead of answering whether there been recognition of supremacy of EU law and is there a jurisprudential limited of French courts. An example of this is expressed in Semoules where the supreme court rejects supremacy doctrine on the suggestion that EU is incompatible and has no power to review legilsation of France. However, in the significant case of Café Jacques Vabres the judiciary of France takes a different view.
This states thatr when a conflict exists between national law and a ratified international treaty, which provides the French consitution to obey European Union law. The statement suggests that EU law is accepted by national authorities, namely through the supremacy doctrine. In contrast, in France, European Union law is said to be above the statute, but below the constitution itself. This emphasises intial clarity that the French coruts do not accept the doctrine of supremacy over all national law, as stipulated by the ECJ’s jurisprudence.
Therefore, in correspondence with the statement, in a care of conflict between the French constitution and EU law, it becomes similar to the German Member State. EU law can only apply if a constitutional amendment is made rather than the doctrine established through national constitutional authorities. As seen through the cases of France and Germany, the doctrine of supremacy in EU law in Italy is also based on its constitution, progressing a voluntary acceptance instead of following the ECJ rulings.
The case of Frontini provides a decision that signals the statement from Gerards to be correct in ways as the constitutional court of Italy decides that the EU law would be given a “direct power to violate fundamental principles of the consitution”. The Italian courts therefore do not accept EU law’s supremacy as primary over the national constitution. This was followed by Granital; a more modern cases that presented the Italian constitutional court to hold the power to adjudicate upon competences between national and European law.
It appears that the national law sough on by national authorities is seen as the potential foundation for EU law. In Poland, there is a similar structure to EU law’s supremacy doctrine being accepted. Through the Polish Constitution, it states that national law can be delegated to accept international organisations law directly and hold precedence in certain cases. This shows a satisfaction of the statement where the doctrine has been accepted on the constitutions account.
However, neither of these articles provide authorised delegation allowing the EU law to take decisions contrary to the constitution of Poland. The Constitutional Tribunal of Poland ruled that while the EU law may override national statutes, it does not iverride the constitution. In the case of a direct conflict between the EU law and the constitution of Poland, the sovereign decision is left to the Member State as how it should be applied. Lastly, the Member State of Ireland provides that the constitution gives rise to the supremacy doctrine itself.
This amendment implies supremacy compeltely to the European Union over the national law and the constitution of Ireland. Nevertheless, in correspondence with Gerards, the Irish national authorities seem to hold the supremacy doctrine directly from the European Union. However, in practice, in the Unborn Children case the Irish Supreme Court seemed to dismiss supremacy. Due to the injunction in this case conflicting with the free movement of services, in relation to student groups, the EU recognition was rejected. Therefore, it seems in some cases the voluntary acceptance could provide true viewing.
Whereas, in contrast, when in correspondence with the fundamental principles of the Irish constitution, the national court itself holds similar view to other Member States and rejects the supremacy doctrine on the grounds that it cannot fall above the effective constitution of that Member State. It is noted that the vision of the European Court of Justice of supremacy on European Union law has raised discussion over every provision and norm of the constitution and law. It may be noticed that the role of the ECJ does not lie upon questioning how Member States handle conflict between national nd European Law but upon interpreting EU Law in its entireity. One should acknowledge, that supremacy is inherent in the nature of EU law and derives from the logical claim that the founding treaties give an overall legitimacy. This shows that the written law cannot have substance of being consered as conclusive or exhaustive. Through jurisprudential interpretation and the new principles that could be forumlated in correspondence with the suggested voluntary acceptance of European law by Member State authorities, we could see an initial gap. Overall, this suggests that there is no way of reducing the legitimate force.
Cite this Supremacy of EU Law
Supremacy of EU Law. (2016, Oct 19). Retrieved from https://graduateway.com/supremacy-of-eu-law/