Brexit, European Union law and supremacy
A reminder to the reader that the first posts referred to this case will differ from previous analysis presented by this blog series TERRITORIAL DISPUTES.
This time the series will introduce the relationship between national law and international law. From there, the relationship between the law in the United Kingdom and the European Union will be explored by presenting the notion of supremacy or primacy (in a nutshell, European Union law has priority over the national legal order of the Member States). Thereafter, the particular emphasis will be on free movement of people, European Union citizenship, free movements of goods, capital and services.
These are the “four fundamental freedoms” that all Member States part of the European Union reciprocally recognize and that the United Kingdom, will give up in 2019).
Failure to include supremacy (or primacy) in Treaties
The principle of supremacy (or primacy) of European Union law is not included in any EU treaty. According to this principle, European Union law has priority over the national legal order of the Member States.
A very brief indication of key documents and references to important European Court of Justice cases, in which the principle of supremacy (or primacy) takes shape.
No inclusion in Treaty of Rome 1957
Inclusion in Treaty Establishing a Constitution for Europe 2004. Rejected
Declaration 17 of Treaty of Lisbon
Opinion of the Council Legal Service of 22nd June 2007
European Union Court of Justice. Case law and supremacy (or primacy) of European Union law
Case Van Gend en Loos (26/62)
The Netherlands adopted an import tax contrary to art.12 E.E.C. The question before the Court was “whether individuals can directly derive rights from the Article that are enforceable by the judge.” The Court laid down that art.12 E.E.C. had internal effect. It decided that the internal effect of Treaty articles should not be left to national legal systems and that national courts should be informed whether E.E.C. law could have direct effect. Article 189 E.E.C. already implied that Regulations had direct effect. However, the Court held that provisions of the Treaty could be suitable for judicial enforcement in the national courts.
The subject of primacy was not directly addressed by the Court because art.65 of the Dutch Constitution held: “Provisions of agreements which, according to their terms, can be binding on anyone shall have such binding force after having been published.” Art.66 of the Dutch Constitution also provided: “Legislation in force within the Kingdom shall not apply if this application would be incompatible with provisions of agreements which are binding upon anyone and which have entered into force before or after the enactment of such legislation.”
Primacy was not an issue in Van Gend en Loos because the Constitution provided for the immediate incorporation and primacy of international agreements once ratified – primacy of these agreements even over later acts of the legislature. The principal question for the Court was whether provisions of the Treaty could, in practice, be enforced before the national courts across the Community. This could be deemed an inherent part of the interpretive function of the Court of Justice.
Case 106/77 Simmenthal  E.C.R. 629
Respondent company, having imported beef from France into Italy, brought action against applicant (Ministry of Finance) claiming repayment of fees which had been charged to it for veterinary inspection at frontier.
Inspection and charges implemented by law in 1970. Respondent claimed inspection contrary to art.30 E.E.C. as M.E.Q.R. (now art.36 T.F.E.U.)
National court (Pretore di Susa) accepted that there was conflict between art.30 E.E.C. and law of 1970 (passed subsequent to Italian act incorporating E.C. law).
Italian judge was unclear whether he should apply E.C. law immediately to case or wait for constitutional court to declare law invalid.
When national court is called upon to apply provisions of E.C. law, under duty to give full effect to provisions, if necessary by to apply any conflicting provision of national legislation, even if adopted subsequently.
Not necessary for national court to request or await prior setting aside of provision by legislative or other constitutional means.
National law or Community law
No legislative or constitutional rule could prevent national courts from protecting rights conferred by provisions of Community legal order.
Not necessary for courts to request or await setting aside by national constitutional authorities of any national measures affecting direct & immediate application of Community rules.
Tomorrow the blog series will present another ECJ central in defining the principle of supremacy or primacy.
NOTE: This post is based on Chapter 3 in Núñez, Jorge Emilio. 2017. Sovereignty Conflicts and International Law and Politics: A Distributive Justice Issue. London and New York: Routledge, Taylor and Francis Group.
Tuesday 12th February 2019
Jorge Emilio Núñez