Tutorial 5: MORE SUPREMACY
Learning goals:
How is the relation between Eu law and international law ? also between EU law and
constitutional law…
Study the perspective of the judges
Supremacy of EU law started with the case Costa V ENEL.
This was followed by the Case 11/70 Internationale Handelsgesellschaft stating that every
secondary EU law was a higher form of law than the constitutional law of a member
state, which has higher status in the national legal system than ordinary source statutes.
National courts discretion to refer:
When questions are raised in national courts which concern EU law, the national court
has a choice of whether to refer to the CJEU following article 267 (2) TFEU. The
decision to refer a matter to the CJEU for interpretation lies with the national court. It
cannot be compelled to make reference, either by the parties concerned or the CJEU
itself, in a situation where article 267 (2) TFEU applies. Any reference made by national
court, however must be one genuinely needed for the case in hand.
There are several other things to remember for discretionary references. It is important
when the reference is made, as long as the case is still active, see Simmenthal judgments.
Court will usually make a preliminary judgement in which they will conclude with the
questions they wish to address to the CJEU, and then make final judgement once the
reference has been returned to them the CJEU with their answers to questions.
Issue:
• Wether international law and EU law can be applied, invoked after constitutional
amendment adopted by the Dutch government which provides that international
treaties have precedence over domestic legislation.
• Aarhus convention (international treaty transposed into EU law): provides rights
for the public to access information related to the environment, environmental
matters
➡ Can the national judge invoke EU law based on the constitutional changes (which
provides that international treaties have precedence over domestic legislation)?
Rules:
Case laws of the CJEU: COSTA v ENEL, INT. HANDELGESELSCHAFT,
SIMENTHAL
1 of 5
, Constitutional revision -> The Netherlands became a dualist state: in practice for
international law to enter into effect within Dutch borders a process of transposition
-> has to be approved by Dutch legislators. Otherwise international law has no effect
What is the validity of the Aarhus Convention: invalid in case the gov does not transpose
the law (only according to national and international aspect) -> means the judge
cannot invoke the international treaty
HOWEVER…
EU law works differently -> established in case-law of the CJEU such as COSTA V
ENEL case
✴ COSTA V ENEL: EU law always takes precedent over national law in case of
conflict btw the 2 (doesn’t matter wether dualist or monist state, very rare for states
to be purely monist or dualist, often « mix » of both)
✴ Why was this established?
◦ Goal of introducing principle of supremacy: harmonise EU law, push
European integration
✴ International HANDELGESELSCHAFT: Validity of EU law can only depend
on validity of EU law -> even national constitutional law can’t be invoked to
challenge the supremacy of a directly applicable EU law, in case of conflict btw
the 2 EU law always wins
‣ HOWEVER: case accepts that if EU law infringes, violates fundamental
rights EU law has to be reviewed
▪ However: presumption that EU fundamental rights agree with
fundamental rights of national constitutions so usually
▪ Solange (II) case
▪ Confirmed in OMEGA case -> EU law has to respect fundamental
rights
◦ Parag 3 & 4 of the case → statement of the court
✴ SIMENTHAL:
‣ Context: SIMENTHAL importing and exporting of beef (canned meat)
which Italian gov imposes taxes on
▪ Take Italian state to court -> goes against community law
▪ Italian state appeals
▪ Judges asks for preliminary ruling to CJEU (2 Q.)
▪ Parag.7(a): can the judge (local judge, not constitutional court)
directly disapply national law to enforce EU law or does the
constitutional court need to disapply national law first?
▪ According to italian law national law has to be applied
while CJEU case law claims EU law has to be appplied
directly
2 of 5
Learning goals:
How is the relation between Eu law and international law ? also between EU law and
constitutional law…
Study the perspective of the judges
Supremacy of EU law started with the case Costa V ENEL.
This was followed by the Case 11/70 Internationale Handelsgesellschaft stating that every
secondary EU law was a higher form of law than the constitutional law of a member
state, which has higher status in the national legal system than ordinary source statutes.
National courts discretion to refer:
When questions are raised in national courts which concern EU law, the national court
has a choice of whether to refer to the CJEU following article 267 (2) TFEU. The
decision to refer a matter to the CJEU for interpretation lies with the national court. It
cannot be compelled to make reference, either by the parties concerned or the CJEU
itself, in a situation where article 267 (2) TFEU applies. Any reference made by national
court, however must be one genuinely needed for the case in hand.
There are several other things to remember for discretionary references. It is important
when the reference is made, as long as the case is still active, see Simmenthal judgments.
Court will usually make a preliminary judgement in which they will conclude with the
questions they wish to address to the CJEU, and then make final judgement once the
reference has been returned to them the CJEU with their answers to questions.
Issue:
• Wether international law and EU law can be applied, invoked after constitutional
amendment adopted by the Dutch government which provides that international
treaties have precedence over domestic legislation.
• Aarhus convention (international treaty transposed into EU law): provides rights
for the public to access information related to the environment, environmental
matters
➡ Can the national judge invoke EU law based on the constitutional changes (which
provides that international treaties have precedence over domestic legislation)?
Rules:
Case laws of the CJEU: COSTA v ENEL, INT. HANDELGESELSCHAFT,
SIMENTHAL
1 of 5
, Constitutional revision -> The Netherlands became a dualist state: in practice for
international law to enter into effect within Dutch borders a process of transposition
-> has to be approved by Dutch legislators. Otherwise international law has no effect
What is the validity of the Aarhus Convention: invalid in case the gov does not transpose
the law (only according to national and international aspect) -> means the judge
cannot invoke the international treaty
HOWEVER…
EU law works differently -> established in case-law of the CJEU such as COSTA V
ENEL case
✴ COSTA V ENEL: EU law always takes precedent over national law in case of
conflict btw the 2 (doesn’t matter wether dualist or monist state, very rare for states
to be purely monist or dualist, often « mix » of both)
✴ Why was this established?
◦ Goal of introducing principle of supremacy: harmonise EU law, push
European integration
✴ International HANDELGESELSCHAFT: Validity of EU law can only depend
on validity of EU law -> even national constitutional law can’t be invoked to
challenge the supremacy of a directly applicable EU law, in case of conflict btw
the 2 EU law always wins
‣ HOWEVER: case accepts that if EU law infringes, violates fundamental
rights EU law has to be reviewed
▪ However: presumption that EU fundamental rights agree with
fundamental rights of national constitutions so usually
▪ Solange (II) case
▪ Confirmed in OMEGA case -> EU law has to respect fundamental
rights
◦ Parag 3 & 4 of the case → statement of the court
✴ SIMENTHAL:
‣ Context: SIMENTHAL importing and exporting of beef (canned meat)
which Italian gov imposes taxes on
▪ Take Italian state to court -> goes against community law
▪ Italian state appeals
▪ Judges asks for preliminary ruling to CJEU (2 Q.)
▪ Parag.7(a): can the judge (local judge, not constitutional court)
directly disapply national law to enforce EU law or does the
constitutional court need to disapply national law first?
▪ According to italian law national law has to be applied
while CJEU case law claims EU law has to be appplied
directly
2 of 5
