1. Controversy about primacy of EU Law
When the British Conservative Member of Parliament (MP) Nigel Mills claimed “we need to take some real action and that is why we should at least be reintroducing the restrictions on Romanians and Bulgarians” he jiggled on the one hand on the principle of free movement within the European Union (EU), furthermore doing so he also put the doctrine of supremacy of EU Law into question. The supremacy of EU Law is one of the most debated and most controversial issue within in the European Community from its beginning.
The EU is a unique entity. 28 Member states, 28 national parliaments, 28 constitutions, but also one European Parliament, one Commission and one European Court of Justice (ECJ), all working together for one aim: The Common Market. From an economical point of view, several different jurisdictions are not desirable and lead to too much insecurity. From an ethical point of view 28 different handling of e.g. employment right lead to injustice and discriminative humans worth, which is against article 20 of the Charter of fundamental rights of the European Union “Equality before the law”. As a consequence of step-by-step integration and not full legislative competence of the Commission supremacy of EU Law is not cleared thoroughly. One could mention that this is only a problem of traditional euro-sceptical Britain, but it is always a matter of judicial interest, when there is uncertainty about implementation of EU Law. To clarify the concept of “supremacy” we will examine its basics. The interpretation of the authority of the ECJ is controversial, we will exemplify divergent interpretation as following step.
2. Administration of justice within the European Union
It seems remarkable, why it is worth to discuss about supremacy of judiciary power, which is established by a political entity, created by institutions and permanent policy areas. “The principle of primacy was not written down in the founding Treaties of the EU, but was established by the case-law of the CJEU.” There is also no constitution of the European Union as it was originally intended with the Treaty of Lisbon. The Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) established the leading principles and rules, the so-called “primary law”. The “’secondary law‘ is made up of legal acts of the institutions of the EU.” “Secondary law” is created by adopting regulations and directives.
“The most important difference […] is that regulations are binding in their entirety and are directly applicable in all Member States. By contrast, directives are binding upon the Member States to which they are addressed as to the result to be achieved within the set deadline, but they leave to the national authorities the choice of form and methods“
As the European Union is not a full developed state – although there are attempts to do so, there is still the parliament without exclusive legislative function, the executive authority is still subdivided among two institutions – the ECJ steps in where the institutions are not explicit. “Where two legislative wills come into conflict, each legal order must determine when conflicts arise and how these conflicts are to be resolved.”
From this follows that supremacy has the be clarified in every case by the ECJ again. The ECJ can not take action on itself; only if a question about the interpretation of the European treaties or other statutory provisions appears before a court of a Member State, the ECJ can be requested to give proposal how to deal. Meantime, there are several cases, which refers to the supremacy of EU Law, every time developed a bit more specific. The basic was established 50 years ago, in cases C-26/62 “Van Gend en Loos” and 6/64, “Costa v E.N.E.L.” in 1963/ 1964.
3. The perspective of the Court of Justice of the European Union
Wherever the Member States had controversy about the next steps of the Union, the Court has its definitely interpretation of the treaties and had gone its way until today. The first step was taken by the judgment of “Van Gend en Loos”. The Court clarified the direct effect of EU Law and referred on the Treaty of Rome.
“The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.“
This does not clearly determine the supremacy of EU Law. “While the supremacy of a norm implies its direct effect, the direct effect of a norm will not imply its supremacy.” It requires a second step, followed only one year later, when the Court asserted the absolute scope of European law. The question was whether a national court should refer to the CJE if it considers Community law may be applicable or simply apply the subsequent national law. The CJE commented that,
“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 the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. […] This provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law.“
Both cases together “represented […] a giant leap on the road to European integration” The Court reminds the Member States that to create a Union with discretely institutions means that they limited their own power and rendered a part of their sovereignty.
In “Handelsgesellschaft” the supremacy of EU Law was repeated and affirmed by the court:
“Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called in question. Therefore the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure.“
By comparing these three judgments we can emphasise the key arguments by the court for the absolute supremacy of EU Law. The Treaty of Rome was an absolute novel type of treaty. It goes much further than a common international treaty. This means, that for the first time sovereign national states have transferred power to an international community to benefit as a whole. To guarantee all Member States the same chances, they limited their sovereign rights (1). This logic would be harmed if one Member State would try to act contrary to the Treaty. The adverse effect on the Community could not be bigger (2). Thats also the reason, why EU Law outplays national constitutional law. EU Law is created as a system of Community Law, within “law is respected because – and as long as – it is equally applied in all cases […]. There cannot be be privileges nor discrimination.” (3) The aims of the Community cannot be accomplished unless EU Law achieves primacy (4).
While this is only the “conceptual basis”, in “Simmenthal” the Court apply its self-imposed obligation.
“Furthermore, in accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but — in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States — also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.“
Community Law takes boundless precedence over the individual laws of the member states and every national Court has to apply in its entirety.
4. Member States and Supremacy of EU Law
1. General
The absoluteness of supremacy is the exclusively view of the European Court of Justice and is not shared as a whole by the Courts of the Member States. “This ‚centralist solution‘ has become so engrained in our constitutional mentalities that we tend to forget that the ‚decentralised solution‘ is also possible.”
The European Union is a deficient Federal State. Power sharing is fragmentary developed. The classical and strict vertical authority of the judiciary is at the divide EU/ National State interrupted. On this edges are fierce controversies. The reasons are variable.
Including different traditions of jurisprudence, the European Union, the tradition of dualist on the one hand and the monism tradition on the other, “posed a serious legal threat to the unity of the Union legal order.” The treaties, both the Treaty of Rome in 1957 and the TEU/TFEU, did not stressed which one is preferred. “Whether the ECSC [European Coal and Steel Community, ECSC Treaty] and the E(E)C Treaties had created a new kind of of legal order, which was was a third type of law not fitting into the traditional dualism of national and public international law,” was one of the essential legal issues.
Another issue is, where the treaties within the national legal order are accepted. This is a question of substance as soon as the constitution of one Member State is concerned. The general response on the effect of EU Law on the national constitution is, as seen, that EU Law is beating national constitutional law. But what happens, if the treaties are accepted only by conventional law? Constitutional Law normally is Supreme Law, but if the European Treaties are accepted by lower law, does this mean, (national) constitutional law is beating EU Law?
Every Member State deals to this questions different and we can divide them into three groups.
(a) “Member States that acknowledge full primacy”. Some States, mostly monist states, like The Netherlands, Belgium, Luxembourg, are accepting EU Law unconditional. “In the Netherlands for example, Article 94 of the basic Law – according to a generally accepted interpretation – provides that international law is not only part of, but is also superior to, any domestic law.”
(b) The “Yes, but” Member States: In General the Courts of the Member States accept the supremacy of EU Law. Limits could set in several ways. Austria for example, attribute constitutional rank only to the European Convention on Human Rights (ECHR). Other states do not refer to the European Union, the national courts have to interpret the role of the State.
(c) Member States that assume primacy of the national constitution: Some States, like Hungary, are underlining the sovereignty of national law. “Some of qualify as ’souverainist‘ only at the first glance […] In these cases, however, national constitutional courts emphasized the ’souveranism‘ of the constitution to confirm its full primacy.”
2. Case studies
(a) Germany:
The “Grundgesetz” (Basic Law) obligates in Article 23 Germany to participate at the European Union.
“With a view to establishing a united Europe, the Federal Republic of Germany shall participate in the development of the European Union that is committed to democratic, social, and federal principles, to the rule of law, and to the principle of subsidiarity, and that guarantees a level of protection of basic rights essentially comparable to that afforded by this Basic Law.“
Indeed, this article is quite interpretable, even if Article 24 explicates, that “the Federation may by a law transfer sovereign powers to international organizations.” Alike, this is interpretable and not pertaining to the European Union. The German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) did it and claimed a big “as long as” statement. The German “Grundgesetz” is not a constitution in its classical way, but its impact, acceptation and position within the German legal order is outstanding. When the EU Law has supremacy, from the BVerG point of view, “national constitutional law could be eliminated as the highest national check on European legislation that did not have equivalent legal safeguards.” As long as the European Union does not establish a Constitution as the highest law and as the fount of fundamental rights, the Bundesverfassungsgericht will not be willing to transfer supremacy, because there is no judicial opportunity to oversee the treaties. Notwithstanding, in practice the Bundesverfassungsgericht always acknowledges the supremacy of EU Law at the end, but never without the reference of its general concerns.
(b) France:
The acceptance of supremacy of France courts is more complex, due to the division of the judicial system. There are two equivalent courts existing, the administrative and the ordinary court. Both Courts had different interpretation of the supremacy of EU Law, but now in general it is acknowledged.
Just like the German constitution, the French has a passage, wherein international laws are acknowledged. Article 55 explicates that “treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.“ Contrary to the German, the french constitution refers directly to the TEU and TFEU treaties: in Article 88-1:
“The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union […]”
Both courts express doubts on the supremacy, if EU Law affects the french constitution. “EU law ranks above statute, but below the Constitution.” In case of this, the courts have to proof EU Law for clashing with the constitution.
(c) United Kingdom
Germany and France are two of the founder members of the former ECSC and were always convinced of a united Europe. Traditionally, the United Kingdom (UK) stands more chary to the European Union. This is mirrored by the position – better: the debate – to the supremacy of EU Law.
The UK became member of the European Communities in 1973 and accepted with that the position of the ECJ related to the supremacy or the other way round, the were not deterred of that. The constitutional problem, which we have seen in Germany and France, cannot be debated in the UK, they simply do not have a constitution. “This means that if there is a clash between a late and an earlier norm then the latter is taken to be impliedly repealed or disapplied by the former.” For two other reasons the UK debates about EU Law supremacy. The first one is the sovereignty of the parliament. Instead of a constitution, in the UK the parliament is the foundation of national law. This principle is endangered by the absolute supremacy claimed by the ECJ. Furthermore, the tradition of Dualism prevent the adoption of EU Law and “in order to be enforceable at the domestic level they must be incorporated by an Act of Parliament.” While the supremacy of EU Law is acknowledge by the english Courts, the problem is rather a political than a juristic one. The courts argues that “the common law had […] modified the traditional concept of sovereignty, by creating exceptions to the doctrine of implied repeal.” In fear of losing sovereignty, the political landscape, instead, has a deviating opinion, more driven by the Euro-sceptical and conservative “United Kingdom Independent Party” (UKIP). Thereby they are also influenced by the german “yes, but” attitude of the “Bundesverfassungsgericht”. “”To the end the European Union Bill 2011 introduced a far-reaching regime of statutory and referendum ‚locks’” and led in its consequence to the announcement of a referendum on whether the UK should remain in the EU. “Sovereignty thus continues to be contested.”
5. Conclusion
In spite of all controversial discussion “today, EU law is one the most connecting factors in the EU.” In general, supremacy is accepted in all member States of the European Union. However, some fundamental issues still leaves questions unanswered and the principle of absolute supremacy could lead to the opposite of the primary aim.
On the one hand member states do not accept EU Law as source of fundamental rights, on the other hand they are in fear of losing national sovereignty. In the long run, the Union has to decide. Either a constitution, this would be in the interest of states like Germany or less deeper integration than only Common Market, similar to the ECSC, like the UK prefers.
References
Charter of fundamental rights of the European Union. http://www.europarl.europa.eu/charter/pdf/text_en.pdf.
Craig, Paul and Burca, Grainne de, 2011: EU Law. Text, Cases and Materials. Oxford University Pres. Oxford. 5Th Edition.
Fennelly, Nial, 2010: The European Court of Justice and the Doctrine of Supremacy: Van Gend en Loos; Costa c ENEL; Simmenthal. In: Maduro, Miguel Poiares and Azoulai, Loic: The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. Hart Publishing. Oxford and Portland, Oregon. P: 39-46.
Martinicio, Giuseppe, 2012: Is the European Convention Going to Be ‚Supreme‘? A Comparative-Constitutional Overview of ECHR and EU Law before National Courts. In: The European Journal of International Law. Vol. 23/2. p. 401-424.
Hofmann, Herwig CH, 2010: Conflicts and Integration: Revisiting Costa v ENAL and Simmenthal II. In: Maduro, Miguel Poiares and Azoulai, Loic: The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. Hart Publishing. Oxford and Portland, Oregon. P: 60-68.
Mills, Nigel, 29.01.2014: http://www.telegraph.co.uk/news/uknews/
immigration/10604116/Nigel-Mills-MP-If-we-dont-restrict-EU- immigration-now-when-will-we.html.
Trstenjak, Verica, 2013: National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States. In: Beijing Law Review 2013. Vol.4, No.2, 71-76
Pernince, Ingolf, 2010: Costa v ENEL and Simmenthal: Primacy of European Law. In: Maduro, Miguel Poiares and Azoulai, Loic: The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty. Hart Publishing. Oxford and Portland, Oregon. p: 47-59.
Schütze, Robert, 2012: European Constitutional Law. Cambridge University Press. Cambridge.
Cases
Case 26/62: NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration.
Case 6/64: Flaminio Costa v E.N.E.L.
Case 11/70: Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel.
Case 106/77: Amministrazione delle finanze dello Stato v Simmenthal