Study Notes on the Relationship Between EU Law and National Law: Primacy

EU Law and National Law: Primacy

I. Abstract and Overview

  • The chapter discusses the doctrine of primacy of EU law, as developed by the European Court of Justice (ECJ) based on the conception of the 'new legal order'.

  • The ECJ ruled that creating a uniform common market would be undermined if EU law could be subordinate to national law.

  • National courts must give immediate effect to EU law and set aside any conflicting national law.

  • EU law takes precedence over national law, including national constitutions.

  • The chapter reviews qualifications imposed by national courts regarding the primacy of EU law and its relevance post-Brexit for the UK.

II. Central Issues of Primacy

A. Historical Development of the Doctrine of Primacy

  • No formal basis for the primacy of EU law existed in the original EC Treaties.

  • The doctrine developed in the 1960s through early ECJ rulings, particularly in Van Gend en Loos and Costa v ENEL.

  • Van Gend en Loos established that the Community represented a new legal order of international law where states transferred part of their sovereignty.

  • Costa v ENEL set the precedence of EU law over national law, emphasizing that member states' obligations under the treaty cannot be unconditionally overridden by domestic law.

B. ECJ's Justifications for Primacy

  1. Contractarian Argument: Primacy arises from the agreement made by Member States when they joined the EU.

    • The Treaty created a legal order that is integral to Member States' legal systems.

  2. Functional Argument: The aims of the Treaty cannot be achieved unless all Member States respect the primacy of EU law.

  3. Egalitarian Argument: If national law could take precedence over EU law, it would lead to discriminatory applications of law among Member States.

  4. Analytical Argument: Obligations from the Treaty would be contingent rather than unconditional if they could be questioned by subsequent national legislation.

III. ECJ Case Law on Primacy

A. Framework of Primacy

  1. Costa v ENEL (1964)

    • Established the mechanism by which EU law can be integrated into national legal orders.

    • The ruling reinforced that EU law cannot be overridden by national law due to its nature as a source of law.

  2. Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970)

    • The ECJ ruled that validity must be judged independently of national law to avoid impairing the uniformity of EU law.

  3. Subsequent rulings affirmed that hard national law could not impede directly applicable EU laws, irrespective of their legal nature.

B. National Laws Precedence

  • The Simmenthal case confirmed that the primacy of EU law applied regardless of whether national law predated or postdated EU law.

  • The ECJ ruled that existing conflicting provisions of national law must be disregarded immediately.

C. Direct Applicability and Direct Effect

  • The distinction between EU law that has direct effect (i.e., creates enforceable rights) and other forms of EU law is important.

  • Popławski case established that courts must refuse to apply conflicting national law if EU law possesses direct effect.

IV. National Courts and the Scope of Primacy

A. Interactions between EU and National Courts

  • The acceptance and application of EU primacy across Member States remain inconsistent, fostering a dual landscape.

  • Concerns developed about national courts' willingness to apply the primacy doctrine, asserting obligations that conflict with fundamental constitutional principles.

B. Case Studies on Qualification of Primacy from National Courts

  1. Germany:

    • The Bundesverfassungsgericht (BVerfG) articulated specific limits to EU law based on fundamental rights and constitutional identity.

    • PSPP/Weiss case highlighted judicial tensions between national courts and the ECJ, ultimately challenging EU law’s primacy.

  2. Poland:

    • Initially accepted the primacy of EU law, later challenged by government-affiliated courts post-2015.

  3. Italy:

    • Similar patterns of acceptance, but recent cases indicated limits based on constitutional identities.

  4. Romania:

    • Initially EU-friendly responses morphed post-2018 where national courts increasingly limited primacy based on constitutional checks.

V. Article 4(2) of the TEU and National Constitutional Identity

  • Article 4(2) TEU states that the Union must respect national identities, allowing Member States' constitutional principles to impact the function of EU law.

  • Courts have increasingly invoked this article during constitutional conflicts, balancing pragmatic interactions between national laws and EU regulations.

VI. Conclusion

  • The primacy of EU law exemplifies a bi-dimensional framework reliant on both EU and national legal systems, still contested in interpretation and application across member states.

  • International and national forces in conjunction with judicial discourse will continue impacting the dialogue on primacy between EU law and national law.

VII. UK Post-Brexit: Changing Landscape

  • The European Union (Withdrawal) Act 2018 fundamentally altered the landscape for EU law applicability in the UK.

  • Key sections specify the handling of conflicts between pre-Brexit EU law and new national legislation while highlighting the evolving status of the CJEU's authority in UK law.

  • Section alterations impose new parameters regarding the supremacy principle effective post-implementation period completion day, indicating a shift in judicial focus.

VIII. Further Reading

  • Suggested literature and articles encompass the evolution of EU law, the interaction of national courts, and ongoing developments concerning constitutional debates in the EU.