Supremacy of EU Law – The View of the CJEU
Is the EU a Distinct Legal Order?
Initially, there was the idea that the Treaty of Rome was just another international
treaty, and it would require a lot of further steps at a domestic level to implement
the treaty, to transpose the treaty, and make sure that it was effective.
Treaties are silent on this potential conflict.
The Court of Justice has always taken the view that the EEC/EC/EU law is distinctive.
Neither international law nor national law, but a ‘sui generis’ legal order.
A unique legal order, different from public international law, and different
from domestic law.
Legal theorists may differ.
How many legal systems are there in the EU?
The European Court’s Perspective
In relation to issues of clashes between EU law and domestic law, the court is very
hands on.
The court has been looked at as fairly activist, and even perhaps meddling with what
can be seen as issues of political nature.
The emergence of supremacy doctrine.
Van Gen den Loos Case 26/62 (1963).
A simple case about customs duties…
Van Gend en Loos was a company importing chemicals from Germany
into the Netherlands.
VGL was charged an import duty by Customs and Excise.
VGL said that the duty was contrary to the then Art 12 EEC (now Art
30 TFEU) which prohibits customs duties on imports and exports
between member states.
Should the Treaty apply over the national requirement to pay the
duty?
Yes!
‘The…Community constitutes a new legal order of
international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields, and
the subjects of which comprise not only the member states
but also their nationals’.
o This is not just public international law, this is a new
legal order. Member States have abdicated from their
sovereignty in relation to some fields of competence, in
this case, free movement of goods and border control.
o The Treaty and the Member States have afforded
national rights.
o This is a new legal order that imposes obligations on
Member States, also in their relationships with their
nationals, and the nationals of other Member States.
The Court couldn’t sit back and wait for the Dutch authorities
to do something about it.
, o The Court had to say that the Dutch authorities were
violating the Treaty of Rome and had to respect the
rights that the Treaty of Rome created for individual
people, and businesses.
A Special Legal Order Limiting Sovereign Rights
Costa v ENEL Case 6/64 (1964).
Nationalisation of electrical energy in Italy, and a client was not satisfied with
the process of nationalisation so they contested a charge that had been
imposed on all clients in virtue of this nationalisation process.
Court was adamant that it was important to ensure the effectiveness of EU
law.
‘It follows…that the law stemming from the Treaty, an independent
source of law, could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed, without
being deprived of its character as Community law and without the
legal basis of the Community itself being called into question’.
Court insists on the unique nature of EU law.
If there is a conflict between EU law and domestic law, EU law
must prevail.
o Domestic law cannot simply violate EU law with
impunity, otherwise, that would make EU law
ineffective. What would be the point in developing EU
law if Member States would be free to violate it and
introduce measures and legislation that would be in
conflict.
‘The transfer by the states from their domestic legal system to the
Community legal system of the right and obligations arising under the
Treaty carries with it a permanent limitation of their sovereign rights,
against which a subsequent unilateral act incompatible with the
concept of Community law cannot prevail’.
Member States cannot sign a treaty and then act against that
treaty.
It was the Member States own will to sign that treaty, so after
they sign it, they need to respect it.
Is EU Law Supreme Even Over National Constitutional Law and FR’s?
Is the EU a Distinct Legal Order?
Initially, there was the idea that the Treaty of Rome was just another international
treaty, and it would require a lot of further steps at a domestic level to implement
the treaty, to transpose the treaty, and make sure that it was effective.
Treaties are silent on this potential conflict.
The Court of Justice has always taken the view that the EEC/EC/EU law is distinctive.
Neither international law nor national law, but a ‘sui generis’ legal order.
A unique legal order, different from public international law, and different
from domestic law.
Legal theorists may differ.
How many legal systems are there in the EU?
The European Court’s Perspective
In relation to issues of clashes between EU law and domestic law, the court is very
hands on.
The court has been looked at as fairly activist, and even perhaps meddling with what
can be seen as issues of political nature.
The emergence of supremacy doctrine.
Van Gen den Loos Case 26/62 (1963).
A simple case about customs duties…
Van Gend en Loos was a company importing chemicals from Germany
into the Netherlands.
VGL was charged an import duty by Customs and Excise.
VGL said that the duty was contrary to the then Art 12 EEC (now Art
30 TFEU) which prohibits customs duties on imports and exports
between member states.
Should the Treaty apply over the national requirement to pay the
duty?
Yes!
‘The…Community constitutes a new legal order of
international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields, and
the subjects of which comprise not only the member states
but also their nationals’.
o This is not just public international law, this is a new
legal order. Member States have abdicated from their
sovereignty in relation to some fields of competence, in
this case, free movement of goods and border control.
o The Treaty and the Member States have afforded
national rights.
o This is a new legal order that imposes obligations on
Member States, also in their relationships with their
nationals, and the nationals of other Member States.
The Court couldn’t sit back and wait for the Dutch authorities
to do something about it.
, o The Court had to say that the Dutch authorities were
violating the Treaty of Rome and had to respect the
rights that the Treaty of Rome created for individual
people, and businesses.
A Special Legal Order Limiting Sovereign Rights
Costa v ENEL Case 6/64 (1964).
Nationalisation of electrical energy in Italy, and a client was not satisfied with
the process of nationalisation so they contested a charge that had been
imposed on all clients in virtue of this nationalisation process.
Court was adamant that it was important to ensure the effectiveness of EU
law.
‘It follows…that the law stemming from the Treaty, an independent
source of law, could not, because of its special and original nature, be
overridden by domestic legal provisions, however framed, without
being deprived of its character as Community law and without the
legal basis of the Community itself being called into question’.
Court insists on the unique nature of EU law.
If there is a conflict between EU law and domestic law, EU law
must prevail.
o Domestic law cannot simply violate EU law with
impunity, otherwise, that would make EU law
ineffective. What would be the point in developing EU
law if Member States would be free to violate it and
introduce measures and legislation that would be in
conflict.
‘The transfer by the states from their domestic legal system to the
Community legal system of the right and obligations arising under the
Treaty carries with it a permanent limitation of their sovereign rights,
against which a subsequent unilateral act incompatible with the
concept of Community law cannot prevail’.
Member States cannot sign a treaty and then act against that
treaty.
It was the Member States own will to sign that treaty, so after
they sign it, they need to respect it.
Is EU Law Supreme Even Over National Constitutional Law and FR’s?
