Supremacy, general principles,
litigation
Supremacy
Supremacy of EC law (Foster p 77-81)
Van Gend (1963):
Arg: up to national constitutional law to
decide on whether int treaty prevails
over national
ECJ: (new legal order, states have limited
sovereignty)
Costa v ENEL 1964
…the law stemming from the Treaty is an
independent source of law..could not
be overridden by domestic legal
provisions…integral part of national
law…
-real powers stemming from limitation of
sovereignty
-necessary for uniform applcn of law
-necessary for effectiveness
-pragmatic and purposive interpretation
of Treaty law
Supremacy
Supremacy implications:
-no precedence to unilateral and
subsequent measures
-any conflicting provision is
automatically inapplicable, must
be set aside (Simmenthal 1978
C106/77)
-cannot recourse to national law,
not even national constitution to
judge validity of Community law
(Int Handelsg. C 11/70)
supremacy
How did MSs receive this?
Not all MSs allow easy acceptance of
principle
• Germany:
Int Handelsg 1970: no legal foundation
for supremacy, basic rights of German
Constitution may not be adhered to,
no national check on Comm legln.,
breach of German constn principles
1974 Solange I: supremacy not accepted
(lack of democratic legitimacy, no
code of fundamental rights) where
there was a conflict, German
Constitution re human rights prevail
1986 Solange II: by now, all MSs had
ratified the ECHR, therefore, as long
as ECJ ensured effective protection of
human rights, Ger Const court will not
question supremacy and not generally
review Comm legislation
1994 Brunner: Germany accepted
supremacy but not unconditionally
Supremacy
• Bananas judgments
– Germany brought annulment action
against Regulation re common
organization of bananas market
(preference to ACP states) because:
• Violation of non-discrimination,
proportionality, fundamental EC rights
to trade, to property, GATT provisions
– ECJ: rejected
– Germany: violation of constitutional
rights to property, GATT (higher
than EC law since prior to)
– Comments: if every MS claimed
specific rights, ever closer union
not possible BUT sparing use
would act as check on ECJ
Supremacy
• UK
-dualist system, no written constitution,
parliamentary supremacy
-European Communities Act 1972
-direct effect accepted
-secondary legislation through Acts,
Orders or delegated except under
Schedule 2
-ECJ decisions given force of
precedence
Factortame I, II-it is Parliament which has
permitted direct effect and supremacy
(therefore could set aside national rule
which was in the way of adequate and
effective remedy)
Conclusion: each MS accepts
supremacy, direct effect, but reserves
right to “supervise” EC institutions
Principles
• General principles derived by
ECJ as being “higher”
– Proportionality
– Legitimate expectations
– Legal certainty
– Non-discrimination and
respect for fundamental human rights
(but which ones?)
• Derived from MS legal systems,
or from necessity
• Can be used to challenge action
of EC institutions + MS action
principles
Proportionality
-is a measure suitable to achieve
objective? “Manifestly
inappropriate”?
- is the measure necessary?
- is the measure
reasonable/”proportionate”?
Generally used to challenge EC
measures which excessively
restrict rights, to challenge MS
measures derogating from EC
laws, reduce/strike down
excessive penalties, rarely to
question MS policy itself as not
proportional
principles
• Proportionality and subsidiarity
(Art 5)
– Subsidiarity aims to limit
institutions’ competence (only
if MSs cannot achieve
objectives sufficiently + if
better achieved at Community
level)
– Proportionality is re measures
themselves
• Tanya Kreil v Germany C285/98
(2000)
principles
• Non-discrimination (arbitrary)
– Also in Art 13 + different
contexts
– Based on a deeper principle of
equality
– Some discrimination may be
objectively justified eg to
protect health, public policy
principles
• Human rights as principles
– Initially no HRs in Treaty
– Int Handelsg 1970
• Respect for fundamental rights is
an integral part of Community
law
– Nold v Commission 1974
• Such rights derive from MS
constitutional traditions,
international treaties ratified by
MSs (eg ECHR), therefore are
basic principles to which all MSs
subscribe.
– Joint Declaration on
Fundamental Rights 1977
principles
• Why cannot the EC accede to the
European Convention on Human
Rights 1950?
– Opinion 2/94
• Express and implied powers
• Art 308?
• Nice 2000 Charter of
Fundamental rights (European
Council)
• Constitution 2003 – Charter
incorporated as Part II
principles
• Fundamental rights developed autonomously
by ECJ:
– Non-discrimination in certain areas (equal
pay, between private parties)
– Freedom of expression within
broadcasting law
– Right to fair hearing
• Fundamental Rights Charter (civil, political
social, economic rights):
– Dignity, equality, no human cloning,
privacy, freedom of expression, right to
work/health care/education etc
– Art 37 high degree of env prot +
improvement in env quality + sustainable
development in all Union policies
• ECHR:
– Right to life, prohibition of torture/slavery,
right to liberty/security/fair trial/effective
remedy, freedom of expression/assembly,
right to respect for private and family life
etc
– Protocol 1 protection of property except in
public interest, right to education
– Protocol 6 no death penalty
Judicial remedies and review
• Judicial remedies for directly
effective provisions must be
provided by national courts (but
Art 10)
• ECJ has provided increasing
guidance
–
–
–
–
Non discrimination
Practical possibility
Penalties must be reasonable
adequate and effective remedies
(von Colson)
– Effectiveness may require setting
aside domestic law (Factortame I)
Judicial remedies and review
• ECJ requirements for national
remedies:
– state liability - compensation claims
for breach by MS of EC law
(Frankovich 6/90, 9/90)
– Even where no direct effect
provided but
• Law intends to confer rights
• sufficiently serious breach
• Link between damage and breach
– Based on art 10, principle of
effectiveness, general principles
common to MS systems as
provided also in art 288 (Factortame
III, Brasserie du Pecheur C46/93,
48/93)
– Judicially developed principles of
state liability (v legislative scheme)
Enforcing Community measures
• Art 211 by Commission
• Art 226 infringement
proceedings
– Pre-contentious stage, formal
notification, negotiation, reasoned
opinion (2 months to comply),
referral to ECJ
– ECJ declares, now may fine (art
228)
• Commission v MS
– Comm v Fr (C 167/73)
• improper implementation
– Comm v Belgium re water pollution
dir implementation
• Cost/complexity no excuse
– Comm v UK re recording equipment
in road transport
• Defence of reciprocity not acceptable
enforcing Community measures
• By MSs
– Art 227 MS v MS
• By individuals - may only
bring actions
– through national courts/direct
effect and/or preliminary ruling
– Complaints to Commission, to
Ombudsman
Actions against EC institutions
• Art 230 ‘annulment actions’
– direct challenge to legality of Community
acts (2 months)
• By MS, Council, Commission, EP
priviliged applicants
• By court of auditors, ECB special
privileged
• By natural or legal person if of
direct and individual concern,
non privileged applicant
– Plaumann v Commission (C25/62)
• For lack of competence,
infringement of procedural
requirement (Roquette Freres v
Council C 138/79), infringement
of principles (Nold v
Commission C4/73), of Treaty
provisions, misuse of power
Actions against EC
institutions/acts
• Art 232
– failure to act
– Must be first called to act, then
2 months
Actions against institutions/acts
• Art 234
– preliminary rulings = indirect
challenge to legality of acts
• No time limits
• Re interpretation of treaty,
validity of acts, scope of a right
but based on actual dispute
• Up to domestic lower court to
ask, unless re validity of acts.
Last instance must ask.
• Doctrine of acte clair
• Binding on referring court
• Binding from date of enactment
of provision unless ECJ rules
otherwise
Judicial review
• Consequences of finding of
illegality
– Art 230 actions
• Declaration that act is void
• Void ab initio, ie retroactive
unless ECJ states otherwise
(time limited, not until another is
passed, only parts are void etc)
– Art 234 rulings
• If void for that court, also void
for others
• ECJ may order remedial action
Reading
Folsom:
137-171 the freedoms
178-180 transport policy
181-201 taxation/state
aid/government
procurement/product
liability/consumer protection
217-225 environment policy
Energy policy: go to europa.eu.int,
click on ‘energy’, then on
‘panorama’, then on ‘overall view
on energy policy and action’