On Monday, the series TERRITORIAL
DISPUTES introduced very briefly the case of Northern Ireland. Yesterday, the
post presented very broadly the notion of supremacy or primacy of the European
Union law by means of case law. Today, the post will include the analysis of another
European Court of Justice decision in which the principle is characterized.
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.
Case
6/64 Costa v E.N.E.L. [1964] E.C.R. 585
Facts
·
By Law No.1644 of 6th December Italy nationalized
production & distribution of electricity. As result, created Ente Nazionale
Energia Elettrica (E.N.E.L.).
·
Costa was a lawyer who had owned shares in one of pre-nationalized
electricity companies, Edison Volta. E.N.E.L. had brought proceedings against
him for non-payment of invoice for electricity.
·
Costa argued in local court (Giudice Conciliatore) that
law nationalizing industry was unlawful because contravened E.C. monopoly laws
(art.102, 93, 53 & 37 E.E.C.)
European Legal Order
·
Contrasting with international treaties, E.E.C. Treaty
created own legal system which became integral part of legal systems of M.S.
and which national courts are bound to apply.
·
By creating Community of unlimited duration, having
own institutions, own personality, own legal capacity, capacity of
international representation & real powers stemming from limitation of
sovereignty or transfer of powers, M.S. have limited their sovereign rights in
limited fields and created body of law which binds their nationals and
themselves.
Outcome
·
“The integration of the laws of each Member State of
provisions which derive from the Community, and more generally the terms and
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 the basis of reciprocity.”
·
E.C. membership “carries
with it a clear limitation of a Member States’ sovereign right upon which a subsequent
unilateral law, incompatible with the aims of the Community cannot prevail.”
·
E.C.J. confirmed that where national law & E.C.
law conflict, E.C. law must take precedence, even where national law been
enacted subsequent to E.C. law, thus ruling out possibility of national law
taking precedence under doctrine of implied repeal.
Political Reasoning
·
Provision of E.C. (E.U.) law would be ineffectual if
later national law could prevail over it. Because of its special nature, E.C.
(E.U.) law cannot be overridden by domestic legal provisions.
·
To allow subsequent national laws to prevail over
existing E.C. (E.U.) laws would impinge on the effectiveness of E.C. (E.U.) law
and deny rights to individuals. In particular, direct applicability of
Regulations would be meaningless if M.S. could negate effect by enacting
subsequent, conflicting legislation.
·
Uniformity of application of Community (now Union) law
is pre-requisite for successful functioning of Community (now Union).
·
Objectives of E.C. Treaty (now T.E.F.U./T.E.U.) would
be jeopardised if application of Community (now Union) law varied from state to
state in deference to subsequent national legislation.
Legal Justifications
·
Treaty created own legal system which immediately
became “an integral part” of
legal systems of M.S. – legal system separate from international & national
laws;
·
This was carried out by States transferring to new
Community (now Union) institutions “real
powers stemming from a limitation of sovereignty.”
·
In accordance with spirit & aims of Treaty was “impossible” for M.S. to accord
primacy to domestic laws.
·
“Spirit” of Treaty required M.S. to
give full effect to Community laws which they had accepted on basis of “reciprocity”. M.S. had promised to
fulfil all obligations arising from Community law under art.10 E.C. (now art.4 (3) T.E.U.) (so-called
“fidelity clause”).
·
“Aims” of Treaty, integration
& cooperation (achievement of “ever closer Union” in Preamble &
non-discrimination on grounds of nationality in art.12 E.C. (now art.18
T.F.E.U.)) would be undermined by M.S. refusing to give full effect to
Community (now Union) law. In other
words, aims & objectives of Community (now Union) would be undermined if Community
(now Union) law varied from State to State in deference to subsequent domestic
laws. There was need for supremacy in order to provide for uniformity and
effectiveness of E.C. (now E.U.) law across all M.S. without which spirit of
Treaty would not be being followed and aims of Treaty (i.e. to create common
market, eliminate discrimination & achieve deeper integration) would not be
realised. Court used
teleological (or wide purposive) approach, based on aims of Treaty & type
of system M.S. created, in order to justify creation of supremacy.
·
Obligations undertaken by M.S. in Treaty (e.g. in
art.10 & art.12 E.C. (now art.4 (3) T.E.U. & art.18 T.F.E.U.)) would be
“merely contingent” rather than
conditional if were subject to subsequent national legislative acts.
·
Language of direct applicability in art.249 E.C. (now
art.288 T.F.E.U.) for Regulations would be meaningless if individual
Member States could negate effect of Community (now Union) law by passing
subsequent inconsistent legislation between themselves.
Tomorrow, the post will present the last ECJ case
relevant to this blog series. On Friday, the attention will be on defining and
characterizing 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
27th June 2018
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