Supremacy of Eu Law

The legitimacy of the ECJ to uphold EU legislation is a necessary component of effective human rights policy. The history of its increase in power is worth noting. Throughout the 1960s and 1970s, the ECJ’s location in Luxembourg, far from the political fray in Brussels and Strasburg, prevented it from becoming a strong body of the EU. Yet, throughout that time the court methodically built case-law that would lead to its surge in influence in the 1980s. The two most significant developments of the court during this time period were direct effect and supremacy. These twin pillars clarified the relationship between the national and EU legal orders.

European Law is very complex law , within EU law there is various different treaties which are in place. Two most significant treaties which have importance to the legislative process are The Treaty on European Union and the Treaty on the functioning of the European Union.

This essay advances the position that the quotation under discussion is, with all due respect to the Author, entirely incorrect. It is the counter-argument of this essay that the Courts of Justice of the European Union (CJEU) have ‘abused’ their interpretive jurisdiction, and, in places, have even done violence to the very wording of the Treaty itself.

There are two types of direct effect: Horizontal, between private individuals and Vertical, between individuals and the state. This is fact that direct effect is not clearly stated in any of the EU Treaties. The Treaty articles has direct effect, such as, Van Gend En Loos v Nederlandse Administratie der Belastingen principle of direct effect set out in this case and gave full authority to the EEC Treaty. This case provided a flurry of activity in the Court of Justice, which created many of judgements and brining about further integration, such as the primacy of EU law as stated in Costa v ENEL 1964 . This case is further endorsement that under Article 267 of the Treaty on the Functioning of the European Union (TFEU), a court is responsible to refer cases that have reached the highest point of appeal in their own country, if there is a question of the application of EU Law. Costa had reached its highest point of

The case of Costa v Enel established that the doctrine of supremacy of EU law over national law and an unconditional supremacy over all conflicting provisions of national regardless if it is a constitution right as per Internationale Handelsgesellschaft. Again in Simmenthal, it was held that the national courts have to comply with EU law and not to apply any conflicting provision, even if it had been practiced consequently. For individuals to enforce their

Although the EU is only licensed to create laws regarding distinct subject matters, in which such matters are obliged to take precedence above laws constructed by parliament, in this matter, the parliament is no longer the superior body of law in the UK. The earliest exemplar by which the long-established prospect of Parliamentary Sovereignty was questioned, hence embodying the infection point for the ideology of Parliamentary Supremacy relating to EU amalgamation was the instance of Factortame . This case recognized the superiority of EU law on top of parliament’s domestic law seeing that it refuted the Merchant Shipping act 1998 as a result of discrimination of ethnic minority, consequently conflicting the rules of the EEC. By which, national courts had to neglect Parliament’s statuary for it to adhere with EU arrangements as the Court of Justice of the European Union had maintained conclusively opposing with the doctrine of Parliamentary Sovereignty

This paper will assess the claim that supremacy of EU law is still an evolving and debatable concept. To do this, I have divided this paper into four sections. The first section will discuss the establishment of supremacy in EU law through ECJ case law. The second section will explore the vibrant debate surrounding constitutional pluralism that has arisen since the early 1990s. The third section will examine the debate and impact of the codification of primacy in the early 2000s. The fourth section will examine the extent to which the principle of sovereignty has been accepted in three EU Member States, namely, the United Kingdom, Germany, and Poland.

Historically the EEC treaty contained no provision dealing with the concept of supremacy of Community law over the national law of member states. In fact, treaties were generally silent as to the nature of the relationship between EU law and national law except for a general obligation contained in article 4 (3) TEU which states:-

Enforcing the European Union legal system is diverse and done on multiple platforms; through not only actions taken against member states for breach of their obligations, but also, for example, through the use of direct effect1. Article 267 TFEU; an organism devised to practice private enforcement of EU law before national courts, has been critical to ensure uniform interpretation and application of EU law in member states. References for preliminary rulings occur when the national courts are presented with a question of EU law due to uncertainty of the provision. The national court will therefore ‘make a reference to the Court of Justice (COJ) to obtain a preliminary ruling on any point of EU law relevant to the proceedings’2. In

The CJEU case-law on horizontal direct effect of directives arguably lacks consistency in regards to the application of the general principle. The principle of direct effect was established in Van Gend en Loos v. Nederlandse Administratie der Belastingen. Although there is no set definition of direct effect, a broader definition was provided in Van Gend en Loos that it “can be expressed as the capacity of a provision of EU law to be invoked before a national court.” However, Van Dyun v. Home Office established that directives are capable of direct effect. Furthermore, Marshall v. Southampton established that there could only be vertical direct effect of directives. This stringent principle has arguable ignited the highly contested debate of whether or not horizontal direct effect is applicable to directives or if directives could only have vertical direct effect. However, this essay shall explore the lack of consistency in case-law regarding horizontal direct effect of directives. Firstly, this paper will delve into the case-law of the topic of horizontal direct effect of directives in efforts to try to highlight its consistency in its approach. Secondly, the paper will use case law and the opinion of academics (enter the name of the academics later) to highlight its inconsistencies using the legal mechanisms that have been introduced by the Courts to try to compensate for the lack of horizontal direct effect of directives. Namely, indirect effect, incidental horizontal

However again this higher status can be seen as limited as is only assumed from a written obligation. Therefore to asses if supremacy is not the challenge to member state sovereignty that is appears to be, a close analysis of how the CJEU has dealt with the issue of supremacy of EU law in case law is needed, firstly looking at Van Gend en Loos which stated that the ‘EU was a new legal order permanently limiting the sovereign rights of the Member State’. This customs case helped establish the ‘relationships between the European Union and international law…to grantee that the rules of one system are complied with in another legal order ’ showing in practise that if on a national level EU law is breached CJEU will take supremacy and comply with ‘the integrity of the EU legal order’ . Further evaluation of the limits of the supremacy can be seen in the case of Costa V ENEL where ‘Italy had claimed that the EU treaties…had been transposed into the Italian legal order by national legislation, which could therefore be derogated by subsequent national legislation. The court rejected this presumption of the supremacy of national law by insisting on the supremacy of EU law’ . This case holds significance as it ‘is well-known since Costa V ENEL the court has affirmed the supremacy of Community law over national law’ strongly suggesting the continued existence of EU supremacy is not frequently

Member States’ positive obligation to take appropriate measures in accordance with EU Treaties and the Charter is set out under Article 4(3) TEU. Any derogation from the Union’s Law will not be justified and will be deemed inconsistent with the Treaty, unless the Treaty confers such power to Member States expressly. The Directive in concern expressly allows derogation for Member States to decide on when situations will be deemed permissible. In some occasions, EU Treaty confers upon Member States power to act unilaterally, however the discretion is limited. It can only be conferred upon expressly by Article 4 TEU. Moreover, Member States are

It is important to set the European Union Charter of Fundamental Rights in context by examining the development of rights within the European Union. The embryo organisation that commenced the EU (The Coal and Steel Community 1951) was introduced in the wake of World War II to rebuild Europe by economically tying previously warring nations together. The consensus amongst the "heavy weights" of the EU was, if member states were economically invested in each other to ensure financial stability within their own state, future conflicts would be avoided. The EU had taken the role of a purely economic organisation which explains why it was not focused on social issues such as human rights, leaving such matters to individual member states to determine. Then came the political advancement of the 1990s, as evidenced by Weiler; ‘[The Maastricht Treaty] appropriates the deepest symbols of statehood: European citizenship, defence and foreign policy’. Naturally, the issue of human rights became prominent within the EU, and after much debate and a Convention the Charter was passed and given legally binding status under the Lisbon Treaty of 2009. The Charter has proved to be a controversial issue within European politics, with doubts being voiced about the functionality of the European Union’s own “Bill of Rights”. To effectively assess the question at hand, this essay will evaluate the extent to which the Charter is a necessary and desirable development, before reaching an overall

In the aftermath of the 1957 Treaty , the European Economic Community (EEC) was established and customs barriers between the member states have been abolished. Member States throughout the Community, can “promote a harmonious development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between them”. Therefore, in order for a common market to be established between Member States, the Community enacted some legislative provisions which aimed to a true harmonization of laws; incorporate different legal systems under a basic legal framework. The main issue arising is whether these legal provisions in accordance with the case law, ensured the free movement of goods within this market.

The European Union played a very important role in transforming post-communist countries into democratic states with functioning market economies and the rule of law. The massive transfer of institutional and legal know-how from member