User:Kaihsu/EUlawB2

Constitutional and institutional law of the European Union.

Section B: Sources of European Union law.

Chapter 2: Treaties.

Notes by Kaihsu Tai, 2010-05-05.

Relationship between national and EU law
The repeal of a constitutional statute such as s 2 European Communities Act 1972 needs to be express and cannot be merely implied; obiter, the application of EU law in the national legal order depends on national law, not EU law: Thoburn v Sunderland City Council [2002] 3 WLR 247.

Recall Brunner v EU Treaty [1994] 1 CMLR 57 per Bundesverfassungsgericht (BVG), and see Carlsen v Rasmussen [1999] 3 CMLR 854 per Højesteret (Danish Supreme Court). In each case it was held that powers conferred to EU cannot be open-ended and need to be specified; there is no Kompetenzkompetenz. Højesteret said obiter that it can review EU acts and in extraordinary cases rule them incompatible with the Danish constitution.

Supremacy of EU law over national law in all cases of contradiction is not provided in the Treaties (though there is a Declaration concerning primacy attached thereto, number 17, citing Costa, infra).

The EU Treaties, by contrast with ordinary international treaties, has created its own legal system which is an integral part of national legal systems; EU law cannot be overridden by domestic provisions; Article 288 TFEC provides regulations to be directly applicable, implying supremacy: Costa v ENEL 6/64.

A national court must refuse to apply national provisions in conflict with EU law, and need not await setting-aside by the constitutional court: Amministrazione delle Finanze dello Stato v Simmenthal 106/77.

Direct effect
EU law, a legal order in which Member States as well as their nationals are subjects, produces direct effects and creating individuals which national courts must protect if certain criteria, including that of clarity, are met: Van Gend en Loos 26/62. The test for Treaty provisions to have direct effect has three elements. It has to be ‘[1] clear and [2] unconditional and [3] not contingent on any discretionary implementing measure’: Hurd v Jones 44/84. The latter two elements are elaborated below.

Where the states have discretion in the means to achieve its Treaty obligations, the provision lacks direct effect: Von Colson 14/83. For example, the implied right of residence in Article 18 TFEC (against nationality discrimination) is not sufficiently unconditional and therefore lack direct effect; there is a conditional right in Article 21 TFEC (citizen’s freedom of movement and residence): Trojani C-452/02. Distinguish from national safeguard restricting EU provision of rights (e.g. freedom of movement for workers in Article 45 TFEC), which does not prevent direct effect: Van Duyn v Home Office 41/74.

A Treaty provision has direct effect if transposition is not implemented by the time-limit: Reyners v Belgium 2/74 on Article 49, 50, 53 TFEC; Defrenne v Sabena (I) 43/75 on Article 119 TEC in its original form (first-phase time-limit; later Article 141) equal pay for men and women, now amended in Article 157 TFEC. (There was also Defrenne v Sabena (II) 149/77 on lack of EU provision for equal working conditions at the time; not relevant here.)

Horizontal effect
Many but not all Treaty provisions have effect between individuals (‘horizontal effect’). Prohibition on discrimination (Article 157 TFEC; ex Article 141 TEC; ex Article 119 EEC) extended beyond public authorities to all collective labour agreements and to contracts between individuals: Defrenne v Sabena (I) 43/75. Similarly the court ruled that an association able to place obstacles or a dominant organization akin to a national regulator are bound by worker freedom-of-movement rules: Walrave v Union Cycliste Internationale 36/74, Bosman C-415/93.

Competition law (articles 101 and 102), enforced by the European Commission, has horizontal effect, even before the national courts: Belgische Radio en Televisie v Sabam (‘BRT I’) 127/73, Crehan v Courage C-453/99.