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7/28/2019 Lesson 6_1charts (1) http://slidepdf.com/reader/full/lesson-61charts-1 1/2 2-EuCh-06-Nature_V14_JB.graffle Primacy of EC law 1 1/10 Modified: Tue Feb 02 2010 Tobler Beglinger© All rights reserved. The Nature of EU Law Primacy or supremacy of EU law Chart 6 | 1 Topic: The doctrine of primacy was developed by the ECJ in the context of Community law, based on the special nature of this law. As a result of the Lisbon revision, there is now a declaration on the primacy of EU law. In practice, primacy means that EU law takes precedence over conflicting national law which cannot then be applied. Primacy as doctrine based on case law The EEC/EC Treaty did not explicitly mention the relationship between national law and Community law. However, the ECJ held that Community law takes precedence over national law; case law beginning with Costa (1964). Reasoning of the ECJ: • Community law is a special type of international law; • Community law is an integral part of the national legal orders; • The terms and the spirit of the EEC Treaty; • The need for the uniformity of Community law; • The need for the effectiveness of Community law ( "effet utile"). In the Declaration, the Intergovernmental Conference recalls that "in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law". Generally • Duty of the national courts not to apply national law which conflicts with EU law; similarly, there is no duty for the courts to wait for such national law to be formally set aside; Simmenthal (1978). • Duty of the Member States to repeal conflicting national law, in order to avoid an ambiguous state of affairs; French Merchant Seamen (1974). Specifically Duty of national courts to protect the rights of individuals under EU law. This includes in particular: • Direct effect; see Chart 6/3 ; • Member State liability: duty to compensate for damages caused to individuals due to the existence of conflicting national law; see Chart 12/31. Meaning of primacy As a corollary of the special nature of EU law, national law cannot be incompatible with it. It is thus impossible for the Member States to give precedence to conflicting national law. Thus, precedence of all EU law over all national law: • Even over national constitutional law; Internationale Handelsgesellschaft (1970); • Over both prior and subsequent national law; Simmenthal (1978); • In the framework of interim measures: even when the existence of EU rights is not yet proven ("putative rights"); Factortame (1990). Practical aspects of primacy: Lisbon revision: Declaration No 17 concerning primacy
Transcript of Lesson 6_1charts (1)
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2-EuCh-06-Nature_V14_JB.graffle
Primacy of EC law 1 1/10 Modified: Tue Feb 02 2010
Tobler Beglinger© All rights reserved.
The Nature of EU Law
Primacy or supremacy of EU law Chart 6 | 1
Topic:
The doctrine of primacy was developed by the ECJ in the context of Community law, based on the special nature of
this law. As a result of the Lisbon revision, there is now a declaration on the primacy of EU law. In practice, primacymeans that EU law takes precedence over conflicting national law which cannot then be applied.
Primacy as doctrine based on case law
The EEC/EC Treaty did not explicitly mention the relationship between national law and Community law.However, the ECJ held that Community law takes precedence over national law; case law beginning withCosta (1964).
Reasoning of the ECJ:• Community law is a special type of international law;
• Community law is an integral part of the national legal orders;• The terms and the spirit of the EEC Treaty;• The need for the uniformity of Community law;• The need for the effectiveness of Community law ("effet utile").
In the Declaration, the Intergovernmental Conference recalls that "in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of theTreaties have primacy over the law of Member States, under the conditions laid down by the said case law".
Generally
• Duty of the national courts not to applynational law which conflicts with EU law;similarly, there is no duty for the courts towait for such national law to be formally setaside; Simmenthal (1978).
• Duty of the Member States to repealconflicting national law, in order to avoid anambiguous state of affairs; French Merchant Seamen (1974).
Specifically
Duty of national courts to protect the rights of individuals under EU law. This includes inparticular:
• Direct effect; see Chart 6/3 ;
• Member State liability: duty to compensatefor damages caused to individuals due tothe existence of conflicting national law; seeChart 12/31.
Meaning of primacy
As a corollary of the special nature of EU law, national law cannot be incompatible with it. It is thus impossiblefor the Member States to give precedence to conflicting national law. Thus, precedence of all EU law over allnational law:• Even over national constitutional law; Internationale Handelsgesellschaft (1970);• Over both prior and subsequent national law; Simmenthal (1978);
• In the framework of interim measures: even when the existence of EU rights is not yet proven ("putativerights"); Factortame (1990).
Practical aspects of primacy:
Lisbon revision: Declaration No 17 concerning primacy
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Acceptance of primacy by the Member States 2/10 Modified: Tue Feb 02 2010
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The Nature of EU Law
Acceptance of primacy by the Member States Chart 6 | 2
Topic:
The Member States have accepted the primacy of Community/EU law, though usually this is based on their own
national law and sometimes only with reservations.
E.g. the Belgian "Cour de Cassation" in Le Ski (1971).
E.g. the French "Cour de Cassation" in Vabre (1975), based on theFrench Constitution.
E.g.:• The Italian "Corte Costituzionale" in Frontini (1974):
based on the Italian Constitution, reservation regardinghuman rights;
• The German "Bundesverfassungsgericht " in Solange I (1974) and Solange II (1987): based on the nationalconstitution, reservation regarding the entrenching partof the German Constitution (rule of law, democracy,human rights);
• The English Court of Appeal in Macarthys (1979):based on the European Communities Act 1972,reservation regarding the sovereignty of the nationalParliament;
• The Constitutional Act on Membership of the Republicof Lithuania in the European Union of 13 July 2004:"The norms of the acquis of the European Union shallbe an integral part of the legal order of the Republic of Lithuania. Where these arise from the foundingTreaties of the European Union, the norms of acquisshall apply directly, while in the event of a collisionbetween legal norms, the norms of acquis shall prevailover the law and other legal acts of the Republic of Lithuania."
• Regarding limits, see also the Polish "Trybunał Konstytucyjny " in the Accession Treaty Judgment (2005): reservation regarding the Polish Constitution,which is the supreme law of the land.
Views of the Member States on primacy of Community law (now EU law)
Primacy of (then) EEC
law based on nationallaw
Primacy of (then) EEC
law because of its verynature, i.e. faithful toECJ case law
Primacy of EEC/EC/EU law based on national law, and
only within certain limits
Hardly any obvious problems in practice
• In practice, the view that the primacy of Community law (now EU law), is based onnational law has hardly led to obvious problems in the Member States.
• Problems may emerge on other levels; e.g. refusal of a national last instance court torequest a preliminary ruling on a question on EU law; Köbler (2003).
