European Law Chapter 5 2019-2020
CHAPTER 5
THE UNIQUE NATURE OF THE EUROPEAN UNION LEGAL ORDER
And why again?
A. The EU legal order is ‘integrated’ in that of the Member
States A. EU law has unique effects in domestic legal orders
EU law is special because it is deeply integrated: more than just international law
1. The principle of primacy and its derivatives
1. EU law takes precedence over domestic law
a. Primacy
Definition
EU law takes primacy or precedent over the national law: automatically: no need for
additional incorporation matters in the member states
o Origins & rationale: CJEU, Case 6/64, Costa v. ENEL
1960s and for the first time the CJEU is asked to define the authority of EU-law:
principle introduced in costa v enel case
CJEU is asked to clarify
Costa was shareholder of electricity company, it was nationalized but costa feared
that it could have an effect on his shares he called into question the
nationalization process: he found it illegal because it was breaching rules of
European community (EEC)
Italian government: “new act of national law takes precedent over older
international law” : national law goes above the European law
CJEU disagreed with the government
What is the reasoning of the CJEU that allows it to assert the primacy of EU law?
One of you is picking from the case again, from Costa Enel: well, the treaties has created
an own legal system. That became part of the legal systems of the MS’s and which the
courts are bound to apply. Yes indeed it is a correct answer of a definition provided by
the court itself.
What is the difference between Union law (Community law) and international law?
Law is composed by agreements between the states and The states maintain in many
ways their sovereignty. The states can, in many ways, still decide how they will give
effect to these agreements (in compliance with the rules of the international laws).
On the other hand, Union law, once the treaties are entered into force, automatically
stand above all other national states. The MS have given up their authority within
the context of the Union. Once you sign, you’re bound to comply with them.
1/48
,European Law Chapter 5 2019-2020
How does this relate to the concepts of monism and dualism?
One of you is defining the distinction: ‘monism is the idea that in certain legal systems
internat. Law is directly applicable in the member States. With dualism, states are obliged
to implement the internat. Law into their own legal system before it becomes applicable.
So this is the traditional distinction.
Well, EU law does not apply this distinction it always takes precedent. Even in dual
systems. It is automatically legally binding. One of you: EU law takes over national law
automatically. Now in fact you should know that EU laws takes precedent even in dual
systems. This is the importance of the ruling Costa Enal. But what are the practical
consequences? One of the consequences was explained in the case Simmenthal.
Reach of the primacy of EU law for the dynamics of the EU legal order
CJEU, Case 106/77, Simmenthal
One of the key consequences was established in this case.
Court: “if there is a conflict between a rule of national law and EU law EU wins”
(Costa Enel)
but the practical consequence: the national judge had the duty to set aside the national
law that is in conflict with EU law.
We are being told that is exclusive effect will apply even when the national law is
adopted. And all national authorities are expected to disapply this conflicting law. The
judge has to ignore the national law (if in conflict with EU law). If you failed to set
this aside, you can be blamed.
the CJEU said that EU law takes precedent over any rules (anterior or posterior to EU
act): EU law displaces older national laws but also
o What law?
o Time: EU law takes over earlier law AND posterior law acts
o Rank: irrelevant
o Who is bound?
All national public authorities
Including national judge
any judge who is faced with a dispute that involves a conflict between national
and EU law must give primacy to the EU law
Note: the primacy of EU law also applies to national constitutional norms
EU law prevails over national constitutional laws = very powerful statements because it is the
highest norm of the national system
EU law: if you are a member of EU, EU law takes over the national system, even the
constitution
2/48
,European Law Chapter 5 2019-2020
National constitutional courts and the primacy of EU law
Even a conflict between EU and National constitutional law à EU law wins : this is a point
of great controversy because national courts ,who are supposed to make sure that the
national law confirms with national Constitutional law, consider themselves as the
ultimate warding of the constitutional law that they regulate.
You may not be happy to be told from an external justice (EU court) that EU law shall
bind, win over national Constitutional Law. the reason why is that ever since Costa Enel
there are regular conflicts between the CJEU and national Constitutional Courts who say:
“well listen are you sure that EU law shall prevail over national const. law in that specific
context?” The CJEU almost always answers yes.
they were created as courts whose function it was to protect a political system against
totalities
they must protect the constitution can be difficult that they were told by the CJEU
that the national constitution had to bend to EU law
some national constitutional courts had a problem with it (in dualist states)
Solutions: ex-ante & ex-post
o ex-ante: if there is a conflict between national constitutional law and EU law, one
of the ways to solve it is to prevent it happens by amending the constitution. A
state who becomes a EU state can adopt its constitution to make it in line with the
EU law, so if they become a member, there isn’t a conflict. Some countries also
add a clause in their constitution that states that EU law always wins. there are also
examples of MS who have amended their constitution to exclude a conflict
anticipation: if EU law is changed and when that could affect a national constitutional law
and the member state is capable to anticipate it, the member states may change the
constitution to anticipate a conflict make the constitution compatible
o Ex-post: if there is a conflict, the way is that the CJEU gives a ruling that states
that the EU law wins and then some national courts accept this. Others are a bit
more sceptical and unpleasant. In the lower courts its clear but const. Courts are
always a bit more sensitive.
see arrest warrant of EU – Poland
Framing the problem: Kompetenz-Kompetenz & fundamental rights
o KK: relates to who has to competence to decide what national competences are
transferred to the EU: only the member states can be the guardians, only they have
this competence, the EU on its own cannot expand its competences
they will only agree with the primacy of EU law so long as the EU does not
proceed their competences
one of the biggest jurisdiction who is a voorstander van the primacy of the constitution
over the EU law, is the German const. Court. It is about who has the competence to decide
on the competence of the EU. For many courts the K-K lies with the domestically
constitutional orders. I can accept the primacy so I can always check if the EU has the
competence to prevail in that context. So Germany for example says: not the EU but I
have the K-K. because the EU is bound to the competences that are given by the MS’s.
3/48
, European Law Chapter 5 2019-2020
o fundamental rights: because at the time there was nothing on the protection of
fundamental rights at community level (EU): EU did not offer any protection
and so they called into question the primacy CJEU responded in
international Handeslgeselleschaft case
o case of last week if you’re interested: Tarrico II: it illustrates the dialogue
(or dispute) between the Court of justice of the EU and the constitutional
court of Italy. National Constitutional courts are concerned that if they
accept the primacy of EU law, the fundamental rights of their people are
not enough protected. “Listen we may be ready to accept the full primacy
BUT you in return must show us that you will protect the fundamental
rights. This is what happens in Tarrico II: the international Court had been
asked by the CJEU in order to assure the primacy of the EU law to disapply
the national measure of the criminal court. The primacy requested to
disapply this specific rule. But the court says hang on, this will have the
consequence that the person who is prosecuted, will be subject to more
severe criminal punishments. And in Italy there is this idea that you cannot
punish someone when there is not a legal basis, so you can’t make the
punishment heavier. So there was a conflict between a constitutional
principle and the EU law. The court tried to find a compromise in capital 2
CJEU, Case 11/70, Internationale Handelsgesellschaft
CJEU realized that there were no explicit statements establishing the fundamental
rights but there were the general principles of union law (unwritten sources of law,
rank at same level as EU primary law and protect the rights, derived from national
systems) EU layer of protection
It had largely been addressed by this case. The court:’ please do not worry national
courts, EU law can take primacy over your constitutions because fundamental rights
are and will be protected due to the principle of general principles of EU law. They are
unwritten and found by the CJEU. They reassured national const. courts that this
primacy does not propose a threat because the EU also protects the fundamental rights
by these principles. Even if you don’t have a written fundamental right in the treaties,
it can be protected by these principles. How does the court identify them? What are the
sources? The national constitutional traditions, they are inspired by the national
constitutions. The CJEU says: “do not worry I take into account your levels of
fundamental rights protections. …..
On-going dialogues
many national courts continue to say that they agree the primacy but only as long as
(solange) UE law does not breach the principle KK and complies with the fundamental
rights
Declaration 17 annexed to the final act which adopted the Lisbon Treaty
principle is not explicitly stated: only a reference to it in declaration 17: member states
acknowledge that the principle exist (and they acknowledge the case law of this cases
as costa v enel)
4/48
CHAPTER 5
THE UNIQUE NATURE OF THE EUROPEAN UNION LEGAL ORDER
And why again?
A. The EU legal order is ‘integrated’ in that of the Member
States A. EU law has unique effects in domestic legal orders
EU law is special because it is deeply integrated: more than just international law
1. The principle of primacy and its derivatives
1. EU law takes precedence over domestic law
a. Primacy
Definition
EU law takes primacy or precedent over the national law: automatically: no need for
additional incorporation matters in the member states
o Origins & rationale: CJEU, Case 6/64, Costa v. ENEL
1960s and for the first time the CJEU is asked to define the authority of EU-law:
principle introduced in costa v enel case
CJEU is asked to clarify
Costa was shareholder of electricity company, it was nationalized but costa feared
that it could have an effect on his shares he called into question the
nationalization process: he found it illegal because it was breaching rules of
European community (EEC)
Italian government: “new act of national law takes precedent over older
international law” : national law goes above the European law
CJEU disagreed with the government
What is the reasoning of the CJEU that allows it to assert the primacy of EU law?
One of you is picking from the case again, from Costa Enel: well, the treaties has created
an own legal system. That became part of the legal systems of the MS’s and which the
courts are bound to apply. Yes indeed it is a correct answer of a definition provided by
the court itself.
What is the difference between Union law (Community law) and international law?
Law is composed by agreements between the states and The states maintain in many
ways their sovereignty. The states can, in many ways, still decide how they will give
effect to these agreements (in compliance with the rules of the international laws).
On the other hand, Union law, once the treaties are entered into force, automatically
stand above all other national states. The MS have given up their authority within
the context of the Union. Once you sign, you’re bound to comply with them.
1/48
,European Law Chapter 5 2019-2020
How does this relate to the concepts of monism and dualism?
One of you is defining the distinction: ‘monism is the idea that in certain legal systems
internat. Law is directly applicable in the member States. With dualism, states are obliged
to implement the internat. Law into their own legal system before it becomes applicable.
So this is the traditional distinction.
Well, EU law does not apply this distinction it always takes precedent. Even in dual
systems. It is automatically legally binding. One of you: EU law takes over national law
automatically. Now in fact you should know that EU laws takes precedent even in dual
systems. This is the importance of the ruling Costa Enal. But what are the practical
consequences? One of the consequences was explained in the case Simmenthal.
Reach of the primacy of EU law for the dynamics of the EU legal order
CJEU, Case 106/77, Simmenthal
One of the key consequences was established in this case.
Court: “if there is a conflict between a rule of national law and EU law EU wins”
(Costa Enel)
but the practical consequence: the national judge had the duty to set aside the national
law that is in conflict with EU law.
We are being told that is exclusive effect will apply even when the national law is
adopted. And all national authorities are expected to disapply this conflicting law. The
judge has to ignore the national law (if in conflict with EU law). If you failed to set
this aside, you can be blamed.
the CJEU said that EU law takes precedent over any rules (anterior or posterior to EU
act): EU law displaces older national laws but also
o What law?
o Time: EU law takes over earlier law AND posterior law acts
o Rank: irrelevant
o Who is bound?
All national public authorities
Including national judge
any judge who is faced with a dispute that involves a conflict between national
and EU law must give primacy to the EU law
Note: the primacy of EU law also applies to national constitutional norms
EU law prevails over national constitutional laws = very powerful statements because it is the
highest norm of the national system
EU law: if you are a member of EU, EU law takes over the national system, even the
constitution
2/48
,European Law Chapter 5 2019-2020
National constitutional courts and the primacy of EU law
Even a conflict between EU and National constitutional law à EU law wins : this is a point
of great controversy because national courts ,who are supposed to make sure that the
national law confirms with national Constitutional law, consider themselves as the
ultimate warding of the constitutional law that they regulate.
You may not be happy to be told from an external justice (EU court) that EU law shall
bind, win over national Constitutional Law. the reason why is that ever since Costa Enel
there are regular conflicts between the CJEU and national Constitutional Courts who say:
“well listen are you sure that EU law shall prevail over national const. law in that specific
context?” The CJEU almost always answers yes.
they were created as courts whose function it was to protect a political system against
totalities
they must protect the constitution can be difficult that they were told by the CJEU
that the national constitution had to bend to EU law
some national constitutional courts had a problem with it (in dualist states)
Solutions: ex-ante & ex-post
o ex-ante: if there is a conflict between national constitutional law and EU law, one
of the ways to solve it is to prevent it happens by amending the constitution. A
state who becomes a EU state can adopt its constitution to make it in line with the
EU law, so if they become a member, there isn’t a conflict. Some countries also
add a clause in their constitution that states that EU law always wins. there are also
examples of MS who have amended their constitution to exclude a conflict
anticipation: if EU law is changed and when that could affect a national constitutional law
and the member state is capable to anticipate it, the member states may change the
constitution to anticipate a conflict make the constitution compatible
o Ex-post: if there is a conflict, the way is that the CJEU gives a ruling that states
that the EU law wins and then some national courts accept this. Others are a bit
more sceptical and unpleasant. In the lower courts its clear but const. Courts are
always a bit more sensitive.
see arrest warrant of EU – Poland
Framing the problem: Kompetenz-Kompetenz & fundamental rights
o KK: relates to who has to competence to decide what national competences are
transferred to the EU: only the member states can be the guardians, only they have
this competence, the EU on its own cannot expand its competences
they will only agree with the primacy of EU law so long as the EU does not
proceed their competences
one of the biggest jurisdiction who is a voorstander van the primacy of the constitution
over the EU law, is the German const. Court. It is about who has the competence to decide
on the competence of the EU. For many courts the K-K lies with the domestically
constitutional orders. I can accept the primacy so I can always check if the EU has the
competence to prevail in that context. So Germany for example says: not the EU but I
have the K-K. because the EU is bound to the competences that are given by the MS’s.
3/48
, European Law Chapter 5 2019-2020
o fundamental rights: because at the time there was nothing on the protection of
fundamental rights at community level (EU): EU did not offer any protection
and so they called into question the primacy CJEU responded in
international Handeslgeselleschaft case
o case of last week if you’re interested: Tarrico II: it illustrates the dialogue
(or dispute) between the Court of justice of the EU and the constitutional
court of Italy. National Constitutional courts are concerned that if they
accept the primacy of EU law, the fundamental rights of their people are
not enough protected. “Listen we may be ready to accept the full primacy
BUT you in return must show us that you will protect the fundamental
rights. This is what happens in Tarrico II: the international Court had been
asked by the CJEU in order to assure the primacy of the EU law to disapply
the national measure of the criminal court. The primacy requested to
disapply this specific rule. But the court says hang on, this will have the
consequence that the person who is prosecuted, will be subject to more
severe criminal punishments. And in Italy there is this idea that you cannot
punish someone when there is not a legal basis, so you can’t make the
punishment heavier. So there was a conflict between a constitutional
principle and the EU law. The court tried to find a compromise in capital 2
CJEU, Case 11/70, Internationale Handelsgesellschaft
CJEU realized that there were no explicit statements establishing the fundamental
rights but there were the general principles of union law (unwritten sources of law,
rank at same level as EU primary law and protect the rights, derived from national
systems) EU layer of protection
It had largely been addressed by this case. The court:’ please do not worry national
courts, EU law can take primacy over your constitutions because fundamental rights
are and will be protected due to the principle of general principles of EU law. They are
unwritten and found by the CJEU. They reassured national const. courts that this
primacy does not propose a threat because the EU also protects the fundamental rights
by these principles. Even if you don’t have a written fundamental right in the treaties,
it can be protected by these principles. How does the court identify them? What are the
sources? The national constitutional traditions, they are inspired by the national
constitutions. The CJEU says: “do not worry I take into account your levels of
fundamental rights protections. …..
On-going dialogues
many national courts continue to say that they agree the primacy but only as long as
(solange) UE law does not breach the principle KK and complies with the fundamental
rights
Declaration 17 annexed to the final act which adopted the Lisbon Treaty
principle is not explicitly stated: only a reference to it in declaration 17: member states
acknowledge that the principle exist (and they acknowledge the case law of this cases
as costa v enel)
4/48
