EU/INTERNATION LAW PROBLEM 7
Literature:
- Chapter II, section section 3 (pp. 51-95)
Case law:
- Case 6/64 Costa v. ENEL (Preliminary Ruling, 15 July 1964)
- Case 106/77 Simmenthal II (Preliminary Ruling, 9 March 1978)
- 26-62 Van Gend & Loos (Preliminary Ruling, 5 February 1963)
- Case 152/84 Marshall (Preliminary Ruling, 26 February 1986)
- Case C-106/89 Marleasing (Preliminary Ruling, 13 November 1990)
- Case C-129/96 Inter-Environnement Wallonie (Preliminary Ruling, 18 December 1997)
- Case C-144/04 Mangold (Preliminary Ruling, 22 November 2005)
1. What is the principle of primacy of EU law?
2. What is direct effect and do EU primary law and general principles of EU have direct
effect?
3. How does secondary law have direct effect in a national legal order?
3.1 the character and autonomy of EU law
International law is regarded as a system that operates between states (the bilateral
relation), thus leaving it up to them to determine the impact of such law on the legal position
of their citizens (the trilateral relation). By contrast, the member states of the EU are no
longer free to determine this trilateral relation. This is due to the autonomy of EU law.
Van Gend en Loos: the application if EU law in the national legal order (the direct effect) is
actually a matter of EU law, and not for member states to decide. Whatever the states have
decided (monist/dualist approach) is irrelevant for EU law = autonomy of EU law
Costa/Enel: EU law has primacy over the national law of member states
It is up to the EU to determine whether its laws have direct effects = autonomy of EU legal
order.
EU law is based on two fundamental characteristics:
1. direct applicability
2. primacy
3.2 the principle of sincere cooperation
The principle of sincere cooperation is laid down in art. 4(3) TEU and concludes that ‘the
member states may not take any action that violates EU law, including the TEU and the TFEU,
as well as all other EU law.
The common foreign security policy, which is governed by a principle of mutual political
solidarity laid down in art 4(2) TEU, forms an exception to this rule.
, The constitutional-instutional aspect of the principle of sincere cooperation
This aspect applies to the formal relations between the member states, the individual EU
institutions, and the Union itself. The main practical implication of this is that member states
must transpose, apply and enforce EU secondary legislation. There are also other
implications, such as the obligation for member states to provide the Commission with all
the information it needs to verify correct application of legislation. Member states must also
assist each other in the application of EU law. EU institutions also have a duty of sincere
cooperation towards the member states. Although art 4(3) TEU does not state so explicitly, it
is states in art 13(2) TEU.
The substantive aspect of the principle of sincere cooperation
The principle of loyal cooperation also has implications for the interpretation of substantive
EU law, and in particular for the case law of the Court, which has extended the scope of the
substantive provisions of the Working Convention.
The first application of the principle of loyal cooperation in conjunction with a substantive
provision of the Operating Treaty concerned the prohibition of cartels in Article 101 TFEU.
The wording of this provision states that the prohibition applies only to agreements between
undertakings, and not to the actions of member states. To prevent a member state from
colluding with a group of companies, the possibility of colluding in this way had to be
prohibited. The Court achieved this by reading Article 101 TFEU in conjunction with the
principle of loyal cooperation. Thus, the useful effect of the treaty provision could not be
deprived by a legal or administrative provision.
The various aspects of the principle of loyal cooperation show that EU law is also prominent
in all areas of national law and government action.
Literature:
- Chapter II, section section 3 (pp. 51-95)
Case law:
- Case 6/64 Costa v. ENEL (Preliminary Ruling, 15 July 1964)
- Case 106/77 Simmenthal II (Preliminary Ruling, 9 March 1978)
- 26-62 Van Gend & Loos (Preliminary Ruling, 5 February 1963)
- Case 152/84 Marshall (Preliminary Ruling, 26 February 1986)
- Case C-106/89 Marleasing (Preliminary Ruling, 13 November 1990)
- Case C-129/96 Inter-Environnement Wallonie (Preliminary Ruling, 18 December 1997)
- Case C-144/04 Mangold (Preliminary Ruling, 22 November 2005)
1. What is the principle of primacy of EU law?
2. What is direct effect and do EU primary law and general principles of EU have direct
effect?
3. How does secondary law have direct effect in a national legal order?
3.1 the character and autonomy of EU law
International law is regarded as a system that operates between states (the bilateral
relation), thus leaving it up to them to determine the impact of such law on the legal position
of their citizens (the trilateral relation). By contrast, the member states of the EU are no
longer free to determine this trilateral relation. This is due to the autonomy of EU law.
Van Gend en Loos: the application if EU law in the national legal order (the direct effect) is
actually a matter of EU law, and not for member states to decide. Whatever the states have
decided (monist/dualist approach) is irrelevant for EU law = autonomy of EU law
Costa/Enel: EU law has primacy over the national law of member states
It is up to the EU to determine whether its laws have direct effects = autonomy of EU legal
order.
EU law is based on two fundamental characteristics:
1. direct applicability
2. primacy
3.2 the principle of sincere cooperation
The principle of sincere cooperation is laid down in art. 4(3) TEU and concludes that ‘the
member states may not take any action that violates EU law, including the TEU and the TFEU,
as well as all other EU law.
The common foreign security policy, which is governed by a principle of mutual political
solidarity laid down in art 4(2) TEU, forms an exception to this rule.
, The constitutional-instutional aspect of the principle of sincere cooperation
This aspect applies to the formal relations between the member states, the individual EU
institutions, and the Union itself. The main practical implication of this is that member states
must transpose, apply and enforce EU secondary legislation. There are also other
implications, such as the obligation for member states to provide the Commission with all
the information it needs to verify correct application of legislation. Member states must also
assist each other in the application of EU law. EU institutions also have a duty of sincere
cooperation towards the member states. Although art 4(3) TEU does not state so explicitly, it
is states in art 13(2) TEU.
The substantive aspect of the principle of sincere cooperation
The principle of loyal cooperation also has implications for the interpretation of substantive
EU law, and in particular for the case law of the Court, which has extended the scope of the
substantive provisions of the Working Convention.
The first application of the principle of loyal cooperation in conjunction with a substantive
provision of the Operating Treaty concerned the prohibition of cartels in Article 101 TFEU.
The wording of this provision states that the prohibition applies only to agreements between
undertakings, and not to the actions of member states. To prevent a member state from
colluding with a group of companies, the possibility of colluding in this way had to be
prohibited. The Court achieved this by reading Article 101 TFEU in conjunction with the
principle of loyal cooperation. Thus, the useful effect of the treaty provision could not be
deprived by a legal or administrative provision.
The various aspects of the principle of loyal cooperation show that EU law is also prominent
in all areas of national law and government action.
