Territorial disputes: Northern Ireland (Part 5) [Post 90]

Supremacy (or Primacy) of European Union Law

The principal of primacy means that when an European Union rule applies in a given situation, the conflicting national norm should be set aside. This is called a duty to disapply national law.

 

According to the Court in Simmenthal, “a national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary by refusing of its own motion to apply any conflicting provision of national legislation, and it is not necessary for the court to request or await the prior setting aside of each provision by legislative or other constitutional means.”

 

As the operation of setting aside conflicting national law has to be repeated by the court, and by other courts, in all similar individual cases, the result in practical terms is close to invalidation of the rule. It is important to note, however, that strictly the Court does not require invalidity of the inconsistent national rule, instead the non-application or setting aside of it.

 

A national rule, which is set aside for being inconsistent with Union law, is inoperative only to the extent of this inconsistency; the rule may continue to be applied to cases where it is not inconsistent, or to cases not covered by the E.U. norm, and it may fully apply again if and when the E.U. norm ceases to exist. Where there are inconsistencies between an E.U. norm intending to harmonize national laws and a harmonizing national law, then inconsistencies can only be removed by repealing the national act.

 

Treaty of Lisbon 2007

According art.I-6 of the Treaty establishing a Constitution for Europe: “The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.” This Article incorporated the principle of primacy into the Treaty text. In a Declaration attached to the Treaty it was stated that “Article I-6 reflects existing case law of the Court…and does not cause any additional limitations of sovereignty.” It was held by the Constitutional Courts of France and Spain that the new primacy clause did not bring any changes to the existing relationship between E.U. law and national law.

 

The principle of primacy was omitted from the Treaty of Lisbon 2007 and a much longer Declaration was adopted and attached. According to Declaration no.17: “The Conference recalls that, in accordance with well settled case law of the Court, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of the Member States, under the conditions laid down by the said case law.”

 

According to the Declaration the entry into force of the Treaty of Lisbon did “not in any way change” the Court’s established position as regards to primacy.

 

In an Annex to the Final Act of the Treaty of Lisbon was also the Opinion of the Council Legal Service on the Primacy of E.C. Law (set out before the Treaty): “It results from the case law of the Court that primacy of E.C. law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the nature of the European Community. At the time of the first judgment of this established case law (Costa) there was no mention of primacy in the Treaty. It is still the case today. The fact that the principle of primacy will not be included in the future Treaty shall not in any way change the existence of the principle and the existing case law of the Court.”

 

Next week the blog series will introduce the four fundamental freedoms that have to do with the European Union and its members and are so important for the future relationship between the United Kingdom and Northern Ireland after Brexit.

 

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

Twitter: @London1701

29th June 2018

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

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 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 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 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

Twitter: @London1701

28th June 2018

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

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 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.

 

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

Twitter: @London1701

27th June 2018

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

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 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.

 

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

Twitter: @London1701

26th June 2018