User:Kaihsu/EUlawB4

Constitutional and institutional law of the European Union.

Section B: Sources of European Union law.

Chapter 4: Supremacy.

Notes by Kaihsu Tai, 2010-04-13.

Supremacy (primacy)
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: Costa v ENEL 6/64; cited in Declaration concerning primacy, Declaration 17 TFEU.

National courts ought to immediately set aside (that is, disapply) any national measures conflicting with EU law (or, obiter, even just encroaching upon EU legislative competences), without awaiting interpretation from higher courts: Simmenthal 106/78.

The obligation on the national courts for such disapplication does not render the national measure void or non-existent; it ‘does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law.’: IN.CO.GE 10/97. Member States have a positive obligation to repeal conflicting national legislation: Commission v France (French Merchant Seamen) 167/73.

‘[T]he administrative body responsible for the adoption of an administrative decision is, in accordance with the principle of cooperation arising from Article 10 EC, under an obligation to review and possibly to reopen that decision if four conditions are fulfilled. First, the administrative body must, under national law, have the power to reopen that decision. Secondly, the administrative decision in question must have become final as a result of a judgment of a national court ruling at final instance. Thirdly, that judgment must, in the light of a decision given by the Court subsequent to it, be based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling in the circumstances set out in the third paragraph of Article 234 EC. Fourthly, the person concerned must have complained to the administrative body immediately after becoming aware of that decision of the Court’: i-21 v Germany C-392/04 para 52.

Remedies
Remedies for infringement of EU-law rights are left to national law. All remedies available in national law must be open to litigants seeking to enforce EU-law claims: Rewe 158/80. If no effective remedy exists, Member States are obliged to create them: Von Colson 14/83.

Where, in a case involving EU law, a national court considers that the sole obstacle to the granting of interim relief is a rule of national law, EU law requires it to set aside that rule: Factortame (No. 2) C-213/89. National limits on compensation do not apply when EU law formed the basis of the claim: Marshall (No. 2) C-271/91.

A Member State is liable to compensate individuals for loss caused to them as a result of a breach of EU law for which the Member State is responsible: Francovich v Italy C-6/90. This includes wrongful acts by the legislature: Brasserie du Pêcheur v Germany C-46/93. This also includes an incorrect ruling by the judiciary: Köbler v Austria C-224/01.

Once the EU has acted on a matter, a Member State can no longer act against another on the same matter; it is insufficient protection against a claim of liability from an individual damaged by the wrongful Member State act that such an EU act is ineffective in another Member State: Hedley Lomas C-5/94.

Belgium
The Cour de Cassation ruled that Belgium was a monist country and a treaty prevail when in conflict with a statute; ratification by legislature is not a normative act: Minister for Economic Affairs v Fromagerie Franco-Suisse ‘Le Ski’ [1972] CMLR 330.

Denmark
Højesteret (Danish Supreme Court) ruled that powers conferred to EU cannot be open-ended and need to be specified: section 20 of the Constitution. Article 352 TFEU and the jurisdiction of the Court of Justice of the European Union (ECJ) satisfy such a requirement; obiter, Danish courts can review EU acts and in extraordinary cases rule them incompatible with the Danish constitution and therefore inapplicable in Denmark, even after a reference to the ECJ: Carlsen v Rasmussen (Maastricht) [1999] 3 CMLR 854.

France
The administrative Conseil d’État is less willing to admit the primacy of EU law than the ordinary (judicial) Cour de Cassation. For example, the Conseil d’État ruled that ECJ ruling 112/83 between different parties were not binding on a lower court: Société des Produits de Maïs [1986] RTDE 533.

However, the Conseil d’État did imply that a Treaty prevails when a statute (loi) conflicts with it: Nicolo [1990] 1 CMLR 173. It also held that a statute infringing a directive must be disapplied: Arizona Tobacco [1993] 1 CMLR 253.

The Cour de Cassation ruled that EU Treaties created a separate legal order, binding on the national courts; remedy through the ECJ satisfies the reciprocity requirement in Article 55 of the Constitution: Directeur Général des Douanes v Société Vabre & Société Weigel [1975] 2 CMLR 336.

The Conseil Constitutionnel said the proposed European Constitution ‘is without effect on the existence of the French Constitution and its place at the summit of the internal legal order’; ratification requires a prior revision of the French Constitution: Decision 2004-505 DC. It similarly ruled for the Treaty of Lisbon: Decision 2007-560 DC.

Germany
In general, the Bundesverfassungsgericht (Federal Constitutional Court) of Germany asserted that the EU Treaties are effective only through the German Grundgesetz (Basic Law): last confirmed in Lisbon Case, BVerfG, 2 BvE 2/08, 30 June 2009. The EU Treaties are not unconditionally supreme over the Basic Law and the Federal Constitutional Court can review the constitutionality of EU law; the Member States are the ‘masters of the Treaties’ (‘Herren der Verträge’) and the EU, including the European Court of Justice, does not have Kompetenzkompetenz: Brunner (Treaty of Maastricht) 89 BVerfGE 155, [1994] 1 CMLR 57.

German courts were to apply EU law only in so far as it did not contravene the Basic Law; contravening EU law is inapplicable but not null: Internationale Handelsgesellschaft v EVGF, 37 BVerfGE 271, [1974] CMLR 540; ECJ judgment 11/70 approved. By 1987, EU had established a system of democratic representation and protection for citizens’ fundamental rights, so a review of compatibility of an EU law with the Basic Law would be superfluous: Wünsche Handelsgesellschaft, 73 BVerfGE 339, [1987] 3 CMLR 225.

The Bundesfinanzhof (Federal Tax Court) acted unconstitutionally against Article 101(1) of the Grundgesetz (‘lawful judge’) when it failed in its obligation by Article 267 TFEU to refer a case to the European Court of Justice: Kloppenburg [1988] 3 CMLR 1.

An constitutional provision making an exception to the forbidding of extradition of German citizens is subject to the constitutional principle of proportionality: 2 BvR 2236/04 (18 July 2005) (European Arrest Warrant).

Poland
The Polish Constitution is supreme law in Poland; EU law has effect only by virtue of, and to the extend permitted by, the Constitution: Polish Constitutional Court in K 18/04.

United Kingdom
‘The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council and regulations.’: s 2(4) European Communities Act 1972.

There cannot be implied repeal of the European Communities Act 1972: Factortame Ltd v Secretary of State for Transport (No. 2) [1991] 1 AC 603. The application of EU law in the national legal order depends on national law, not EU law: obiter dicta per Laws LJ, Thoburn v Sunderland City Council [2002] 3 WLR 247. A minister making a statutory instrument purporting to implement, but going beyond, an EU provision may be ultra vires; if the ECJ rules the EU provision invalid, the implementing measure will be a fortiori invalid: R v Minister of Agriculture, ex parte Fédération Européenne de la Santé Animale [1988] 3 CMLR 661.