Supremacy of EU Law – The Views of Member States
Do the Member States Accept the Position of the CJEU on Supremacy of EU Law?
How do Member States receive/incorporate EU law into their domestic legal
systems?
What is the hierarchy of legal norms in the Member States?
Is EU law above their constitutions, at the same level as their constitutions, or
below their constitutions?
Who determines ‘Kompetenz-Kompetenz’?
The boundary between EU and national competences and jurisdiction.
Who decides who is competent in a certain field? Should the EU decide this?
Or, should the domestic higher courts decide this?
Court of Justice are likely to argue that they are more inclined to do
this.
Domestic courts might want to retain that power.
What is the role of national supreme courts/constitutional courts in determining
supremacy?
How and why do Member States differ in their approaches?
Depending on their histories, legal systems etc.
Parallel Universes or Collisions?
Monist and Dualist national approaches to international law.
Different Member States address the status and reception of EU law
differently according to domestic constitutional requirements.
Monist approach – member states effectively say that their domestic
legal systems form a single legal system, together with international
law (EU Law).
There is a single legal system which gathers both their
domestic law, European Union law and public international
law.
Dualist approach – member states consider that there are two
different systems (domestic legal system, and EU and international
legal system).
Two separate legal systems that only connect to the extent
that the domestic authorities accept those connections.
Written constitutions adopt techniques to accommodate EU law.
Some constitutions explicitly explain what the position of EU law in their
domestic orders is.
Other constitutions don’t say anything about it.
Other constitutions may say that EU law is completely separate from their
domestic legal systems.
Different constitutions say different things, and what they say about EU law
and incorporation of international law is also very important in terms of the
way they reacted to the principle of supremacy of EU law.
Flashpoints lead to litigation.
, Typically, fundamental rights protection clashing with national constitutions
or when new Treaties are to be ratified.
Maastricht 1992.
Constitutional Treaty 2004.
Lisbon Treaty 2009.
Incorporating EU Law into National Law – UK’s Example
UK adopts the dualist approach to international law.
UK considers the domestic, British legal system, to be separate from
international law, including EU law.
UK legal system only adopts international law to the extent that it
incorporates it.
UK requires some explicit approval by the parliament to accept the EU law
domestically.
If the UK parliament didn’t take any measures, then EU law wouldn’t
have any effect domestically, so the principle of supremacy wouldn’t
operate in the UK.
European Communities Act 1972 section 2(1) gave effect to
EU law domestically.
o ‘All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising under
the EC/EU Treaties, and all such remedies and
procedures from time to time provided for by or under
the treaties, as in accordance with the treaties are
without further enactment to be given legal effect or
used in the UK shall be recognised and available in law,
and be enforced, allowed or followed accordingly; and
the expression ‘enforceable Community right’ and
similar expressions shall be read as referring to one to
which this subsection applies’.
o UK courts must enforce any directly effective EU
measures.
o UK Parliament allowed EU law to be applied
domestically.
This reconciled parliamentary sovereignty in the UK, which is a
key principle of UK constitutional law, with the principle of
supremacy of EU law, which was still applicable to the UK.
This was reversed with the Withdrawal Act.
Challenges from National Courts – Early UK Case Law
Do the Member States Accept the Position of the CJEU on Supremacy of EU Law?
How do Member States receive/incorporate EU law into their domestic legal
systems?
What is the hierarchy of legal norms in the Member States?
Is EU law above their constitutions, at the same level as their constitutions, or
below their constitutions?
Who determines ‘Kompetenz-Kompetenz’?
The boundary between EU and national competences and jurisdiction.
Who decides who is competent in a certain field? Should the EU decide this?
Or, should the domestic higher courts decide this?
Court of Justice are likely to argue that they are more inclined to do
this.
Domestic courts might want to retain that power.
What is the role of national supreme courts/constitutional courts in determining
supremacy?
How and why do Member States differ in their approaches?
Depending on their histories, legal systems etc.
Parallel Universes or Collisions?
Monist and Dualist national approaches to international law.
Different Member States address the status and reception of EU law
differently according to domestic constitutional requirements.
Monist approach – member states effectively say that their domestic
legal systems form a single legal system, together with international
law (EU Law).
There is a single legal system which gathers both their
domestic law, European Union law and public international
law.
Dualist approach – member states consider that there are two
different systems (domestic legal system, and EU and international
legal system).
Two separate legal systems that only connect to the extent
that the domestic authorities accept those connections.
Written constitutions adopt techniques to accommodate EU law.
Some constitutions explicitly explain what the position of EU law in their
domestic orders is.
Other constitutions don’t say anything about it.
Other constitutions may say that EU law is completely separate from their
domestic legal systems.
Different constitutions say different things, and what they say about EU law
and incorporation of international law is also very important in terms of the
way they reacted to the principle of supremacy of EU law.
Flashpoints lead to litigation.
, Typically, fundamental rights protection clashing with national constitutions
or when new Treaties are to be ratified.
Maastricht 1992.
Constitutional Treaty 2004.
Lisbon Treaty 2009.
Incorporating EU Law into National Law – UK’s Example
UK adopts the dualist approach to international law.
UK considers the domestic, British legal system, to be separate from
international law, including EU law.
UK legal system only adopts international law to the extent that it
incorporates it.
UK requires some explicit approval by the parliament to accept the EU law
domestically.
If the UK parliament didn’t take any measures, then EU law wouldn’t
have any effect domestically, so the principle of supremacy wouldn’t
operate in the UK.
European Communities Act 1972 section 2(1) gave effect to
EU law domestically.
o ‘All such rights, powers, liabilities, obligations and
restrictions from time to time created or arising under
the EC/EU Treaties, and all such remedies and
procedures from time to time provided for by or under
the treaties, as in accordance with the treaties are
without further enactment to be given legal effect or
used in the UK shall be recognised and available in law,
and be enforced, allowed or followed accordingly; and
the expression ‘enforceable Community right’ and
similar expressions shall be read as referring to one to
which this subsection applies’.
o UK courts must enforce any directly effective EU
measures.
o UK Parliament allowed EU law to be applied
domestically.
This reconciled parliamentary sovereignty in the UK, which is a
key principle of UK constitutional law, with the principle of
supremacy of EU law, which was still applicable to the UK.
This was reversed with the Withdrawal Act.
Challenges from National Courts – Early UK Case Law
