IX The Relationship Between

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1 IX The Relationship Between EU Law and National Law

2 The Hierarchical Model: The Doctrine of Supremacy as established by the EU Court of Justice

3 The principle of supremacy of EU law over national law in the Member States has never been protected in the Treaties. Only the Constitution for Europe, in Article I-6 tried to codify this principle: The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States. The doctrine has evolved only through the jurisprudence of the Court of Justice. 3

4 The principle of supremacy was first enunciated in Costa v. ENEL case (Case 6/64, [1964]). As was ascertained by the Court of Justice, 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 limitation of sovereignty or transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have created a body of law which binds both their nationals and themselves. The integration into the laws of the each Member State provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, makes it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. the Treaties have established a specific legal order. 4

5 It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. The Court argues that, without supremacy, Treaty obligations would not become unconditional but rather merely contingent if the Member States could set aside EU law by adopting subsequent national legislation. 5

6 The Court confirmed in 1991, in its opinion on the draft of the Agreement for establishing the EEA, that: As the Court of Justice has consistently held, the Community Treaties established a new legal order for the benefit of which the States have limited their sovereign rights, in ever wider fields, and the subject of which comprise not only Member States but also their nationals The essential characteristics of the Community legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions which are applicable to their nationals and to the Member States themselves. 6

7 The case of Internationale Handelsgesellschaft concerned the question of whether EU law should have supremacy over the Constitutions of the Member States and especially if EU law takes primacy over the fundamental rights provisions in national Constitutions. The Court stated: 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. EU law has full suprmacy over all national law whatever the legal status of the national law. 7

8 The Simmenthal ruling (Case 106/77, [1978]) laid clear the practical implications of the supremacy doctrine: 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 State 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. Indeed any recognition that national legislative measures which encroach upon the field within which the Community exercises its legislative power or which are otherwise incompatible with the provisions of Community law had any legal effect would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and would thus imperil the very foundations of the Community. 8

9 The Court of Justice creates remedy to disapply national legislation In the Factortame case (Case C-213/89 [1990]), the Court of Justice stated that where a national court, in a case before it concerning EU law, considers that the sole obstacle which precludes it from granting interim relif is a rule of national law, it must set aside that rule. Directly applicable provisions of EU law make any conflicting provision of national law inapplicable, also national rules of procedure. 9

10 The principle of supremacy means that all the EU law is regarded as a supreme body of law, which prevails over the entire body of national legal provisions, irrespective of their position in the national legal hierarchy, and as a logical consequence renders any conflicting national law invalid. This principle operates as a grand structural principle of integration from which all the other structural principles derive: - Principle of direct effect; - Principle of conferral (which requires all competences that have not been explicitly conferred on the EU to remain with the Member States. However, as the competences can never be laid down in a watertight way so to exclude any conflicts about their exact allocation in concrete cases, the supremacy mandates that a final resolution of such conflicts (Kompetenz-Kompetenz) is a prerogative of the EU level); - Principle of pre-emption (in the fields where the EU has policy making competences the Member States are not only precluded from enacting the legislation contrary to EU law, but are furthermore not allowed to take any action at all); and - Duty of consistent interpretation. 10

11 This Model in action: The Slovenian Case Art. 3a, par. 3, Slovenian Constitution Legal acts and decisions adopted within international organisations to which Slovenia has transferred the exercise of part of its sovereign rights shall be applied in Slovenia in accordance with the legal regulation of these organisations. Supremacy could be a threat for the protection of human rights of Slovenian citizens: e.g. a specific human right could be protected in Slovenian Constitution but not in the EU legal order. As consequence, EU law prevail on Slovenian constitutional provision. 11

12 The Reaction of National Courts and the principle of primacy

13 a) Conditionally Hierarchical Model Supremacy is limited to the ambit of a respective legal order and does not extend beyond it. Each law, EU and national, is supreme within its own sphere. The relationship between the EU and national legal orders is consequently not determined by the supremacy of any of them. While each legal order is internally hierarchically structured with the supreme legal act on the top of its hierarchical legal pyramid, there is no hierarchy between the EU and national legal orders. The relationship between the EU and national legal orders is instead of the principle of supremacy governed by the principle of primacy. The principle of primacy regulates the relationship between these autonomous legal orders. 13

14 The principle of primacy requires that, in the case of a conflict between the EU and national law, the conflicting national legal provisions, irrespective of their form and time of entry into force, must be disapplied. The consequences for national law beyond disapplication are left to the discretion of national authorities and to their procedural autonomy exercised within the limits set by the national law. Primacy is therefore not about validity and can not lead to the national law s invalidation, the same, of course, applies vice versa. As the ECJ can never invalidate national law, so the national courts cannot invalidate EU law. The duty to disapply arises only after three conditions have been met: - First, there must be a conflict between EU and national law; - Second, the EU law must be validly adopted within the scope of EU competences; - Third, the EU law must not violate the fundamental principles of the constitutional identity of a Member State as defined by that State. 14

15 This Model in action: The Italian Constitutional Court case-law Since the ratification of the Treaties of Paris and Rome, the constitutional foundation of the Italian adhesion to the European integration process has been provided by Article 11 of the Constitution which provides that Italy can accept, on the same conditions as other countries, those limitations of sovereignty that are necessary to take part in international organisations aimed at fostering peace and justice among nations. 15

16 The initial approach: Costa/ENEL, No. 14, 7 March 1964: The Italian courts denied supremacy to EU law, the Constitutional Court holding that in the event of a conflict between two norms the one later in time should take precedence. Reaction of the EU Court of Justice: Costa v. ENEL, Case 6/64, [1964] During the 1970s: Frontini v. Amministrazione delle finanze dello Stato, No. 183, 1973: - The Constitutional Court was willing to accord primacy to EU law if it was later in time than the relevant national law; but - Where the EU norm preceded the national law the former would be applied only after a finding of unconstitutionality by the Constitutional Court. Reaction of the EU Court of Justice: Simmenthal, Case 106/77, [1978] 16

17 The current approach: SpA Granital v. Amministrazione delle Finanze, No. 170, 8 June 1984: in the case of a conflict between the EU and national law, the Constitutional Court accepted that EU norms which had direct effect should take precedence over national norms, and should be applied by ordinary judges, irrespective of the time when two norms were enacted. As a consequence, the conflicting national legal provisions must be disapplied. However, the Constitutional Court has limited its acceptance of EU law primacy. It will not obey to the EU legislation, where this is not compatible with fundamental values of the Italian Constitution, such as fundamental rights (this position was already asserted in Frontini case). 17

18 In a case of conflict between fundamental rights protected by the Constitution and EU law, national judges must not disapply the conflicting national constitutional provision. The national judges must bring the situation before the Constitutional Court. However, before of this referral, national judges are obliged to ask the Court of Justice of the EU a preliminary ruling on the interpretation of the EU law concerned. After the ruling of the CJEU, national judges will brought the case before the Constitutional Court only if the conflict between fundamental rights protected by the Constitution and EU law persists. 18

19 b) The Heterarchical Model There is no hierarchy between EU and national legal orders. The autonomous legal orders EU and national - constitute a common whole, but are not part of a single hierarchical pyramid of legal sources. The relationship between them is heterarchical and is instead of principle of supremacy governed by the principle of primacy. 19

20 This Model in action: The Spanish case The Spanish Constitutional Tribunal recognised that in Spain an autonomous EU legal order co-exists with an equally autonomous Spanish legal order. It stressed that while the EU founding Treaties were concluded by the Member States in accordance with their constitutional requirements following the procedures of international law, once the EU legal order came into existence its validity cannot be assessed against the constitution of any of the Member States, but exclusively against the EU Treaty itself. The Spanish Constitution, like most of the constitutions of the Member States, was amended to enable the entry of EU law on the Spanish territory. As a result, the Tribunal found the supremacy of the Spanish Constitution compatible with application systems that confer priority to the application of norms of other legal systems, such as EU law, as long as these do not detract from certain national constitutional limits that could under no circumstances become unrecognisable. At the same time these written and unwritten national constitutional limits should not be construed broadly. 20

21 The Evolution of the Doctrine of Supremacy according to the Treaty of Lisbon

22 Declaration (No. 17) concerning primacy, attached to the Final Act of the Treaty of Lisbon: The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, 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. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260): Opinion of the Council Legal Service of 22 June 2007 It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/64) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice. 22

23 The EU law can only enjoy supremacy if it is enacted within the scope of the EU competences that have been exercised in accordance with the principles of subsidiarity and proportionality. The supremacy of EU law is limited by the respect for the member States identities. Art. 4, par. 2, TEU: The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State. 23

24 Constitution-friendly interpretation Court of Justice, Case C-112/00, Schmidberger v Austria: since both the Community and its Member States are required to respect fundamental rights, the protection of those rights is a legitimate interest which, in principle, justifies a restriction of the obligations imposed by Community law, even under a fundamental freedom guaranteed by the Treaty such as the free movement of goods (para. 74) 24

25 Constitutional reservations within EU law Council Framework Decision 2008/913 of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Art. 7, para. 2: This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media, as they result from constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability. 25

26 National (constitutional) courts are clearly entitled to police the boundaries of their legal orders and to determine what their irreducible epistemic core requires and what the identity of their legal order ultimately is. If the Member States feel that their membership in the Union continuously threatens their irreducible constitutional identity, Art. 50 TEU allows for their lawful withdrawal from the EU in accordance with their constitutional requirements. 26

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