Supremacy of EU Law

EU LAW

Prof: MOHAMMAD MEHMOOD AHMAD

Compiled By: Muhammad Raees Malik

University of London

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Lect#10 ,11,12 2nd topic/question Supremacy of EU law

Sketch (essay in exam)

1. Definition, nature and scope of sovereignty.

2. EU dimensions (4 top 5 cases).
3. Member states dimensions.
i. UK
 Dualist state.
 ECA-1972
 EUA-2011.
 UK courts cases.
 Brexit.(print material from VLE) (more material and separate question at end of
session)
ii. France
iii. Italy
iv. Germany.

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1. Nature and scope: the establishment of a setup which contains supremacy and authority in not an easy
task.
EU is a union of 27 states merged together for economic gains and has the status of unique legal entity.
In EU there is no federal setup guided by a constitution while comparatively American market is composed
of 52 states and guided by a single constitution and federation.
In EU implied sovereignty concept exists, however supremacy of EU law is a product of judicial activism
(Van Gend case). By supremacy of EU law we means that there is a duty of compatibility but not a master
servant relationship.
Supremacy is only confined to economic field and not to public penal and fiscals laws.
Three dimensions:
i. Pre 1972
ii. Era between 1972 to 2018
iii. Post Brexit (short article)

EU is a supranational organization, which means it will hover over to all of its member states’ economic
matters. There are two sorts of states; dualist and monist. While MS and EU co-exist, there exists a friction
on parliamentary supremacy. A period of stagnation took place in 1957-1986, which established
supremacy of EU law due in judicial activism under the principal Van Gend En Loos. Though, there was no
express clause sovereignty clause but an implied sovereignty concept for two reasons being avoiding a
master servant relationship. It’s not a federation but a Union. As well as, it encompassed a compatibility
duty by efficient communication; in result it distinguishes EU from USA market. Two of the biggest
international market is USA market that comprises of 52 states and EU market that comprises of 27
countries. Earlier there was a concept of stringent EU law supremacy, but it became rigid and it led MS to
deviate from EU. Whereas. EU has evolved to BREXIT or even FREXIT from absolute supremacy.

When it is stated that EU is supreme, we do not imply MS laws are inferior but ultimately MS are subjected
to the duty of compatibility with EU law. Accepting an establishment which imposes its supremacy after
exercising its authority is not an easy task, while the workable formula is to give way to the supremacy of
one. The supremacy of EU law is not contained in any treaty article, but it is a product of judicial activism
as per Van Gend case:

Member states after signing EC Treaty have constituted a new legal order of Intl law for the benefits of
which member states have surrounded their sovereignty within limited fields which may limit to only
economic matters

P. Craig maintained that the time has come that the rift between the member state and EU be considered
in one way or the other. In order to allow EU to emerge and develop it is imperative to resolve this battle
in favour of EU Law

Common market can be distinct from USA market in such a way that, it is not guided by a codified
constitution and much is depended upon interpretation of ECJ. Moreover, there is no express sovereignty
clause in EU, but it is based upon implied sovereignty. There are two dimensions that elaborate
supremacy:

EU perspective

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2. EU Dimensions/Perspective: EU may only work effectively if primacy is given to EU law and that will
enable member states to fulfill the duty of compatibility. ECJ by adopting different techniques such as
direct effect, indirect effect, state liability and supremacy of EU law maintained EU law superiority. ECJ by
introducing these techniques may promote the harmony, certainty and cohesion of EU law.
By supremacy of EU law five implications can be drawn:

Union effective functioning may only be possible by granting primacy to EU law, since accepting one
authority may provide a result which is effective and certain by its very nature. Harmony and Uniformity
are very important. EU supremacy does not indicate suppression of national law, but it means national
law must be made workable and in conformity with EU law, due to which MS have volunteering
surrendered their sovereignty. By drafting doctrines such as direct effect, Indirect Effect, State Liability
and Enforcement Actions, the evidence of supremacy of EU law would be adduced.

EU law is supreme over domestic law and it has five implications:

i. EU law is conferring rights to individuals to which national laws must give effect. (Article 288 TFEU)
ii. National law cannot prevail over EU law.
iii. Domestic court of a MS must follow the interpretation of law given by ECJ and their must exist a
partnership approach between domestic courts ECJ (Article 267 of TFEU – preliminary reference).
iv. The effectiveness of EU must be same in all the member states (uniformity).
v. Member states are under an obligation to amend their national law and bring them, in line with EU
law.

The stance of ECJ:

Costa v Enel & Van Gend: By signing EC treaty member states had submitted part of their supremacy by
which legal order had been created in which states had limited their rights and EU would not be subjected
to domestic legal provisions.

International Handelsgesell Schaft: Community law took precedence even over a fundamental rule in the
German national constitution. Certain provisions of German constitution were incompatible with EU law.
The validity of community measures cannot be judged according to the criteria of national law but in light
of EU law as it would have adverse effect on supremacy of EU law.

Simmenthal: Italian statutes contradict with EU law. It was held that the community law is supreme over
previous and subsequent domestic legislation and national court have a duty to set aside the provisions
of national law which are incompatible with EU law and must apply EU law in its entirety.

(Collective rational of above 4 cases): by signing EC treaty member states have limited sovereignty in
economic matters and a new legal order has been created. The validity of community law is not judged as
per the standards of domestic law but EU law take priority over domestic law.

Larsy v INAST: Not only the national courts but also the administrative agencies would declare national
laws invalid if they are conflicting EU law.

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 Exparte Factortame (No. 2): Spanish fisherman claimed that certain provisions of UK merchant shipping
act 1988 were incompatible with EU law since some conditions were imposed to fish in British waters. The
problem was that the court could not order suspension of an act of parliament and HOL refuse to grant
interim relief. ECJ maintained that in order to ensure the full effectiveness of community law the English
rule preventing the suspension of the act must be set aside. HOL in Exparte Factortame (No.) accepted
ECJ ruling and granted interim relief. So ECJ authorized UK courts to set aside any domestic legislation
which contravenes with EU law. By this case UK courts were empowered to amend and rectify the
offending provisions of merchant shipping act 1988 and bring them in line with EU law.

3. Member states dimensions/perspective.

i. France: (2 to 3 cases in exam): France is monist state which means no enabling domestic legislation
is required for international law to take individual application. Article 55 of French constitution give
international law a rank above domestic law. French legal system has two courts system. Cour de
cassation (highest civil court): it accepts EU law supremacy on the basis of Article 55 of French
constitution. Conseil de estat (supreme administrative court): they were reluctant initially to accept
EU law supremacy but later on they reviewed the stance and held that EU law will take precedence
over national law on the basis of Article 55 of the constitution. (Conditional acceptance of
supremacy)

Vabre v Weigel, Cohn-Benditt [Administrative]: Courts are reluctant to accept EU law supremacy and in
particular has refused to accept that directive can have direct affect

Nicolo: Council d’etat reviewed the supremacy of international law and held that European Union law will
take precedence over subsequent national law on the basis of article 55 of the French constitution

Bosidet: Incompatible national law was declared invalid and in doing so they followed ECJ case law.

French court accepted primacy of European Union law then renouncing is based on French constitution
rather than ECJ’s doctrine of supremacy

ii. Italy: (2 to 3 cases in exam): Italian constitutional court gives primacy to EU law on the basis of
Article 11 of Italian constitution. However one condition is attached to this acceptance that is they
have the right to ensure that fundamental principal of Italian constitution are not being violated.

Frontini: Italian constitutional court reserved the right to ensure that the fundamental principles of Italian
constitutions were not infringed by EU law.

Fragd: This case reaffirmed the position and maintained that if EU law infringed fundamental rights then
it would be declared inapplicable. (Conditional acceptance of sovereignty)

iii. Germany: Germany accepts EU law supremacy provided that it does not lead to severe breach of
fundamental rights.

Cases:

Internationale: the validity of community law could be judged according to the criteria of community law
and not according to the criteria of German constitution.

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Effect of Internationale: the ruling was not accepted by German Federal Constitutional Court (FCC),
because they considered ECJ’s approach as curtailing the power of German law in the ambit of protection
of rights

Solange-I: (German Law Supremacy) The community did not have a codified catalogue of fundamental
rights and community measures would be subjected to fundamental human rights contained in German
constitution

Solange-II: (EU Reasserted its supremacy) FCC acknowledged that community law had its own equivalent
standard of human rights protection.

Burner case: FCC reaffirmed German constitutional sovereignty and its right to review scope of
community competence.

Lisbon Judgment of German FCC-2009: FCC made it clear that it retains its power to review any EU law in
order to ensure that they do not exceeds the limits authorized to them and confirmed the approach taken
by Burner case .

iv. UK

Dualist state: enabling domestic legislation is required to hold individual application of EU law. A European
community Act (ECA) 1972 was the primary law that involved UK into European Union. This act enabled
direct application of EU law within UK.

Section 2 (1 & 4) and section 3 (1) encompass all the rights and duties of community law which are directly
applicable or effective and given legal effect within UK. While section 2 (4) also says all existing and future
enactments shall be interpreted and given effect in line with EU law. Moreover section 3(1) stated
communities’ measures are to be interpreted by domestic judiciary in accordance with the jurisprudence
of the ECJ.

ECA-1972: act by which UK became member of EU.S-2(1), S-2(4) AND S-3(1) rights and duties of EU law
which are directly applicable or effective are given legal effect in UK and domestic law shell be interpreted
in a manner compatible with EU law. (Partnership approach between UK courts and ECJ). ECA 1972 creates
a balance between parliamentary sovereignty and EU law supremacy. ECA 1972 intends to create a
balance between parliamentary supremacy and EU law sovereignty. However, EUA 2011 failed to impact
much due to certain practical difficulties. Theoretically it maybe said the EUA 2011 may have implied
repealed ECA 1972 as it was later in time however as per the case of Thoburn v Sunderland some statutes
are of such fundamental and constitutional nature that they cannot be implied repealed. No doubt the
doctrine of UK’s parliamentary supremacy has been disturbed since the incorporation of EU law and
regards as limitation to UK’s parliamentary supremacy.

 EUA-2011: a failed attempt to restore UK parliamentary sovereignty. It maintains that no further

treaty will have effect in UK until parliament ratifies those treaties. There exists referendum locks
upon powers to be transferred from UK to EU to which British people hold the key. EUA did not
impact much owing to complexity, lack of systematic mechanism, voter fatigue and excessive
funding. ECA has a special constitutional status and being entrenched. There are two views as
regard UK.

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 i. Conservative view: parliamentary sovereignty still exists and EU law experience
application in UK due to act of parliament and UK may withdraw from EU membership at
any time by passing act of parliament.
ii. Liberal view: EU is supreme over economic matters and primacy must be given to EU law
(H.W.R Wade)

UK’s ambit of EU is encompassed by two viewpoints; Conservative view and Liberal view. The conservative
believe that parliamentary sovereignty is still in existence and the UK can step out of EU by a piece of
legislation. Whereas, HWR Wade stated EU law is supreme and UK parliament is no longer sovereign since
parliament succeeded in entrenching the provisions of EU law so as to bind subsequent parliaments and
imposes restrictions on future parliaments.

European Union Act 2011 was adopted which attempted to confine EU law supremacy to a certain extent
and to restore UK’s parliamentary supremacy. It maintained that no further treaty would have effect in
UK until parliament ratifies the treaty. National referendums will be held for certain powers to be
transferred from the UK to the EU and there would be a referendums locks on the treaties to which only
Britain people hold the key. Moreover, a clause was endorsed which explicitly confirmed UK parliament
as sovereign authority. In UK however this sovereignty was being removed from the final text of the act.
The act failed to impact much since frequent referendums would lead to voter fatigue, complexity and
failure to meet economic resources.

 UK courts cases/Judicial approach: Exparti Factortame must apply in this approach. Form notes
3 to 4 cases.

Mcarthy v Smith: Lord Denning stated in interpreting our statutes, we should look at the treaty as an aid;
if our legislation is inconsistent with EU law then it us our duty to give priority to EU law.

Garland v British Rail Engineering: Lord Diplock mentioned that the conflicting provisions of domestic
law must be brought in conformity with EU law for directly applicable measures.

Lister v Fourth Dry Dock: House of Lords interpreted our domestic legislation to give effect to EU law,
complying with its duty under section 2(4) ECA 1972.

Pickstone v Freemans: House of Lords was forced to achieve interpretations which could give effect to s.2
(4) ECA 1972. Thereby House of Lords departed from strict approach and use the purpose of approach to
achieve conformity with EU law.

Duke v GEC Reliance: House of Lords interpretation was in line with ECJ’s interpretation as duty imposed
under article 4 sub-article 3 TEU on national courts was satisfied.

Web v EMO Cargo: Court of Appeal ruled, and House of Lords affirmed that woman who was dismissed
from her employment because of pregnancy was not unlawful. ECJ ruled that dismissal amounted to
gender discrimination House of Lords accepted ECJ stands in Web v EMO cargo no.2.

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Exparte Equal Opportunities Commission: House of Lords in a bold decision stated that national law was
incompatible with the EU law. However, the court confined its ruling to only compatibility issue and did
not extend it further.

 Academic points: as per equilibrium approach there should be a partnership between UK and the
EU and such rift should not be categorically decided in one’s favour (consciences approach)
Paul Craig: rift between EU and member state should be considered in one way and the other and
in order to allow EU to emerge there musty a surrendering of member state supremacy in favour
of EU.

Brexit: Reasons to Brexit: (more material at end of session)

i. UK refugee policy different than other EU member states.

June 2016 referendum by which majority of citizen voted to move out of EU. Britain exit may be
considered as an attempt to regain UK parliament’s sovereignty.

R(Miller) vs Secretary of state: referendum has as political status and not a legal status and in order to
make withdrawal effective an act of parliament is required.

Article 50 of Treaty of Lisbon was triggered: by which method of withdrawal was adopted similar to
joining (three steps rule)

i. The notification of withdrawal (act of parliament).

ii. Negotiations of withdrawal agreement (terms of withdrawal).
iii. Conclusion of such agreement or automatic exit of member state.

WIGHTMAN (2018): ECJ maintained that UK can unilateral revoke Art 50 of Treaty of Lisbon treaty without
putting any condition to it.

EU Withdrawal Act 2018: Hard Brexit (without deal) and soft Brexit (with Deal)

 Possibility of second referendum.

 Probation period till December 2020

Jan-2021 finally departed:

Analysis: The supremacy of EU law is not explicit, but it is implicit in the form of Article 288 TFEU, Article
4(3) TEU, state liability and supremacy of EU law doctrine. National courts have generally accepted
supremacy of EU law, but they have also expressed reservations in relation to fundamental rights,
recognized in national constitutions and pledged to uphold them in face of conflicting EU provisions. It
has been expressed by UK and German courts that they would give precedence to EU law which went
beyond the scope of EU Law, but it is a hypothetical scenario.

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Armin Cuyvers (Stable URL: https://www.jstor.org/stable/10.1163/j.ctt1w76vj2.12)
It should be stressed that so far the differing views on the basis, scope and limits of EU supremacy have
largely remained in the realm of theory and principle. In the day-to-day practice, the primacy of EU law,
certainly over non-constitutional national law, is generally accepted. Moreover, even in cases where
important principles are at stake, national courts generally try to avoid an open conflict, or at least
conflicting judgments. The CJEU, in return, has often incorporated concerns of the national high courts
into its case law, for example improving the protection of fundamental rights or granting a certain leeway
to a Member State on a politically or culturally sensitive issue. The only open conflict so far, where a
national constitutional court has openly declared a judgment of the CJEU ultra vires, is the Landtova
judgment of the Czech Constitutional Court, which concerned the sensitive issue of pensions after the
dissolution of Czechoslovakia into the Czech Republic and Slovakia. From one perspective, precisely this
lack of a formal and linear hierarchy, or ‘pluralism’, within the EU legal order can be seen as valuable in
itself. It can be said to reflect the cooperative nature of the EU that depends on shared values and
dialogue, rather than on force or formal authority. In any event the EU demonstrates that ‘the system can
work’ even where there is disagreement on such a fundamental point. From another perspective,
however, this open disagreement also reflects the still unfinished nature of the EU, and that even now
the EU still seems to be in a transitional phase. In addition, as long as this disagreement remains open,
there is the risk that a more serious conflict arises that does threaten the stability of the EU, for example
in the context or aftermath of Brexit. From this perspective, the search remains on for a more mature and
nuanced doctrine of supremacy that can accommodate sufficient respect for national constitutional
principles whilst still preserving a sufficient level of unity and coherence of EU law. A quest that the EAC
can join, benefiting from the experiences in the EU, when searching for a doctrine of supremacy that fits
within its own legal and political context.