Summary Extensive elaboration issue 8 Introduction to International and European Law
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Course
Introduction To International And European Law
Institution
Erasmus Universiteit Rotterdam (EUR)
Here you will find the extensive elaborations of the learning objectives of issue 8 of Introduction to International and European Law.
Books used:
- F. Amtenbrink & H. Vedder, European Union Law
- Cases and Materials International and European Union Law
Problem 8
What is the principle of primacy of EU law?
Autonomy and character of EU law
In the judgement of Van Gend en Loos, the Court had to determine whether article 30 TFEU
had direct application in national law. After setting the Treaty’s objective of creation of an
internal market that is of direct concern to individuals. The Court assessed that EU law is
distinguishable from general international law because member states have limited their
sovereignty in benefit of the Union. The choice between monism or dualism has become
irrelevant. The member states are subjects of the Union, which means they have to comply
with EU law. Individuals and member states can derive mutual rights and corresponding
obligations from EU law in their capacity as its subjects. All of EU law has this character, and
thus applies directly in all states.
In Costa v. E.N.E.L., which focused on the question whether an Italian court could apply for
preliminary ruling for the interpretation of the former EEC treaty. The national government
argued that the court was not able to do so, and that it had to apply national law. The
conclusion in this case is that national law is not able to violate European Law. EU law has
primacy over the national law of member states. It is up to the EU which laws have direct
effect, which also contributes to the autonomy.
The fact that the principle of primacy has not been included in the Treaty does not mean
that it does not exist.
The autonomy of EU law is based on two inseparable fundamental characteristics:
- Direct applicability
- Primacy
Closely related to direct applicability is the direct effect of EU law. The issue of direct
applicability only concerns the law that applies to a certain situation. The mere fact that EU
law applies does not necessarily mean that it will also have effects on the situation to which
it applies. EU law has the effect of domestic law, which means that under certain conditions
governed by EU law, citizens can invoke a rule of EU law within their national legal orders. If
a rule of EU law is incompatible with a rule of national law, a domestic court is required to
set aside such national rules on the grounds of EU law.
Primacy of EU law
The principle of primacy of EU law implies that any substantive conflict between national law
and EU law will be decided in favour of the latter. In Simmenthal, the court of justice decided
that the Union law should be applied in its entirety and protect the rights which the latter
confers on individuals and must accordingly set aside any provision of national law which
may conflict with Union law (Par. 21). This means that from the EU law perspective
constitutional provisions and even fundamental rights enshrined in national laws are
superseded by EU law. The same applies to provisions form international law.
, The Court of Justice often addresses the primacy of EU law in the context of the principle of
sincere cooperation that applies to national courts. Under this approach, it is up to those
courts to guarantee the effet utile of EU law by setting aside all incompatible national laws.
The consequences of the principle of primacy of Eu law are often referred to as
Sperrwirkung, which means that EU law in a specific area precludes action by the member
states in that area to the extent that it is incompatible with the aforementioned EU law. In
order to determine whether a particular EU law has a blocking effect, it is vital to examine
the scope of the EU measure concerned. When a rule of national law falls outside the scope
of Eu law, there is no blocking effect. In the context of its core objectives, EU law often does
not stand in the way of national laws establishing stricter standards of protection. EU action
only has a blocking effect on less stringent measures.
What is direct effect? Do EU primary law and general
principles of EU law have direct effect?
It follows from the autonomous character of EU law that it lays down the conditions
governing its direct effect. The basic condition is that a rule of EU law must be sufficiently
precise and unconditional. The key question facing the Court when determining whether or
not a provision of EU law has direct effect is whether it can be applied by a national court.
Direct effect only exists for those provisions from EU law that are sufficiently clear and
precise and unconditional. Examples are articles 30, 34, 35, 45, 49, 56, 63, 101, 102, 106,
108, 110, 157 TFEU.
At applying EU law at national level, two situations can be distinguished:
- Vertical situation
- Horizontal situation
In vertical situations, EU law is invoked by natural or legal persons against a government
agency of a member state.
In horizontal situations, EU law is invoked by one private party against another. Application
of EU law in such situations is less common, because the majority of provisions in the TFEU
focus on member states. The Court of Justice has accepted the horizontal direct effect of
articles 18, 45, 49, 101, 102 and 157 TFEU.
In order to ensure the uniform interpretation of a provision, the Court can rely on the
substance of the provision of the various modalities of its application at national level. In
doing so, it must navigate between effet utile and the separation of powers and legal
certainty.
Reverse / inverse vertical direct effect: this will occur when a government agency invokes EU
law against a private party. In Van Gend en Loos, the Court is very clear on the effects of EU
law on individuals: Independently of national legislation, EU law not only imposes obligations
on individuals, but is also intended to confer upon them rights which become part of their
legal heritage. This point is somewhat hypothetical, because a government has limited
incentives to seek to sanction actions of its own subjects that are in conflict with EU law.
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