Supremacy
Relationship between Supremacy and Direct Effect:
- Dougan proposes two models:
o “Primacy Model”:
Supremacy is capable of producing independent “exclusionary effects”
within the national legal order, where a provision of domestic law is
incompatible with Community law.
Direct effect is only relevant if “substitutionary effects” are at issue, where
Community law is invoked as a novel source of rights or obligations not
already recognised under national law.
o “Trigger Model”:
For any provision of Community law to produce an independent effect within
the national legal system (whether exclusionary or substitutionary), it must
satisfy the threshold criteria for having direct effect.
The principle of supremacy is thus a consequence of and dependent upon that
of direct effect.
- CJEU has endorsed the trigger model – made clear that supremacy is dependent on direct
effect.
o C-573/17 Daniel Adam Poplawski – national court asked whether the principle of the
primacy of EU law must be interpreted as meaning that it imposes an obligation on a
MS court to disapply a provision of national law, which is incompatible with the
framework decision.
Concluded that a framework decision did not have direct effect, and therefore
the national court was not obliged to disapply a national law solely because
of inconsistency with the framework decision.
BUT – the national court was still obliged to interpret national law in
conformity with the framework decision pursuant to Von Colson principle of
indirect effect.
- BUT – the primacy model best explains the case law on incidental horizontal effect.
o National law that is inconsistent with EU law has been excluded, even though the EU
provision does not have horizontal direct effect as between the parties to the case.
o The distinction between exclusion and substitution effect is problematic.
First – Dougan – “surely every exclusion implies some form of substitution,
and vice versa, since there can in fact be no such thing as a legal vacuum” –
the distinction’s reliance on the existence of such vacuum means the
distinction is itself inherently flawed.
Second (follows from this) – Craig – it is not clear why an exclusionary
effect is more desirable than a substitutionary one – it simply does not reflect
the reality that Dougan notes.
Craig and de Burca: premised on the assumption that to ‘exclude’
national law that is inconsistent with a directive is somehow less
intrusive, or less far-reaching in its consequences for the individual,
than ‘substitution’ of something new within the national legal order.
There is no reason why this has to be so.
The very fact that the directive does not impose obligations directly on the
individual, but nonetheless has the legal effects on private law relations
exemplified by Unilever, is more burdensome for the private firm, which may
have no knowledge of the breach of the obligation by the state.
Differing Views of Supremacy:
1. Outline of differing approaches/understandings:
The supremacy of EU law has long been a controversial topic.
, Essay will analyse the approach and understanding of this principle adopted
in both the Court of Justice (CJEU) and Member State courts, namely in
Germany and Denmark.
It will be shown that while the CJEU sees supremacy as inherent in the system of the
EU, gifted to them through the surrender of sovereign rights by the Member States
upon entry into the EU, Member States see supremacy as ultimately determined by
national laws.
The EU sees supremacy as this general principle gifted to them when the
Member States signed up to the EU. They see it as unlimited and have
therefore taken it as an invitation to develop (Internationale).
Whereas MS, because it derives from the MS signing up to the EU,
see it as subject to national law and therefore may/can be restricted.
This is a serious problem.
Not only has the discrepancy in understanding of supremacy allowed
the CJEU to push it too far, but also the animosity that it has
inevitably caused between the CJEU and MS courts has prevented
the preliminary reference procedure from being used to its full
potential and prevents a move towards the much-needed idea of
constitutional pluralism.
2. Principle of EU Supremacy – EU Perspective:
The case of C-6/64 Costa v ENEL has long been regarded as laying down the
principle of supremacy of EU law.
In other words, it was held that EU law is not overridden by national
legislation.
The Court reasoned that the Treaty of Rome created its own legal system
which, on the entry into force of the Treaty, became an integral part of the
legal systems of the MS and which their courts are bound to apply.
Such case is perhaps the clearest evidence of the CJEU’s understanding of the
principle of supremacy.
While the Advocate General in Costa recognised that he was unable to find
any basis in the Treaties for the precedence of EU law, he held that it was
derived from the purpose of the EU (or the European Economic Community
as it was then).
In the Court’s view, the principle of supremacy was inherent in the system of
the EU, since there could not be the creation of the common market if each
MS applied and interpreted EU law however it saw fit.
The Court emphasised that the principle of supremacy flowed from the
agreement made by the MS when they joined the Union, namely the
agreement to limit their sovereign rights, and as such the principle of
supremacy was inherent in the constitution of the EU.
The Court took this as an invitation to widen the principle of supremacy.
This is most notable in C-11/70 Internationale Handelsgesellschaft – in
which the CJEU held that not even a fundamental rule of national
constitutional law could be invoked to challenge the supremacy of a directly
applicable EU law.
3. Principle of EU Supremacy – National Courts Perspective:
The national courts of the MS, however, adopt a very different understanding of the
principle of supremacy.
While the CJEU in Costa above took the agreement made by MS upon
joining the Union as an invitation to develop a wide principle of supremacy,
the MS have seen this agreement as a limitation on the principle of EU
supremacy.
This is perhaps seen most clearly in the case of Honeywell in the German
Constitutional Court.
Relationship between Supremacy and Direct Effect:
- Dougan proposes two models:
o “Primacy Model”:
Supremacy is capable of producing independent “exclusionary effects”
within the national legal order, where a provision of domestic law is
incompatible with Community law.
Direct effect is only relevant if “substitutionary effects” are at issue, where
Community law is invoked as a novel source of rights or obligations not
already recognised under national law.
o “Trigger Model”:
For any provision of Community law to produce an independent effect within
the national legal system (whether exclusionary or substitutionary), it must
satisfy the threshold criteria for having direct effect.
The principle of supremacy is thus a consequence of and dependent upon that
of direct effect.
- CJEU has endorsed the trigger model – made clear that supremacy is dependent on direct
effect.
o C-573/17 Daniel Adam Poplawski – national court asked whether the principle of the
primacy of EU law must be interpreted as meaning that it imposes an obligation on a
MS court to disapply a provision of national law, which is incompatible with the
framework decision.
Concluded that a framework decision did not have direct effect, and therefore
the national court was not obliged to disapply a national law solely because
of inconsistency with the framework decision.
BUT – the national court was still obliged to interpret national law in
conformity with the framework decision pursuant to Von Colson principle of
indirect effect.
- BUT – the primacy model best explains the case law on incidental horizontal effect.
o National law that is inconsistent with EU law has been excluded, even though the EU
provision does not have horizontal direct effect as between the parties to the case.
o The distinction between exclusion and substitution effect is problematic.
First – Dougan – “surely every exclusion implies some form of substitution,
and vice versa, since there can in fact be no such thing as a legal vacuum” –
the distinction’s reliance on the existence of such vacuum means the
distinction is itself inherently flawed.
Second (follows from this) – Craig – it is not clear why an exclusionary
effect is more desirable than a substitutionary one – it simply does not reflect
the reality that Dougan notes.
Craig and de Burca: premised on the assumption that to ‘exclude’
national law that is inconsistent with a directive is somehow less
intrusive, or less far-reaching in its consequences for the individual,
than ‘substitution’ of something new within the national legal order.
There is no reason why this has to be so.
The very fact that the directive does not impose obligations directly on the
individual, but nonetheless has the legal effects on private law relations
exemplified by Unilever, is more burdensome for the private firm, which may
have no knowledge of the breach of the obligation by the state.
Differing Views of Supremacy:
1. Outline of differing approaches/understandings:
The supremacy of EU law has long been a controversial topic.
, Essay will analyse the approach and understanding of this principle adopted
in both the Court of Justice (CJEU) and Member State courts, namely in
Germany and Denmark.
It will be shown that while the CJEU sees supremacy as inherent in the system of the
EU, gifted to them through the surrender of sovereign rights by the Member States
upon entry into the EU, Member States see supremacy as ultimately determined by
national laws.
The EU sees supremacy as this general principle gifted to them when the
Member States signed up to the EU. They see it as unlimited and have
therefore taken it as an invitation to develop (Internationale).
Whereas MS, because it derives from the MS signing up to the EU,
see it as subject to national law and therefore may/can be restricted.
This is a serious problem.
Not only has the discrepancy in understanding of supremacy allowed
the CJEU to push it too far, but also the animosity that it has
inevitably caused between the CJEU and MS courts has prevented
the preliminary reference procedure from being used to its full
potential and prevents a move towards the much-needed idea of
constitutional pluralism.
2. Principle of EU Supremacy – EU Perspective:
The case of C-6/64 Costa v ENEL has long been regarded as laying down the
principle of supremacy of EU law.
In other words, it was held that EU law is not overridden by national
legislation.
The Court reasoned that the Treaty of Rome created its own legal system
which, on the entry into force of the Treaty, became an integral part of the
legal systems of the MS and which their courts are bound to apply.
Such case is perhaps the clearest evidence of the CJEU’s understanding of the
principle of supremacy.
While the Advocate General in Costa recognised that he was unable to find
any basis in the Treaties for the precedence of EU law, he held that it was
derived from the purpose of the EU (or the European Economic Community
as it was then).
In the Court’s view, the principle of supremacy was inherent in the system of
the EU, since there could not be the creation of the common market if each
MS applied and interpreted EU law however it saw fit.
The Court emphasised that the principle of supremacy flowed from the
agreement made by the MS when they joined the Union, namely the
agreement to limit their sovereign rights, and as such the principle of
supremacy was inherent in the constitution of the EU.
The Court took this as an invitation to widen the principle of supremacy.
This is most notable in C-11/70 Internationale Handelsgesellschaft – in
which the CJEU held that not even a fundamental rule of national
constitutional law could be invoked to challenge the supremacy of a directly
applicable EU law.
3. Principle of EU Supremacy – National Courts Perspective:
The national courts of the MS, however, adopt a very different understanding of the
principle of supremacy.
While the CJEU in Costa above took the agreement made by MS upon
joining the Union as an invitation to develop a wide principle of supremacy,
the MS have seen this agreement as a limitation on the principle of EU
supremacy.
This is perhaps seen most clearly in the case of Honeywell in the German
Constitutional Court.
