Supremacy, general principles, litigation

1. Supremacy, general principles, litigation

2. Supremacy Supremacy of EC law (Foster p 77-81) Van Gend (1963): Arg: up to national constitutional law to decide on whether int treaty prevails over national ECJ: (new legal order, states have limited sovereignty) Costa v ENEL 1964 …the law stemming from the Treaty is an independent source of law..could not be overridden by domestic legal provisions…integral part of national law… -real powers stemming from limitation of sovereignty -necessary for uniform applcn of law -necessary for effectiveness -pragmatic and purposive interpretation of Treaty law

3. Supremacy Supremacy implications: -no precedence to unilateral and subsequent measures -any conflicting provision is automatically inapplicable, must be set aside (Simmenthal 1978 C106/77) -cannot recourse to national law, not even national constitution to judge validity of Community law (Int Handelsg. C 11/70)

4. supremacy How did MSs receive this? Not all MSs allow easy acceptance of principle • Germany: Int Handelsg 1970: no legal foundation for supremacy, basic rights of German Constitution may not be adhered to, no national check on Comm legln., breach of German constn principles 1974 Solange I: supremacy not accepted (lack of democratic legitimacy, no code of fundamental rights) where there was a conflict, German Constitution re human rights prevail 1986 Solange II: by now, all MSs had ratified the ECHR, therefore, as long as ECJ ensured effective protection of human rights, Ger Const court will not question supremacy and not generally review Comm legislation 1994 Brunner: Germany accepted supremacy but not unconditionally

5. Supremacy • Bananas judgments • Germany brought annulment action against Regulation re common organization of bananas market (preference to ACP states) because: • Violation of non-discrimination, proportionality, fundamental EC rights to trade, to property, GATT provisions • ECJ: rejected • Germany: violation of constitutional rights to property, GATT (higher than EC law since prior to) • Comments: if every MS claimed specific rights, ever closer union not possible BUT sparing use would act as check on ECJ

6. Supremacy • UK -dualist system, no written constitution, parliamentary supremacy -European Communities Act 1972 -direct effect accepted -secondary legislation through Acts, Orders or delegated except under Schedule 2 -ECJ decisions given force of precedence Factortame I, II-it is Parliament which has permitted direct effect and supremacy (therefore could set aside national rule which was in the way of adequate and effective remedy) Conclusion: each MS accepts supremacy, direct effect, but reserves right to “supervise” EC institutions

7. Principles • General principles derived by ECJ as being “higher” • Proportionality • Legitimate expectations • Legal certainty • Non-discrimination and respect for fundamental human rights (but which ones?) • Derived from MS legal systems, or from necessity • Can be used to challenge action of EC institutions + MS action

8. principles Proportionality -is a measure suitable to achieve objective? “Manifestly inappropriate”? - is the measure necessary? - is the measure reasonable/”proportionate”? Generally used to challenge EC measures which excessively restrict rights, to challenge MS measures derogating from EC laws, reduce/strike down excessive penalties, rarely to question MS policy itself as not proportional

9. principles • Proportionality and subsidiarity (Art 5) • Subsidiarity aims to limit institutions’ competence (only if MSs cannot achieve objectives sufficiently + if better achieved at Community level) • Proportionality is re measures themselves • Tanya Kreil v Germany C285/98 (2000)

10. principles • Non-discrimination (arbitrary) • Also in Art 13 + different contexts • Based on a deeper principle of equality • Some discrimination may be objectively justified eg to protect health, public policy

11. principles • Human rights as principles • Initially no HRs in Treaty • Int Handelsg 1970 • Respect for fundamental rights is an integral part of Community law • Nold v Commission 1974 • Such rights derive from MS constitutional traditions, international treaties ratified by MSs (eg ECHR), therefore are basic principles to which all MSs subscribe. • Joint Declaration on Fundamental Rights 1977

12. principles • Why cannot the EC accede to the European Convention on Human Rights 1950? • Opinion 2/94 • Express and implied powers • Art 308? • Nice 2000 Charter of Fundamental rights (European Council) • Constitution 2003 – Charter incorporated as Part II

13. principles • Fundamental rights developed autonomously by ECJ: • Non-discrimination in certain areas (equal pay, between private parties) • Freedom of expression within broadcasting law • Right to fair hearing • Fundamental Rights Charter (civil, political social, economic rights): • Dignity, equality, no human cloning, privacy, freedom of expression, right to work/health care/education etc • Art 37 high degree of env prot + improvement in env quality + sustainable development in all Union policies • ECHR: • Right to life, prohibition of torture/slavery, right to liberty/security/fair trial/effective remedy, freedom of expression/assembly, right to respect for private and family life etc • Protocol 1 protection of property except in public interest, right to education • Protocol 6 no death penalty

14. Judicial remedies and review • Judicial remedies for directly effective provisions must be provided by national courts (but Art 10) • ECJ has provided increasing guidance • Non discrimination • Practical possibility • Penalties must be reasonable • adequate and effective remedies (von Colson) • Effectiveness may require setting aside domestic law (Factortame I)

15. Judicial remedies and review • ECJ requirements for national remedies: • state liability - compensation claims for breach by MS of EC law (Frankovich 6/90, 9/90) • Even where no direct effect provided but • Law intends to confer rights • sufficiently serious breach • Link between damage and breach • Based on art 10, principle of effectiveness, general principles common to MS systems as provided also in art 288 (Factortame III, Brasserie du Pecheur C46/93, 48/93) • Judicially developed principles of state liability (v legislative scheme)

16. Enforcing Community measures • Art 211 by Commission • Art 226 infringement proceedings • Pre-contentious stage, formal notification, negotiation, reasoned opinion (2 months to comply), referral to ECJ • ECJ declares, now may fine (art 228) • Commission v MS • Comm v Fr (C 167/73) • improper implementation • Comm v Belgium re water pollution dir implementation • Cost/complexity no excuse • Comm v UK re recording equipment in road transport • Defence of reciprocity not acceptable

17. enforcing Community measures • By MSs • Art 227 MS v MS • By individuals - may only bring actions • through national courts/direct effect and/or preliminary ruling • Complaints to Commission, to Ombudsman

18. Actions against EC institutions • Art 230 ‘annulment actions’ • direct challenge to legality of Community acts (2 months) • By MS, Council, Commission, EP priviliged applicants • By court of auditors, ECB special privileged • By natural or legal person if of direct and individual concern, non privileged applicant • Plaumann v Commission (C25/62) • For lack of competence, infringement of procedural requirement (Roquette Freres v Council C 138/79), infringement of principles (Nold v Commission C4/73), of Treaty provisions, misuse of power

19. Actions against EC institutions/acts • Art 232 • failure to act • Must be first called to act, then 2 months

20. Actions against institutions/acts • Art 234 • preliminary rulings = indirect challenge to legality of acts • No time limits • Re interpretation of treaty, validity of acts, scope of a right but based on actual dispute • Up to domestic lower court to ask, unless re validity of acts. Last instance must ask. • Doctrine of acte clair • Binding on referring court • Binding from date of enactment of provision unless ECJ rules otherwise

21. Judicial review • Consequences of finding of illegality • Art 230 actions • Declaration that act is void • Void ab initio, ie retroactive unless ECJ states otherwise (time limited, not until another is passed, only parts are void etc) • Art 234 rulings • If void for that court, also void for others • ECJ may order remedial action

22. Reading Folsom: 137-171 the freedoms 178-180 transport policy 181-201 taxation/state aid/government procurement/product liability/consumer protection 217-225 environment policy Energy policy: go to europa.eu.int, click on ‘energy’, then on ‘panorama’, then on ‘overall view on energy policy and action’