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Summary probleem 7 Introduction to International and European Union Law
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Working group results problem 7 Introduction to International and European Union Law
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Problem 7 IELLearning objecti ves
1. What is the principle of primacy of EU law?
Principles governing the relation between the EU, the member states and private parties
Traditional international cooperation is fully bound to the desires of each and every member
state involved, but this is different for the EU.
- The Court of Justice has declared EU law to be autonomous Autonomy is one of
the requirements for a legal order to exist.
- EU law can create rights and obligations for private parties (non-state actors) in and
of itself. The creation of these rights and obligations does not depend on member
state intervention.
Fundamental principle in relations between EU, Member States and private parties:
the autonomy of EU law.
A desire to ensure the full effect or effect utile of EU law drives much of the Court of Justice’s
case law in this field.
The character and autonomy of EU law
EU law is adopted by means of international cooperation between a group of states.
The member states are responsible for adopting and amending EU primary law – or at least
the Treaties.
International law is regarded as a system that operates between states (the bilateral
relation), thus leaving it up to them to determine the impact of such law on the legal
position of their citizens (the trilateral relation).
The member states of the EU are no longer free to determine this trilateral relation.
The European Union’s decision-making procedures do not always grant the member states a
veto. In international law, decision-making often requires unanimity.
26-62 Van Gend & Loos (Preliminary Ruling, 5 February 1963)(p.541)
The Court of Justice had to determine whether ex Article 12 of the EEC treaty (art. 30 TFEU)
had ‘direct application in national law’. The case was prompted by a dispute between Van
Gend en Loos and the Netherlands Inland Revenue Administration concerning the
compatibility of a specific import duty with ex Article 12 of the EEC Treaty. After setting the
Treaty’s objective of the creation of a common market (now internal market) that is of direct
concern to individuals, observing the European institutional framework ‘endowed with
sovereign rights’ and the presence of the preliminary reference procedure, the Court of
Justice said that the Community constitutes a new legal order of international law for the
benefit of which the states have limited their sovereign rights.
Conclusions from a closer look:
- The CJEU distinguishes it from all other types of law on the basis that the member
states have limited their sovereignty for the benefit of the Community (Union).
- The member states are also subjects of the Union they helped create, which means
that they are obliged to comply with EU law. The application of EU law in the national
legal order, called the direct effect of EU law, is actually a matter of EU law, and not
for the member states to decide.
, Autonomy of EU law: whatever the member states have decided for themselves as regards a
monist or dualist approach to international law, is irrelevant for EU law.
Case 6/64 Costa v. ENEL (Preliminary Ruling, 15 July 1964)(p.513)
Focused on the question whether an Italian court could apply for a preliminary ruling for the
interpretation of the former EEC Treaty. The Italian government had argued that the court
was not competent to do so on the grounds that it was obliged to simply apply Italian law.
The judgement is similar to van Gend en Loos, but went a little bit further. National law
cannot violate European law; EU law has primacy over the national law of the member
states. It is up to the EU to determine whether its laws have direct effects. This constitutes
the autonomy of the European legal order.
The member states are not always willing to accept the autonomy of EU law in the field of
police and judicial cooperation in criminal matters. Yet, with the entry into force of the
Treaty of Lisbon, framework decisions disappeared and were replaced with the legal
instruments from the former EC Treaty that were held to be autonomous by the Court of
Justice.
So the autonomy of EU law is based on two inseparable fundamental characteristics:
- Direct applicability
- Primacy
EU law has the same effect as domestic law, which means that under certain conditions
governed by EU law a national can rely on a rule of EU law in the context of the national legal
order.
The full effect of EU law in the national legal orders of the member states
EU primary law is autonomous in nature, which is a function of its primacy and direct effect.
These two principles govern the effects of EU law in the national legal orders of the member
state. The path to such effects often runs through the national courts, where individuals can
rely on EU law.
Primacy of EU law
The principle of primacy of EU law implies that, once the hurdle of the application of EU law
at national level has been cleared, any substantive conflict between national law and EU law
will be decided in favour of the latter.
Case 106/77 Simmenthal II (Preliminary Ruling, 9 March 1978)(p. 525)
The CJEU was very clear that every national court must apply Community law in its entirety
and protect rights which the latter confers on individuals and must accordingly set aside any
provision of national law which may conflict with it, whether prior of subsequent to the
Community rule.
So the lex posterior doctrine does not apply to conflicts between national and EU law and
monism and dualism are irrelevant to shape the hierarchy of EU and national law.
The CJEU only discusses national law in general terms and does not consider its internal
hierarchy. This means that from the EU law perspective constitutional provisions (as in
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