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International and European Law SummaryMeeting 7: the European Union in the world
Chapter 3 Sovereignty and sources of law
Absolute national sovereignty is lost. The question is whether this is a price worth paying for the benefits of EU membership.
3.1 Sovereignty
The doctrine of parliamentary sovereignty is clearly in conflict with the full recognition of EU law in the UK. Since the UK
does not have a formal written constitutional document which could be amended to give effect to EU law, the European
Communities Act 1972 provided the means by which priority of EU law could be incorporated into national law.
» Section 2(1) of the European Communities Act 1972
» Section 2(4) of the European Communities Act 1972
The role of the Court of Justice
There is no mention of supremacy of EU law in the founding Treaty of Rome or subsequent treaties; rather, it is a judicial
concept which has been developed through teleological or purposive reasoning. The Court of Justice in developing
supremacy has given effect to the intention of treaty-makers, found in article 10 EC. (Article 4(3) TEU).
It can be observed from article 10 EC and article 4(3) that neither of them mentions supremacy or primacy in
relation to EU law and national legislation, though there is an implied obligation to give effect to the Treaty obligations, even
if this means disapplying national law.
Van Gend en Loos:
The Court considered whether a litigant before the national court could rely directly upon a Treaty Provision.
The Court recognized that the EU Treaties were not simply new additions to international law but rather a new legal order in
which Member States have limited their sovereignty and to which they are subject.
Costa Enel:
The Court ruled that EU law was part of the legal systems of the Member States and had to be applied by national courts.
There had been a transfer of sovereignty to the EU and it was integral to this new legal system that EU law took precedence
over later, inconsistent, national law.
It also rules that Member States have a legal obligation to ensure that the rights within the Treaty are equally
available in all the Member States and that no national rules can restrict EU law rights.
Simmenthal I/II:
A national court should disapply national legislation which conflicted with EU law, without waiting for it to be repealed by
legislative or other means.
Factorame I:
The Court ruled that despite the provisions of national law, the national legislation could and should be suspended pending a
conclusive ruling on its validity. Rights under EU law could not be truly effective if those who sought to enforce them were
prejudiced by the operation of the allegedly conflicting national legislation while the issue was begin resolved.
EU law will prevail over national laws:
1) Absolute sovereignty may be regained by withdrawing from the EU
2) In those areas where the EU has no competence, such as defence and tax, sovereignty is, for the time being,
intact.
3.2 Attribution of powers to the EU
The fundamental rule is that the EU may only act if the Treaty has given power to do so, and the exercise of such power is
subject to the principle of subsidiarity, article 2 TFEU.
If the treaty does not specifically give the EU power to act or where the treaty has failed to provide the necessary
power in another treaty provision, article 352 TFEU provides an alternative treaty base for new measures. However, it
requires unanimity among the Member States.
3.3 The principles of subsidiarity
EU competence arises from the treaty which provides a legal foundation for all EU action. In some instances, the EU has
exclusive competence to act, whereas in others it shares competence with the Member States. In those circumstances when
the EU shares the competence, the principle of subsidiarity implies which is used to determine whether legislative action
should be taken at the EU or national level.
Subsidiarity is concerned with the complex issue of allocation of competence between Member States and the EU
institutions.
Vodafone:
The Court made very clear that when the operation of the international market is at issue, then only through EU legislative
action will its integrity be preserved.
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