Weblecture 8 – Introduction to international and European Union law
Consequences:
Solving conflicts:
Conflict rule.
How could such a conflict rule look like?
That depends on the relationship between the EU legal order and the national legal orders.
Lex superior derogate legi inferiori.
The rank decides about the conflict.
Since EU law encompasses more national legal orders, it is higher in rank than any national legal
order.
What if EU law and national law form one legal order without rank?
Lex specialis derogate legi generali.
Les posterior derogate legi priori.
This would, however, mean that any newer national law could set aside EU treaty law.
What would that have for implications for the uniform application of EU law.
What if EU law and the national legal order are distinct legal orders?
Then the simple rank (lex superior), specificity (lex specialis) or time (lex posterior) cannot decide
about the conflict.
In such situation we need:
A claim by one legal order to be applicable within the territory of the other (the EU
perspective)
The other legal order accepting this claim (the national perspective).
The EU perspective:
Case 6/64, Costa v ENEL [1964] ECR 592:
Unsettled energy bill owed by Mr Costa to the Italian National Electricity Board (ENEL).
ENEL was created by a nationalization law from 1962.
Costa was relying on the EEC-Treaty from 1957 claiming that the nationalization violated the
EEC-Treaty.
How to solve the conflict?
Lex posterior: national law wins.
EU law and national law are one legal order without hierarchy.
Lex superior: EU law wins.
EU law and national law are one legal order with hierarchy OR.
EU law and national law are distinct legal orders and EU law claims to be applicable
within Italian territory.
Lex posterior rule doesn’t apply to conflicts between EU law and national law.
Is the lex superior rule the applicable conflict rule?
Case Costa/ENEL insinuated such an understanding.
Case Costa/ENEL introduces the principle of supremacy (others call it: the principle of
primacy): in case of conflicts between EU law and national law, it is EU law that prevails.
But: are the EU and the Member States one unitary single legal order or several distinct legal
orders?
The principle of supremacy has to be understood as the EU legal order’s claim to be
applicable within the territories of the Member States instead of national law.
Legal consequences:
Disapplication of conflicting national law (Case 106/77, Simmenthal II [1978] ECR 629] by all
national authorities (courts, administration).
NOT: invalidation.
National law remains applicable outside of the scope of EU law (e.g. in relation to third
country nationals).
National legislature may still adopt laws that violate EU law.
Principle of supremacy applies to all national law:
Ordinary law (CJEU, Case 6/64, Costa/ENEL [1964] ECR 529).
Constitutional law (CJEU, Case 11/70, IHG [1970] ECR 1125).
Fundamental rights (CJEU, Case 11/70, IHG [1970] ECR 1125).
International Treaties (CJEU, Case 253/87, Matteucci [1988] ECR 5589).
, Costa/ENEL, Case 6/64 [1964] ECR 592:
By creating a Community of unlimited duration, having its own institutions, its own personality, its
own legal capacity and capacity of representation on the international plane and, more
particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from
States to the Community, the Member States have limited their sovereign rights, albeit with
limited fields, and have thus created a body of law which binds both their nationals and
themselves.
Such a measure (subsequent unilateral national measures) cannot be inconsistent with that legal
system. The executive force of Union law cannot vary from one State to another in deference to
subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set
out in article 4(3) TEU and giving rise to the discrimination prohibited by article 18 TFEU.
The national perspective:
National legal orders must accept the claim of the EU legal order to be applicable within their
territories instead of national law (article 4(3) TEU).
Question of national constitutional law.
Netherlands: article 94 Grondwet (monism).
Different for dualistic countries: international law has the rank of ordinary law. These
countries need explicit clauses in their constitutions for accepting the EU legal order’s
supremacy claim (article 23 of the German Grundgesetz or article 88-1 of the French
Constitution).
National rules accepting the EU legal order’s supremacy claim can define limitations to this
acceptation.
National limitations to the EU legal order’s supremacy claim:
Protection of fundamental rights:
BVerfG (Solange I): so long as the EU legal order hasn’t developed an adequate standard
of fundamental rights protection, any EU law can be reviewed (and hence rejected)
against national fundamental rights.
Consequence: CJEU case law on fundamental rights as general principles of EU law.
BVerfG (Solange II): so long as EU law generally ensures an effective protection of
fundamental rights which is to be regarded as substantially similar to the protection of
fundamental rights required unconditionally by the Constitution, the BVerfG will not
exercise its power to review (and reject) the applicability of EU law.
Protection of limitations to Union competences (ultra vires control):
Through ratification Member States have conferred powers upon the EU.
Exceeding the limitations of the competence (ultra vires) is therefore exceeding the limits
of national ratification laws and, by that, violating national law.
Who has to decide whether the limits of Union competences are exceeded?
Protection of national democracy (constitutional identity):
Idea: national parliaments must remain free in making policy choices in an effective and
self-determined way with regard to the remaining national competences.
If there is no more such political space, national democracies and the national rule of law
are deprived of their meaning, which would violate the national constitutional identity of
the Member States.
BVerfG: financial support for other Member States via the European Stability Mechanism
could contain dangers for the national budget of that kind that the German parliament
couldn’t decided autonomously anymore about how to make use of the German budget.
Principle of supremacy:
EU perspective: EU law claims to be applicable within the territories of the Member States instead
of national law in case of conflicts (article 4(3) TEU).
National perspective: this claim is to be recognised under national law in accordance with the
respective constitutional law choices (article 4(3) TEU).
Limitations as regards fundamental rights protection.
Limitations as regards the limits of competence transfer upon the EU.
Limitations as regards an effective national democracy.
Crucial question: who decides on the limitations?
CJEU.
National constitutional courts.
Consequences:
Solving conflicts:
Conflict rule.
How could such a conflict rule look like?
That depends on the relationship between the EU legal order and the national legal orders.
Lex superior derogate legi inferiori.
The rank decides about the conflict.
Since EU law encompasses more national legal orders, it is higher in rank than any national legal
order.
What if EU law and national law form one legal order without rank?
Lex specialis derogate legi generali.
Les posterior derogate legi priori.
This would, however, mean that any newer national law could set aside EU treaty law.
What would that have for implications for the uniform application of EU law.
What if EU law and the national legal order are distinct legal orders?
Then the simple rank (lex superior), specificity (lex specialis) or time (lex posterior) cannot decide
about the conflict.
In such situation we need:
A claim by one legal order to be applicable within the territory of the other (the EU
perspective)
The other legal order accepting this claim (the national perspective).
The EU perspective:
Case 6/64, Costa v ENEL [1964] ECR 592:
Unsettled energy bill owed by Mr Costa to the Italian National Electricity Board (ENEL).
ENEL was created by a nationalization law from 1962.
Costa was relying on the EEC-Treaty from 1957 claiming that the nationalization violated the
EEC-Treaty.
How to solve the conflict?
Lex posterior: national law wins.
EU law and national law are one legal order without hierarchy.
Lex superior: EU law wins.
EU law and national law are one legal order with hierarchy OR.
EU law and national law are distinct legal orders and EU law claims to be applicable
within Italian territory.
Lex posterior rule doesn’t apply to conflicts between EU law and national law.
Is the lex superior rule the applicable conflict rule?
Case Costa/ENEL insinuated such an understanding.
Case Costa/ENEL introduces the principle of supremacy (others call it: the principle of
primacy): in case of conflicts between EU law and national law, it is EU law that prevails.
But: are the EU and the Member States one unitary single legal order or several distinct legal
orders?
The principle of supremacy has to be understood as the EU legal order’s claim to be
applicable within the territories of the Member States instead of national law.
Legal consequences:
Disapplication of conflicting national law (Case 106/77, Simmenthal II [1978] ECR 629] by all
national authorities (courts, administration).
NOT: invalidation.
National law remains applicable outside of the scope of EU law (e.g. in relation to third
country nationals).
National legislature may still adopt laws that violate EU law.
Principle of supremacy applies to all national law:
Ordinary law (CJEU, Case 6/64, Costa/ENEL [1964] ECR 529).
Constitutional law (CJEU, Case 11/70, IHG [1970] ECR 1125).
Fundamental rights (CJEU, Case 11/70, IHG [1970] ECR 1125).
International Treaties (CJEU, Case 253/87, Matteucci [1988] ECR 5589).
, Costa/ENEL, Case 6/64 [1964] ECR 592:
By creating a Community of unlimited duration, having its own institutions, its own personality, its
own legal capacity and capacity of representation on the international plane and, more
particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from
States to the Community, the Member States have limited their sovereign rights, albeit with
limited fields, and have thus created a body of law which binds both their nationals and
themselves.
Such a measure (subsequent unilateral national measures) cannot be inconsistent with that legal
system. The executive force of Union law cannot vary from one State to another in deference to
subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty set
out in article 4(3) TEU and giving rise to the discrimination prohibited by article 18 TFEU.
The national perspective:
National legal orders must accept the claim of the EU legal order to be applicable within their
territories instead of national law (article 4(3) TEU).
Question of national constitutional law.
Netherlands: article 94 Grondwet (monism).
Different for dualistic countries: international law has the rank of ordinary law. These
countries need explicit clauses in their constitutions for accepting the EU legal order’s
supremacy claim (article 23 of the German Grundgesetz or article 88-1 of the French
Constitution).
National rules accepting the EU legal order’s supremacy claim can define limitations to this
acceptation.
National limitations to the EU legal order’s supremacy claim:
Protection of fundamental rights:
BVerfG (Solange I): so long as the EU legal order hasn’t developed an adequate standard
of fundamental rights protection, any EU law can be reviewed (and hence rejected)
against national fundamental rights.
Consequence: CJEU case law on fundamental rights as general principles of EU law.
BVerfG (Solange II): so long as EU law generally ensures an effective protection of
fundamental rights which is to be regarded as substantially similar to the protection of
fundamental rights required unconditionally by the Constitution, the BVerfG will not
exercise its power to review (and reject) the applicability of EU law.
Protection of limitations to Union competences (ultra vires control):
Through ratification Member States have conferred powers upon the EU.
Exceeding the limitations of the competence (ultra vires) is therefore exceeding the limits
of national ratification laws and, by that, violating national law.
Who has to decide whether the limits of Union competences are exceeded?
Protection of national democracy (constitutional identity):
Idea: national parliaments must remain free in making policy choices in an effective and
self-determined way with regard to the remaining national competences.
If there is no more such political space, national democracies and the national rule of law
are deprived of their meaning, which would violate the national constitutional identity of
the Member States.
BVerfG: financial support for other Member States via the European Stability Mechanism
could contain dangers for the national budget of that kind that the German parliament
couldn’t decided autonomously anymore about how to make use of the German budget.
Principle of supremacy:
EU perspective: EU law claims to be applicable within the territories of the Member States instead
of national law in case of conflicts (article 4(3) TEU).
National perspective: this claim is to be recognised under national law in accordance with the
respective constitutional law choices (article 4(3) TEU).
Limitations as regards fundamental rights protection.
Limitations as regards the limits of competence transfer upon the EU.
Limitations as regards an effective national democracy.
Crucial question: who decides on the limitations?
CJEU.
National constitutional courts.
