Supremacy, general principles, litigation. 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
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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
-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)
How did MSs receive this?
Not all MSs allow easy acceptance of principle
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
-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
respect for fundamental human rights (but which ones?)
-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
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’