1. EUROPEAN UNION LAW AND INSTITUTIONS 4
Biancamaria Raganelli
Università degli Studi di Roma Tor Vergata

2. Priority – primacy legal supremacy

3. Topics and case law Supremacy – absolute supremacy
Costa v. Enel (1964)
International Handelsgesells (1970)
Simmental (1977)
Marleasing (1991)
Factortame (1990)

4. introduction
Since European Union law is DIRECTLY APPLICABLE in Member States, it must be applied along side national law by national authorities (Courts, administrations, authorities)
Since Eu law has DIRECT EFFECT, it might come into conflict with national law in a specific situation.

5. priority
IN CASE OF CONFLICT between national and EU law, which law is to prevail?
The EU Treaty does not contain any guidance on the question of priorities.
The matter has been left to be decided by the Courts of Member States, assisted by the ECJ.

6. In the international law
Where 2 legislative wills come into conflict, each legal order must determine HOW these conflicts are to be resolved.
Centralised solution
Decentralised solution

7. Union competences What is the rule ?
Union versus Member States: how to regulare competences?

8. Town law breaks Country law Country law breaks Common law
EUROPEAN solution
The Treaty of Lisbon clarifies the division of competences between the EU and its Member Countries. Alongside the principles of subsidiarity and proportionality, sits the principle of conferral (art. 5 TEU).
This principle means that the EU can only act within the limits of the competences that have been conferred upon it by the EU treaties.
These competences are defined in articles 2-6 of the Treaty on the Functioning of the EU (TFEU).
Town law breaks Country law Country law breaks Common law
In case of legislative conflict, supremacy was thus given to the rule of the smaller political entity

11. Art. 5 TUE (ex Art. 5 TEC)
The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

12. exclusive (Art. 3 TFEU)
only the EU can act in these areas e.g. customs union & trade policy;
shared between the EU and EU countries (Art. 4 TFEU)
EU countries can act only if the EU has chosen not to, e.g. cohesion policy, energy & environment. EU countries may ask the Commission to repeal an adopted legislative act in one of the shared areas so as to better ensure compliance with the principles of subsidiarity and proportionality (Declaration No 18 annexed to the Treaty of Lisbon);
EU sets up arrangements within which EU countries must coordinate policy (Art. 5 TFEU) e.g. economic policy;
EU can support, coordinate or supplement EU countries' actions (Art. 6 TFEU) e.g. culture & tourism.

13. Direct effect and supremacy: not two sides of the same coin
The supremacy of a legal norm implies its direct effect, but direct effect does not imply supremacy
Each legal order decides which law prevails

14. SUPREMACY:
Duty for a national court to set aside (disapply) the national norm conflicting with directly effective EU norm.

15. Direct effect versus supremacy
Absolute supremacy – all law from one legal order is supreme to all other law.
European perspective of legal supremacy: Union law prevails over national law.
National perspective of legal supremacy: Some national laws prevail over Union law.

16. Primacy
The primacy and direct effect norms are not formulated in the text of the Treaties
They result essentially from the case law of the ECJ and from the reaction by the national courts.

17. The position of ecj ? 2 important cases: Costa v. ENEL (1964)
Internationale Handelsgesellschaft (1970)

18. Supremacy over internal law of the member states
Costa v. ENEL: European Judiciary asked whether national legislature adopted after could prevail over European law.
Court created a principle of European law which stated that European law would reign supreme over national law because its executive force should not vary between States.

19. Supremacy over internal law of the member states
Internationale Handelsgesellschaft: a German administrative court raised the question as to whether human rights, included in the fundamental structural principles of national constitutions, had supremacy over European law.
Court ruled that European law remained supreme, because otherwise it would lose its uniformity and efficiency.
The Court views the supremacy of European law as absolute: the whole of European law prevails over the whole of national law.

20. In The original treaties
no formaliSation of the supremacy
DID THIS MEAN THAT SUPREMACY WAS A MATTER TO BE DETERMINED BY THE NATIONAL LEGAL ORDERS?
OR, WAS THERE A UNION DOCRINE OF SUPREMACY?

21. European consTitution
FORMALIZATION OF THE SUPREMACY PRINCIPLE
Article I-6 of the European Constitution stated that "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.”
However, the Constitution was never ratified, but its replacement, the Treaty of Lisbon did include a declaration on primacy attached at the end.

22. Lisbon Treaty Declaration n. 17 to the Lisbon Treaty:

Declaration n. 17 to the Lisbon Treaty:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of member states, under the conditions laid down by the said case law.”
Annex attached to this Final Act: Opinion of the Council Legal Service on the primacy of EC law as set out in /07 (JUR 260).

23. Opinion of the Council Legal Service
(22 June 2007)
It results from the case-law of the ECJ that primacy of EU law is a cornerstone principle of Union law. According to the Court, this principle is inherent to the specific nature of the EC. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the ECJ.

24. TWO PROSPECTIVE ON THE SUPREMACY QUESTION
EUROPEAN PROSPECTIVE
- Absolute supremacy
- All union law prevails over all national law
NATIONAL PROSPECTIVE
- Relative supremacy
- Some national law is considered to be beyond the supremacy of the European law

25. Within National prospective
EUROPEAN LAW CANNOT VIOLATE NATIONAL FUNDAMENTAL RIGHTS
Some MS Supreme Courts have fought a battle over Human rights within Union legal order. Es. Genrman Constitutional Court.
MS have the last word with regard to the competences of the Union.
Doctrine of “Kompetenz-Kompetenz”

26. Kompetenz-kompetenz
An arbitral tribunal is allowed to make a decision on whether it has jurisdiction over an issue that needs to be settled and whether an arbitration agreement is valid.
Some MS believe that the principle could be applied in EU system: a national Court always has the last world on questions of competence.

27. EUROPEAN PROSPECTIVE: ABSOLUTE SUPREMACY OVER INTERNAL LAW OF THE MEMBER STATES
Case COSTA V. ENEL (1964)
Case INTERNATIONALE HANDELSGESELLSCHAFT (1970)

28. Legal threat to the unity of EU legal order
The strong dualist tradition within some MS in 1958 posed a serious legal threat to the unity of the Union legal oder:
The EU law depens on a national act “trasposing” the E. Treaties.
If this was a parlamentary act, any subsequent parliamentary acts could repeal the trasposition law.
An old parliament cannot bind a new one: any new parliamentary act could prevail over the older EU act.
ECJ insisted in a lot of cases law European legal order prevails over national law, including Constitutions.

29. Legal interpretation The ECJ has encouraged
legal interpretation in light of EU law by courts in Member States as an alternative to repealing or amending laws of Member States which conflict with European Union law.

30. Written constitutions
A source of tension has historically been the relationship between Constitutions of member states and European Union law.
Unlike the UK, most continental European MS have written Constitutions and some have constitutional courts with the exclusive power to interpret the national constitution.

31. costa v. enel
Mr Costa was an Italian citizen opposed to national law nationalising energy. He had shares in a private corporation subsumed by the nationalised company, ENEL. He refused to pay his electricity bill in protest. In the subsequent suit brought to Italian courts by ENEL, he argued that nationalisation infringed EC law distorting the market.
The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make.

32. Costa v. enel
The question: Could National legislation adopted after 1958 prevail over the original Treaties?
Italian dualist tradition: E. Treaties (as other international law) had been trasposed by national legislation, that could be derogated by subsequent national legislation.

33. Could Member States unilaterally determine the status of European law in their national legal order?
ECJ: NO

34. ECJ in the case Costa v. enel
In case of conflict between a national norm and a European norm:
The novelty of Costa v ENEL (1964)
“National courts must give precedence to EC law over national law in the case of conflict”

35. ECJ in the case Costa v. enel
The ECJ held that: - EU law is different by international law - in situations where there is a conflict between the laws of MS and European Union law, EU LAW PREVAILS, because "a subsequent unilateral act incompatible with the concept of the Community cannot prevail".

36. “By contrast with ordinary international Treaties, The EU Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal system of the MS and which their couts are bound to apply”

37. “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”.

38. The consequence
EUROPEAN UNION LAW WOULD REIGN SUPREME OVER NATIONAL LAW, SINCE ITS EXECUTIVE FORCE MUST NOT VARY FROM ONE STATE TO ANOTHER

39. HOW SUPREME IS EUROPEAN LAW?
The fact that E. Treaties prevailed over national legislation did not automatically imply that ALL european secondary law would prevail over all national law.
Is it possible a “nuanced” solution for national constitutional law?

40. Is it possible a relative scope of the supremacy doctrine?
ECJ. NO

41. ECJ IN THE CASE INTERNATIONALE HANDELSGESELLSCHAFT
A German administrative court had doubted EU law could violate foundamental rights granted by German constitution and raised the question to ECJ.
The ECJ disagree.

42. ECJ IN THE CASE INTERNATIONALE HANDELSGESELLSCHAFT
“ Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by institutions of the union would have an adverse effect on the UNIFORMITY and EFFICENCY of the European law”

43. “ The validity of European laws could thus not be affected even by the most fundamental norms within the Member States” The ECJ vision of the supremacy of the European law is an absolute one: THE WHOLE OF THE EUROPEAN LAW PREVAIL OVER THE WHOLE OF NATIONAL LAW

44. the debate IN MS
A - The ultimate judgement has to be left to the court of MS, rather than the European Union institutions themselves. Member states remain the "Master of the Treaties", and the basis for EU law's effect.
B - Some Countries decided to write the precedence of Union law into their constitutions (IRELAND)

45. Evolution of the Primacy Doctrine
Scope: Every norm of EU law that has direct effect prevails over any (even constitutional) norm of national law
Content: Duty for a national court to set aside (disapply) the national norm conflicting with directly effective EU norm

46. Case laws
ECJ, C-106/77, Simmental: Duty to set aside provisions of national law which are incompatible with Union law.
ECJ, C-106/89, Marleasing, 1991: National law must be interpreted and applied, insofar as possible, so as to avoid a conflict with a Community rule.

47. Case laws
In Factortame (1990) the House of Lords suspended the operation of an Act of Parliament because it contradicted European law.
In exceptional circumstances, English courts may suspend the operation of English legislation.

48. CONSEQUENCES OF SUPREMACY DOCTRINE

49. TWO POSSIBILITIES
A - NATIONAL COURTS CONSIDER NATIONAL PROVISIONS INAPPLICABLE TO THE EXTENT TO WHICH THEY ARE INCOMPATIBLE WITH EUROPEAN LAW
B - NATIONAL COURTS MUST DECLARE VOID NATIONAL LAW CONFLICTING WITH EUROPEAN LAW

50. CASE SIMMENTAL II (1978)
What consequences flow from the direct applicability of a provision of EU law in the event of INCOMPATIBILITY WITH SUBSEQUENT LEGISLATIVE PROVISION OF MEMBER STATES?
In Italy national legislation can be repealed only by Parliament or the Supreme Court.

51. Ecj position
General principle: “ rules of European Law must be FULLY AND UNIFORMLY APPLIED IN ALL MEMBER STATES FROM THE DATE OF THEIR ENTRY INTO FORCE AND FOR SO LONG AS THEY CONTINUE IN FORCE”

52. QUESTION CONFLICTING NATIONAL LAWS
HAVE TO BE DECLARED VOID BY NATIONAL COURTS?
WOULD EUROPEAN LAW BREAK NATIONAL LAW?

53. Ecj position
THE SUPREMACY PRINCIPLE WILL NOT MAKE NATIONAL CONFLICTING NORM VOID BUT ONLY INAPPLICABLE NOT INVALIDATION (VOID) BUT DISAPPLICATION (INAPPLICABLE)

54. QUESTION
WAS THIS TO IMPLY THAT THE MS HAS NO COMPETENCE TO ADOPT NATIONAL LAWS THAT WOULD RUN COUNTER TO EXISTING EUROPEAN LAW?
WERE THESE NATIONAL LAWS VOID AB INITIO?

55. MINISTERO DELLE FINANCE V. INCOGE
E. COMMISSION: a MS has no power to adopt a fiscal provision incompatible with European law: such provision is NON- EXISTENT
ECJ: disagree. National courts are only under the obligation to disapply a conflicting provision of national law, be it PRIOR OR SUBSEQUENT to European Law.

56. CONSEQUENCES NATIONAL COURTS ARE NOT OBLIGED TO BREAK NATIONAL LAW
THEY MUST DISAPPLY NATIONAL CONFLICTING NORMS IN THE SPECIFIC CASE
SUPREMACY PRINCIPLE AS A REMEDY FOR INDIVIDUALS WHOSE RIGHTS HAVE BEEN INFRINGED BEFORE NATIONAL COURTS

57. HOW WILL INDIVIDUALS ENFORCE THEIR EUROPEAN RIGHTS?
Question:
HOW WILL INDIVIDUALS ENFORCE THEIR EUROPEAN RIGHTS?

58. REMEDIES: HOW TO ENFORCE EU LAW
NATIONAL COURTS provide effective remedies for the enforcement of EU law
EUROPEAN ACTIONS in the EUROPEAN COURTS: Direct enforcement

59. European actions
1) Enforcement actions: TFEU - when MS fails to act in accordance to EU law - when a member state fails to act in accordance with European law.
2) Failure to act (of the European Union)
3) Judicial review
4) Action for damages

60. Enforcement actions against Member States
When a Member State breaches European law there are two potential applicants for enforcement actions against the Member State:
The Commission (Article 258)
Another Member State (Article 259)

61. Limitations on ECJ jurisdiction
Art. 275 TFUE: no jurisdiction with respect to provisions relating to the common foreign and security policy, nor with respect to acts adopted on the basis of those provisions.
Art. 276 TFUE: no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of the MS or the exercise of the responsabilities incumbent upon MS with regard to the manteinance of the law and order, and the safaguarding of internal security