Territorial disputes: Northern Ireland (Part 4) [Post 89]

The notion of supremacy or primacy of the Court of Justice of the European Union (cont.)

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. 

Tomorrow, the attention will be on defining and characterizing the principle of supremacy or primacy.

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 soon). 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 11/70 Internationale Handelsgesellschaft [1970 E.C.R. 1125

Facts

Applicant in German court challenging legitimacy of Regulation 120/67.

Regulation required introduction of export licences in respect of cereals and rice.

One further requirement was for payment of deposits which would be forfeited in event that licensee’s quota of cereals and rice was not exported during period of licence.

Applicant obtained export licence in respect of 20 000 metric tons of maize meal.

Applicant lost deposit as only able to export some of his quota

German court accepted measure was unconstitutional under German constitution because infringed basic guaranteed rights such as freedom of action & disposition, economic liberty & proportionality

German court asked whether or not national constitutional law took precedence over E.C. law.

Doctrine of Primacy

“The validity of Community measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, 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 validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to fundamental rights as formulated by the constitution of the State or the principles of a national constitutional structure.”

Controversies

E.C.J. held E.C. law is supreme over all forms & sources of national law, even constitutional provisions that may be viewed as entrenched in M.S. Again, this is so to ensure uniform application of E.C. law over Community (now Union) & to achieve effectiveness.

In case, serious threat to supremacy of E.C. law arose. German Supreme Court voiced concerns over legal foundations of supremacy.

Unhappy that fundamental rights contained within German Constitution could be overruled by Community law.

E.C.J. made clear E.C. law supreme over all forms & sources of national law but conceded that Community (now Union) recognised such fundamental rights as “integral part of the general principles of law” whose protection be ensured “within the structure and objectives of the Community (now Union).”

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: Supremacy (or Primacy) of European Union Law

Thursday 30th April 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 3) [Post 88]

The notion of supremacy or primacy of the Court of Justice of the European Union

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 soon). 

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 6^th 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.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: the notion of supremacy or primacy of the Court of Justice of the European Union (cont.)

Wednesday 29th April 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 2) [Post 87]

The notion of supremacy or primacy of the European Union law.

The series TERRITORIAL DISPUTES introduced very briefly the case of Northern Ireland (see previous post).

REMINDER to the reader: the first posts this time 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 soon).

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 22^nd 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.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: the notion of supremacy or primacy of the Court of Justice of the European Union.

Tuesday 28th April 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

Territorial disputes: Northern Ireland (Part 1) [Post 86]

Today, we start the analysis of a new difference in this blog series TERRITORIAL DISPUTES: the case of Northern Ireland.

Northern Ireland introduces a particularly interesting application of the term “shared sovereignty” is the case of divided societies or “cultural shared sovereignty”. Northern Ireland presents with two clearly defined sectors, that of the nationalists, mainly Roman Catholics, and that of the unionists, mainly Protestants. This model applies to two ethnic or nationality groups living in the same territory neither of which wants to belong to a state dominated by the other.

The current arrangements contemplate the existence of two communities within a single State (or in the case of Northern Ireland, in a single sub-State) who deal with their divisions by sharing in the exercise of political authority. Additionally, it gives a hint of how to deal with power-sharing institutions by including sharing groups and differentiating them between compulsory and voluntary.

On the positive side, the institutional scheme of the “cultural shared sovereignty” offers all the claimants certain degree of participation. It is not easy to imagine how the institutions would work in practice after Brexit.

It is for that in the case of Norther Ireland the first posts 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.

International law and national law

International law is created by and binding between States (and international organizations) on the international plane. Treaty law is based on the principle of pacta sunt servanda whereby treaty obligations freely concluded by a State must be respected by that State. 

The term means that “agreements must be kept” and, accordingly, obligations must be performed in good faith. States cannot invoke their national law as an excuse for failing to perform their Treaty obligations towards other Contracting States.

The status of international rules within the domestic legal order is determined by constitutional rules of a State. The internal effect of a treaty is a matter for national law.

Monism and dualism

Monism (advocated amongst others by Hans Kelsen) holds that national legal orders are “creatures” of international law. Monist countries (such as France, Spain, and many others) are those where the view prevails that international legal norms are, upon their ratification, “received” within the national legal order while preserving their nature of international law.

Dualism (advocated by Triepel and Anzilotti) holds that national legal orders are separate legal orders, able to resist the penetration of international norms. Dualist countries (such as the U.K., Germany and Italy) are those believing that international treaties cannot display legal effects within the municipal sphere.

Their norms must be “transplanted” into national law before they can become operational. International treaty norms are not enforceable as international law but they become, after transformation, enforceable by courts as national law – the wording of the norm may or may not have been changed, but the result will be achieved.

What difficulties are posed by dualist States in respect of the primacy of international norms within their legal systems? May such difficulties exist in monist systems?

The E.E.C. Treaty had been transformed into national law in the dualist Member States, Germany and Italy, and thus nothing could prevent their courts from applying the norms contained in the individual cases brought before them.

However, the difficulty for dualist States was the question of primacy. Dualism does not admit the primacy of international law over national law. The relation between a norm of international origin and a purely national norm becomes, through the transformation of the former, a matter pertaining to the internal cohesion of the domestic legal order and conflicts are to ordinary conflict rules applying within that order.

As treaties are transformed by an act of the legislator, they will take precedence over conflicting earlier legislative acts but will be superseded by later legislative acts according to the rule lex posterior derogate priori. This was the case in Germany and Italy at the time of the conclusion of the E.E.C. Treaty.

The other Member States belonged to the monist school. Only in the Netherlands and Luxembourg was the primacy of international law an established practice.

NOTE: This post is based on Jorge Emilio Núñez, Territorial Disputes and State Sovereignty. International Law and Politics (Routledge 2020).

Previous published research monograph about territorial disputes and sovereignty by the author, Jorge Emilio Núñez, Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue London and New York: Routledge, Taylor and Francis Group, 2017.

NEXT POST: the notion of supremacy or primacy of the European Union law.

Monday 27th April 2020

Dr Jorge Emilio Núñez

Twitter: @London1701

https://drjorge.world

THANK YOU all on behalf of Juris North, ASAP UK and Fundação Angelica Goulart

Dear all,
Using my three hats today, on behalf of Juris North, ASAP UK and Fundação Angelica Goulart, MANY THANKS for coming together! The ASAP- Juris North event this weekend went great.

As promised, please find all the video links below. I've added both, Facebook and Youtube because people may have different platforms, internet connections and preferences. Please feel free to share and tag you/your Institutions.

FACEBOOK

DAY 1

https://www.facebook.com/DrJorge.World/videos/132525568367378/

DAY 2

https://www.facebook.com/DrJorge.World/videos/132987324987869/ 

YOUTUBE

DAY 1

https://www.youtube.com/watch?v=vTo71_JgPM0&feature=youtu.be

DAY 2

https://www.youtube.com/watch?v=zqKpe5rLZdQ&feature=youtu.be 

Many thanks to all our speakers and attendees who came together during this very difficult time. We had people from St Petersburg, Sao Paulo, Wuhan, Bergamo, London, Moscow, Manchester, Mexico, and many other places around the world representing different disciplines, several Institutions (only to name a few here in the UK, Manchester, MMU, UCL, Bournemouth and Westminster) and people at large.

One thing I'd like to highlight: the event was completely free for all attendees and each and every speaker presented their work completely freely. We decided to stand together and use the opportunity to send a message of community, calm, solidarity and reconciliation.

Also, as I've mentioned on DAY 2, I'm already planning two action points:

1. PUBLICATION. Any publishing house interested in helping us with this, please contact me directly.

2. ROUNDTABLES:
To follow up what we discussed, I'll send a separate email next week about this. Any expressions of interest to lead (or co-lead) a thematic table would be great. The overall idea would be to have thematic and multi-disciplinary tables, meet up every two weeks or so on Zoom (private meetings, not to be shared live) and produce a manifesto, document, monograph about how we define this NEW MODERNITY by the end of this year/start 2021. Again, details will follow next week.

Last but not least, I'll send a separate email by the end of this week from Fundação Angelica Goulart. Our Team there sent me an email with their gratitude to all of us and put together some words for those who're helping them help others. Just a glimpse: we've already received 4 tons of food and are currently supporting 13 communities in the NE of Brazil

Wishing you all a good week!

Best,

Jorge​

Dr Jorge Emilio Núñez

https://drjorge.world/

Dr Jorge E. Núñez Website: https://drjorge.world Facebook: https://www.facebook.com/DrJorge.World Youtube: https://www.youtube.com/drjorge Twitter: London1701