Background
The association between the European (E.U.) Law and Member State (M.S.) laws has been underpinned by three Treaties that establish the E.U. Community. The Treaties, EURATOM, ECSC, and EEC, have been central in creating the features that govern the relationship between the two entities. They represent more than a classical universal arrangement whose outcome is the development of mutual responsibilities between the involved parties. Based on the Treaties’ guidelines, also known as the primary law, the European Court of Justice (ECJ) ascertained specific legal orders for implementation, interpretation, and application by various institutional measures and acts. As such, the creation of the Community has an unlimited duration, personality, own institution, and lawful capacity. Moreover, the Community’s representation capacity on the international plane, specifically actual powers, originates from power transfer or sovereignty that limits states. Additionally, the Community limits M.S. from their independent rights notwithstanding in restricted areas and have developed a law society that binds the citizens and the M.S. Based on this, the coursework agrees with Schultze’s view of direct effect or supremacy E.U. Law.
Despite no Treaty openly expressing the Community Law taking superiority over state law, the supremacy doctrine of the E.U. Law is enshrined within the Treaties. Therefore, the E.U. Law is a significant part of the lawful European Community (E.C.) order. The supremacy principle is an unrecorded Community Law rule and fails to apply to the subsequent two E.U. pillars. Moreover, through ECJ’s jurisprudence, the principle has evolved, showing an evolutionary rather than a revolutionary procedure. In events where conflicts arise between the two laws, the ECJ’s created legal system contains a set of rules, the legal norms that should prevail over the other. Consequently, the M.S. or national courts should ensure practical supremacy effectiveness via upholding the E.U. Law. That happens to be the case despite supreme principal reception in M.S. being varied.
The Direct Doctrine Effect: The Van Gend en Loos Case
Since 1963, the most significant milestone achieved by the E.U. law has been attributed to the Van Gend en Loos case. The affected organization in the case, Van Gen den Loos, imported an organic merchandise to the Netherlands from Germany. Based on E.C. Treaty, Article 25 forbids new custom duties introduction alongside increasing market exiting duties; however, the Dutch excise and customs overcharged the firm, which is claimed to be contrary to the E.U. Law. ECJ’s decision on the matter provides a good insight into a sovereign transfer from the national court to the E.U. Law and the outcomes of sovereignty pooling, a joint power exercise on a Community level.
The passage from the case, which is critical to showing how E.U. Law dictates Schultze’s view, is worth highlighting. “EEC Treaty objective establishes a mutual market, whose functioning is of straight mutual concern to the involved parties within the E.U. The implication of the objective presents more than a pact that merely generates a joint obligation among contracting nations. The preamble confirmed the perspective of the Treaty, which refers to national administrations and their citizens. Moreover, the Treaty explicitly confirms the establishment of states gifted with independent rights, which impacts national administrations and their populations.
Important to note is that state nationals brought together within the Community are required to collaborate in how the E.U. functions via the European Parliamentary intermediary and the social and economic committee. Additionally, Article 177 of the Justice Court, which serves to secure a uniform interpretation by national tribunals and courts of the Treaty. The article confirms acknowledgment by stating that the E.U. has authority that the nationals can invoke before their tribunals and courts.” The drawn conclusion from the case showed that the E.U. comprises of a new international legal order for the benefits where the national courts possess inadequate self-governing rights.
The restricted rights cover not only the nations but also their people. Autonomously, in M.S. legislature, the E.U. Law imposes obligations on the people and intends to centre on their rights, a share of their state custom. The rights arise not only where the Treaty grants them expressly but also by obligation reasons where the Treaty is imposed in a precisely defined manner on the states, their people, and on community institutions.
With the court stating the latter, Article 25 caused direct effect meaning the E.U. Law, under specific circumstances, could create rights for M.S. individuals that national courts protected. Further, any individual deprived of invoking E.U. Law before national courts was deprived of invoking their rights. The necessity of the even and practical execution of the Community Law in national courts ensure the former law’s lawful integration into the individual communities. Since not all E.U. Treaty and law articles produce a direct effect, in associated instances, the ECJ has specified a set of guidelines after directives and Treaty articles can produce a direct effect. For any provision to contain the same effect, it must achieve several criteria like being unreserved, explicit, precise, and having no reservation on national courts and independent on any state executing measure. The effect of direct doctrine was an ECJ invention and is not established within the Treaty.
The Supremacy Doctrine: The Costa-Enel Case
While the Van Gen den Loos case affirmed the E.U. Law to be a detached lawful system distinguished from M.S. and international legal systems, the Costa-Enel case gave the ECJ a detailed opportunity. Through the Costa-Enel case, the ECJ developed E.U.’s supremacy principle. From the case, an Italian solicitor, Costa, declined to reimburse an electric energy bill issued by ENEL, the Italian electricity firm. The lawyer had shares within the firm and claimed his failure to pay the electric energy bill was due to the nationalization of the Italian aw of the electric energy industry contradicting Community allowances. The regulation had become effective after the E.C. Treaty endorsement by Italy, and the statutory regulation applied the lex posterior derogate priori rule. That meant the new law took precedence over the previous law, and Italy’s national court raised the case with the ECJ for a decision.
Based on the ruling, the following is worth highlighting since it also shows how E.U. Law dictates Schultze’s view. “Through the creation of an unlimited Community duration with its institutions, lawful capacity, personality, and representation capacity on the international plane. Further, actual powers originated from sovereignty limitation or power transfer from M.S. to the E.U. As such, M.S. has restricted their independent rights, notwithstanding the restricted areas, and formed a law entity that binds the nations and their individuals. M.S. provisions integration into law derived from E.U., in terms of the Treaty’s spirit. That makes it impossible for M.S. to accord subsequent and unilateral measures of precedence over a lawful system accepted based on reciprocity.
With the observation made by ECJ, the conclusion arrived by the court was that curtailing from the Treaty, an autonomous law source, due to its original and unique nature, could not be overridden. However framed, the overridden domestic lawful provisions in the absence of deprived Community Law character are being called into question. State obligations and correct transfer from domestic to Community lawful system arise from the Treaty and carry a permanent sovereign rights limitation. That was against a consequent independent act that was discordant with community concept that cannot succeed.”
On reiterating the Van Gen den Loos case, ECJ established its legal system on E.C. Treaty with a unique community beyond any universal pact. The new lawful is an integrated legal system part of M.S. and the obliged state courts to defend and execute the E.U. Law. Moreover, ECJ reiterated the M.S. standpoint where national courts have restricted independent rights notwithstanding limited areas and established a lawful order binding themselves and their people. ECJ also affirmed the impossibility of granting priority to national law, and each member state has to accept the Community Law-abiding by E.U.’s lawful rules.
ECJ asserted that E.U. Law execution must be the same in all M.S. to avoid impairing its effectiveness. Should there be variations in the execution of E.U. Law, there will be no coherence in the law’s applicability. To achieve effectiveness, the direct outcome and authority of the European Law must ensure Treaty obligation fulfilment resulting in discrimination on a nationality basis. However, neither the supremacy principle nor the direct doctrine effect is enshrined in E.C. Treaty.
Full EC Law Supremacy: Internationale Handelsgesellschaft
A law structure is an embodied set of regulations that rule partisan bodies and are often safeguarded through a distinct court hardly changed as ordinary laws. In the Costa-Enel case, the issue regarded conflict between provisions by the Treaty and those by ordinary national law. The interesting question that arose from the case was what happened when the constitution allowed for national provision. The Internationale Handelsgesellschaft case raised concerns on whether the European Community Law should supersede the M.S. constitution provision. Specifically, the case was concerned with whether E.U. Law should supremacy the fundamental provision rights provided by M.S. constitutions. Through the case, it has been argued the E.U. Law took total supremacy over M.S. national courts. The position of ECJ was that the E.U. law should have precedence over every national law provision, whatever their lawful status, even M.S.’s constitutions.
In a specific agricultural product market, the Community introduced a system that controlled the market. Through the system, exportations were allowed only by initially obtaining an export license, resulting in an economic payment. Nonetheless, failure by the organization to import the products would lead to a lost deposit and the matter regarding a company that lost its deposit. The claim by the applicant to invalidate the entire system contradicted the fundamental human rights. Based on the German Constitution, public establishments may enforce only on the people the essential obligations for the achievement of the questionable public objective. The argument at the German commercial court was that the E.U. degree was illegal since it dishonoured the German Constitution resulting in the issue of E.U. Law’s validity being mentioned to the ECJ. The concerning request was whether the ECJ thought the E.U. directive violated the people’s fundamental rights.
Founded on the Treaties, ECJ held that however framed, any rule originating from the Treaties was an autonomous basis of regulation that the boundaries of the national law could not override. Otherwise, the E.U. Law would be deprived of its community character, resulting in its being questioned. Subsequently, the validity of the E.U. measure or the effect it has in M.S. cannot be influenced by the claims that it alternatively runs to national constitutional structure principles. Similarly, it alternatively runsto the formulated fundamental rights of a state’s constitution. That translated to an understanding that regardless of the status or nature of M.S. legal provision, the applicability of the E.U. Law shall directly take precedence. As such, not only does the E.U. law has a direct effect, it also has supremacy over the allocations afforded the national courts by their respective constitutions.
With the position, the fundamental rights afforded by the M.S. constitutional structure have not impacted the validity of the E.U. Law. Moreover, it was established that the Community Law was supreme and directly affected the national legislations of the respective adherent states. The precedence of the Community Law over the nationwide legislation was made effective with its adoption after the provisions by the E.U. The court justified its position by stating that the E.C. legislation’s efficacy and unity would be highly damaged if the national court reviewed E.U. Law’s validity based on specific M.S. legal system provisions.
National Court’s Duty: Simmenthal II
The association between the national legislation and the E.U. Law was clarified by the Internationalle Handelsgesellschaft and Costa-Enel cases. While the latter case laid the principal supremacy foundation, the former affirmed the supremacy of the E.U. Law over the national laws. Thus, the basic provisions in the respective national constitutions cannot override the Community Law. As such, M.S. has the mandate of enforcing E.U. Law in their national courts regardless of whether there is conflict in their constitutional provisions. The clarity of this mandate is emphasized by the Simmenthal II ruling on the supremacy doctrine practical implications.
In this case, Simmenthal traded in beef to Italy from France and had to pay public health examination fee when the meat traversed the border, a requirement laid down by the 1970 Italian law. However, the requirement contradicted the respective provisions by the Community Legislation and the E.C. Treaty in 1968 and 1964. At an Italian court, the case raised two points where one, the Italian law had to prevail since it was executed after the two Community Legislations. Two, even with the Italian law conflicting with its obligation to the Treaty, its application by the national courts was possible until it had been avowed as being unlawful by the country’s statutory court. The argument of the second point was based on the Italian Constitutional Law principle, where inquiries were made on the constitutionality of the Italian laws, which were subject to the Constitutional Court.
The position held by ECJ was that the national court duty did not apply to any inconsistent state law provisions and to provide full effect to the E.U. provision, even if adoption was subsequent. ECJ also asserted that it would not wait to set aside the state law either by the legislature or the constitutional court. Based on the judgment, the following is worth highlighting in the coursework.
”Moreover, based on Community Law precedence principle, on the one hand, the relationship between directly applicable institution’s measure and the Treaty provisions. On the other hand, the relationship between the two is such that the measures and allocations not only by their admission into force render routinely inappropriate any contradictory requirements of existing national laws. However, as far as the Community Law takes precedence and is a fundamental part of the applicable lawful order in every M.S. territory, then its adoption is valid.” As such, relative to Community measures, jurisdiction loss applies regardless of whether a direct conflict exists or not.
The Future Europe Convention modified the Treaties and finally established the Europe Constitution. From it, as approved by governments and heads of states, “the laws and constitution adopted by E.U. MS in exercising competencies conferred on it shall have supremacy competences.” Moreover, based on Article I-6, “since the 1964 ECJ ruling, nothing substantive has changed in E.U. Law. The necessity of the clause lies in ensuring national laws adapt the agreed E.U. Law. The sole market cannot function in the absence of E.U. Law being predominant over national laws, which are in contradiction.” With the 2004 Europe Constitution, the direct effect and supremacy of the E.U. Law was further confirmed, concluding its precedence over national courts among M.S.
Since the E.U. is based on a pact among M.S., their sovereignty has been made familiar due to their destiny and an increasing share transfer to the Community. The Community Law would fail to function if not effectively enforced. The ECJ accepted the E.U. Law to prevail and be directly effective over M.S. national courts. Nonetheless, the fundamental Community Law rule is not established in the Treaties that E.U. Law’s provision should always prevail over M.S. national laws.
Bibliography
Boomberg, Elizabeth and Alexander, Stubb. The European Union: How Does It Work. 2003. Oxford; New York: Oxford University Press.
Borchardt, Klaus-Dieter. The ABC of Community Law, Official Publication of the European Communities, 2000.
Case 26/62, NV. Algemene Transporten Expeditie Onderneming van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1
Case 6/64, Flaminio Costa v ENEL [1964] ECR 585
Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125
Case 106/77, Amminstrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629
Coffey, Peter. The Future of Europe – Revisited, Cheltenham, U.K.; Northampton, MA: Edward Elgar Publishing, 2003.
Fontaine, Pascal. Europe in 12 Lessons, Official Publications of the European Communities, 2004.
Hartley, T.C. European Community Law, 4th Edition, Oxford; New York: Oxford University Press, 1998.
McKay, David. Federalism and European Union – A Political Economy Perspective, Oxford; New York: Oxford University Press, 1999.
Melin, Mats and Schäder, Göran: EU:s konstitution, Norstedts juridik, Stockholm, 1999.
Nelsen, Brent F, and Alexander, Stubb. The European Union – Readings on the Theory and Practice of European Integration, 3rd Edition, Boulder, CO: Lynne Rienner Publishers, 2003.
T., M. Is the German Constitution a Consequence Resulting from Germany’s History? An Essay. 2016. Web.
“The CER guide to the E.U.’s constitutional treaty” Web.