TD Droit Européen: Supremacy

“Our sovereignty has been taken away by the European Court of Justice … Our courts must no longer enforce our national laws. They must enforce Community law … No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses — to the dismay of all.”

— Lord Denning MR, 1990

Lord Denning by comparing the Community law to a tidal wave, shows by his words the power that the European right has on the State of the European Union.

The idea of Lord Denning intended as a principle of supremacy

To understand what supremacy is, it is first important to see how it applies and so put forward the concept of direct effect (1.). Then a brief history may help us to understand where is supremacy born and how does have she develop (2.). After this historical survey we can draw a general conclusion of what supremacy is today (3.) finally we would see the effects Supremacy of European Union produce in the European States(4. )

Direct effect

It’s means that European union law ( primary and secondary law) create rights and obligations for States institutions and citizens.

There is two sources of European law, primary ( treaties, protocols, ) and secondary law (directive, regulation and decisions which are defined in article 288 of the TFEU) and in this sources there are vertical and horizontal effects.

Vertical effects in primary law “is of consequences in relations between individuals and the State. This means that invoke a European provision in relation to another individual.”

Horizontal effects in primary law “is a consequential in relations between individuals. This means that an individual can invoke a European provision in relation to another individual.”

In secondary law there are regulations which are binding entirely and are directly applicable in member state. There are also decision which can be apply at member states or at individuals and which binds the only those to whom is was written and finally the directive which only explain the goal to achieve and the states must use forms and means to achieve the goals.

Historical events which lead to supremacy

To understand how supremacy has been created it’s important to analyze some cases which are very relevant for the principle of supremacy.

For any case it’s important to understand the facts which will invoke a legal question and the decision given by the ECJ.

The first case Van Gend en Loos v; Nederlands Administratie Belastingen, ECJ Case 26/62 (5th february 1963) define the European Union as an independent legal order from the member state.

About the facts there is a Belgian transport company called Van Gend en Loos which are responsible for transport accros borders of Netherlands and West Germany. In 1962 the company is subject of a new import tax in the German Dutch border. The company disagree to pay this new tax and refer to the article 12 of the Treaty of Rom which says that : “States shall refrain from introducing between themselves any new customs duties on imports and exports and charges having equivalent effect” [1]

In this case the legal question was to know if the citizens (and companies) are directly affected by EU Community law on their national territories?

The decision was that “the community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields.” [2]

The important point is that the citizens car invoke European law to challenge national policy just when this European law have direct effects of theirs. This conducted of the idea of supremacy in which the court want to allow different individuals rights to the different provisions of the Treaty and conducted to the case ENEL which pronounced explicitly the principle of supremacy.

About the case Costa v. Ente Nazionale per l’Energia Elettrica, ECJ Case 6/64 (15 july 1964)

The facts happen in 1962, at this time Italy decided to nationalize the sector of production and distribution of electricity. Many private companies was bringing together.Flamino Costa which was a shareholder in Edison Volta because of this nationalization lost his rights to dividends and refused to pay its electricity bill. Flaminio Costa argue that the nationalization violated a num of provision of the treaty of 1957. That’s why the ECJ has been asked to make an interpretation of this treaty.

In this case the legal question was to know if the nationalization violated a number of provisions of the treaty of EEC in 1957.

The important are that even if they try to make European law hierarchically supreme to national law they enounced the principle of supremacy which means that the national court have to reflect the European law provision for supremacy.

In the followed years this Supremacy are developing and become to prevail over the constitution of the member state, the case of International Handelsgesellschaft, ECJ Case 11/70 (17thth December 1970) the applicant wanted to invalided the European Community regulations because it was violating the fundamental rights which was written in the constitution of his state, that’s why he asked the European court of Justice and she replay her that “ the validity of a community instrument or its effect within a member State cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that States constitutions or the principles of a national constitutional structure”

Than the case Simmenthal, ECJ Case 106/77 (9th March 1978) emphasized that supremacy of European Union law touch previous and future national legislation. In fact, in this case the judge didn’t know if he have to apply European community regulation or Italian law provision which was entered in force after the signature of this treaty. That’s why the Italian judge ask at the European court of justice two questions, the first question is the most important because she ask when a rule of European Community law is directly applicable to the states and the citizens (direct effect) does it means that any national law that came into force before or after this rule of European community law should be regarded as inapplicable ?

The answer of the European court of justice was yes because there is a engagement of member state attributed to the treaty so the judge must not apply the national rule passed before or after a treaty which would be contrary to European Community law.

After this case the Factortame case, ECJ Case C-213/89 (19th june 1990) arrive, which will make the conclusion for all previous case and the future case that national judges must just ignore her national law if there are a conflict between national and European law and must than applied European law. Because this case confirms the principle of primacy of EU Community law

In conclusion we can say that the supremacy has developed from decision given from the European Court of Justice and which at first not very important was but now which are a crucial principle of European law.

A general definition of supremacy:

For making a good decision of supremacy we have take four definition of what supremacy is.

For Renata Juzikiene she says that «  The principle of the supremacy of the EU Community law generally means the supremacy of the EU Community law over national legal acts. This principle has two aspects: 1) institutions and courts of the member state must interpret its national law in the way that it conforms with the EU Community law; 2) if it is impossible or collision is obvious, the institution or court must apply EU legal act, irrespective to what is a national provision.

For the dictionary Collins the definition of supremacy is 1. Supreme power, authority. 2 the quality or condition of being supreme.

For the vocabulaire juridique par Gérard Cornu :  « Primauté en vertu de laquelle une source de droit s’impose à celles qui lui sont subordonnées dans la hiérarchie des normes. Ex. suprématie du traité sur la loi supématie de la loi sur le décret. – du droit communautaire. Syn. Primauté du droit communautaire.

For Mister Morini Alessandro “supremacy is the capacity if EU law to prevail over incompatible rules of national law, notwithstanding their being adopted before or after the relevant provisions of EU Community law.”

The important things which are in all definitions is at first that supremacy is a supreme power , which is over national acts, which make that national law must be in conformity with EU Community law, which say that European Community law prevail and last things is that there is a hierarchy.

Also the definition we can made with all this important things is :” Supremacy of European Community law is hierarchically supreme over national law, that’s why the interpretation of national law must be in conformity with European Community law and if there is not in conformity European Community law prevail”.

Different points about Supremacy.

Introduction of European Community law in national law.

The European Community law is integrate in the national law by two principles.

-The first principle since the case of Costa v. Ente Nazionale per l’Energia Elettrica, ECJ Case 6/64 (15th july 1964) invoke the obligation of all member state to transpose immediately the European Community law in national law.

It’s the principle of immediate applicability.

-The second principle is when the European Community case is transpose he created rights for citizens to invoke him in front of a court and it create too obligations for the citizens. For the judge he create the right to use him for resolve a case and the obligation to receive the lawsuit which are justified by the European Community law.

In the TUE article 4 §3 he also justify the obligation of national jurisdictions to assure the respect for citizen to have the right to use the European Community law.

It’s the principle of direct applicability

The goals of Supremacy

The treaty are not ordinary because they create a new juridical order which limited the power of the sovereignty of the state.

The treaty create new rights and obligation for citizens which can asked at her state to respect the transfer of sovereignty they have do in the treaty. Also so they protect the citizens her rights and that guarantee the efficiency of the European Community law.

To resolve contradiction between national and European Community law by making European Community law superior to the national law, the declaration annexed to the treaty of Lisbon confirm this goals because it’s written that “ ???”

Is to continue to develop the integration in national law of the European Community law in order to avoid the extinction of this law.

The Impact of Supremacy

European Community law by the help of the supremacy impose to national authorizes to respect her, so the legislator is oblige to abrogate the national norm which is contrary to European Community law and the administration and judges shouldn’t apply such kind of law which is contrary.

In conclusion it’s important to see the evolution of the supremacy. At first member state wouldn’t never image that a supreme norm could reproach a lot of state around the idea of a federal nation. Even if the “Zurich Speech” by Winston Churchill where he argued about “United State of Europe” have no real sense in 1946, today we could say that we are in front of a sort of a federal state like United States even if it’s not officially but even the draft of treaty for a constitution was ratified by almost any member states except France and Netherlands, so the supremacy importance in the European Union law has been developing and is steal developing in a very important way. Where Supremacy will lead the European Union in the next years?