Yesterday, the series TERRITORIAL
DISPUTES introduced very briefly the case of Northern Ireland. A reminder to
the reader that the first posts referred to this case will differ from previous
analysis presented by this blog series TERRITORIAL DISPUTES. This time the
series will introduce the relationship between national law and international
law. From there, the relationship between the law in the United Kingdom and the
European Union will be explored by presenting the notion of supremacy or
primacy (in a nutshell, European Union law has priority over the national legal
order of the Member States). Thereafter, the particular emphasis will be on
free movement of people, European Union citizenship, free movements of goods,
capital and services. These are the “four fundamental freedoms” that all Member
States part of the European Union reciprocally recognize and that the United
Kingdom, and therefore Northern Ireland, will give up in 2019). For the sake of
clarity, it will be only after the presentation of these elements the series
will assess in detail the case of Northern Ireland.
Failure to
include supremacy (or primacy) in Treaties
The principle of supremacy (or primacy) of European
Union law is not included in the treaty. In fact, the principle has never been
included. The principle was interpreted by the European Court of Justice
through case law. A very brief indication of key documents and references to
important European Court of Justice cases in which the principle of supremacy
(or primacy) takes shape.
·
No inclusion in Treaty of Rome 1957
·
Inclusion in Treaty Establishing a Constitution for
Europe 2004. Rejected
·
Declaration 17 of Treaty of Lisbon
·
Opinion of the Council Legal Service of
22nd June 2007
European Union Court of
Justice. Case law and supremacy (or primacy) of European Union law
Case
Van Gend en Loos (26/62)
The Netherlands adopted an import tax contrary to
art.12 E.E.C. The question before the Court was “whether individuals can
directly derive rights from the Article that are enforceable by the judge.” The
Court laid down that art.12 E.E.C. had internal effect. It decided that the
internal effect of Treaty articles should not be left to national legal systems
and that national courts should be informed whether E.E.C. law could have
direct effect. Article 189 E.E.C. already implied that Regulations had direct
effect. However, the Court held that provisions of the Treaty could be suitable
for judicial enforcement in the national courts.
The subject of primacy was not directly addressed
by the Court because art.65 of the Dutch Constitution held: “Provisions of
agreements which, according to their terms, can be binding on anyone shall have
such binding force after having been published.” Art.66 of the Dutch
Constitution also provided: “Legislation in force within the Kingdom shall not
apply if this application would be incompatible with provisions of agreements
which are binding upon anyone and which have entered into force before or after
the enactment of such legislation.”
Primacy was not an issue in Van Gend en Loos
because the Constitution provided for the immediate incorporation and primacy
of international agreements once ratified – primacy of these agreements even
over later acts of the legislature. The principal question for the Court was
whether provisions of the Treaty could, in practice, be enforced before the
national courts across the Community. This could be deemed an inherent part of
the interpretive function of the Court of Justice.
Case
106/77 Simmenthal [1978] E.C.R. 629
Facts
·
Respondent company, having imported beef from France
into Italy, brought action against applicant (Ministry of Finance) claiming
repayment of fees which had been charged to it for veterinary inspection at
frontier.
·
Inspection and charges implemented by law in 1970.
Respondent claimed inspection contrary to art.30 E.E.C. as M.E.Q.R. (now art.36
T.F.E.U.)
·
National court (Pretore di Susa) accepted that there
was conflict between art.30 E.E.C. and law of 1970 (passed subsequent to
Italian act incorporating E.C. law).
·
Italian judge was unclear whether he should apply E.C.
law immediately to case or wait for constitutional court to declare law
invalid.
Practical Obligation
·
When national court is called upon to apply provisions
of E.C. law, under duty to give full effect to provisions, if necessary by to
apply any conflicting provision of national legislation, even if adopted
subsequently.
·
Not necessary for national court to request or await
prior setting aside of provision by legislative or other constitutional means.
National law or Community
law
·
No legislative or constitutional rule could prevent
national courts from protecting rights conferred by provisions of Community
legal order.
·
Not necessary for courts to request or await setting
aside by national constitutional authorities of any national measures affecting
direct & immediate application of Community rules.
Tomorrow the blog series will present another ECJ
central in defining the principle of supremacy or primacy.
NOTE:
This post is based on Chapter 3 in Núñez, Jorge Emilio. 2017. Sovereignty Conflicts
and International Law and Politics: A Distributive Justice Issue. London and
New York: Routledge, Taylor and Francis Group.
Jorge
Emilio Núñez
26th June 2018
No comments:
Post a Comment