The tension between national perspectives of the relationship between EU and national law, and the CJEU’s perspective
Question:
Despite the clear pronouncement and endorsement of the principle of supremacy by the Court of Justice of the European Union, Member State Courts have accepted a rather qualified version of it.
Critically examine the continuing tension between national perspectives of the relationship between EU and national law, and the CJEU’s perspective.
“European law is based on two fundamental legal doctrines, direct effect and supremacy.”1 The doctrine of supremacy, which has no formal basis in the original Treaty of European Community,2 was first established by the European Court of Justice in the case of Flaminio Costa v ENEL3. The ECJ concluded in Costa that when conflicts arise, EU law always prevails over national law. Moreover, the ECJ argued that “the precedence of Community law is confirmed by Article 189, whereby a regulation ‘shall be binding’ and ‘directly applicable in all Member States’.”4 In other words, this doctrine of supremacy states that “in case, and to the extent, of irreconcilable results in the application of both legal systems to the same situation, the conflicting national law of member states becomes inapplicable.”5 Therefore, throughout this essay, I shall go on to examine the supremacy of EU Law over national law where this dialogue will be observed from the Court of Justice of the European Union’s (CJEU) perspective and from the national perspective of some of the Member States of the EU, taking into account the tension present between the two perspectives.
As mentioned above, the principle of supremacy of EU law over national law was not provided in the EEC Treaty. However, the ECJ was successful in creating a doctrine of supremacy where, both, the Constitutional Treaty and Declaration No. 17 in the Lisbon Treaty cover the principle of supremacy of EU law. 6 Though, the primacy clause found in the Lisbon Treat was dropped later on, and this removal of the clause may have created doubt in some national courts of the
Despite the clear pronouncement and endorsement of the principle of supremacy by the Court of Justice of the European Union, Member State Courts have accepted a rather qualified version of it.
Critically examine the continuing tension between national perspectives of the relationship between EU and national law, and the CJEU’s perspective.
“European law is based on two fundamental legal doctrines, direct effect and supremacy.”1 The doctrine of supremacy, which has no formal basis in the original Treaty of European Community,2 was first established by the European Court of Justice in the case of Flaminio Costa v ENEL3. The ECJ concluded in Costa that when conflicts arise, EU law always prevails over national law. Moreover, the ECJ argued that “the precedence of Community law is confirmed by Article 189, whereby a regulation ‘shall be binding’ and ‘directly applicable in all Member States’.”4 In other words, this doctrine of supremacy states that “in case, and to the extent, of irreconcilable results in the application of both legal systems to the same situation, the conflicting national law of member states becomes inapplicable.”5 Therefore, throughout this essay, I shall go on to examine the supremacy of EU Law over national law where this dialogue will be observed from the Court of Justice of the European Union’s (CJEU) perspective and from the national perspective of some of the Member States of the EU, taking into account the tension present between the two perspectives.
As mentioned above, the principle of supremacy of EU law over national law was not provided in the EEC Treaty. However, the ECJ was successful in creating a doctrine of supremacy where, both, the Constitutional Treaty and Declaration No. 17 in the Lisbon Treaty cover the principle of supremacy of EU law. 6 Though, the primacy clause found in the Lisbon Treat was dropped later on, and this removal of the clause may have created doubt in some national courts of the
Bibliography: 5) Asterios Pilakos (2011), Who is the ultimate arbiter? The battle over judicial supremacy in EU law, European Law Review 6) Claes, M, The National Courts’ Mandate in the European Constitution (Hart,2006) 7) Stone-Sweet, A. and Brunell, T.L. (1998) ‘The European court and the national courts: a statistical analysis of preliminary references, 1961 – 95’, Journal of European Public Policy 5(1): 66–97. 10) BrÎndusa Marian, “The Dualist and Monist Theories. International Law’s Comprehension of these Theories”, Curentul Juridic, The Juridical Current, Vol. 1-2 (2007), June, p. 16-27. 14) R. Petriccione, ‘Italy: Supremacy of Community Law over National Law’ (1986) 11 European Law Review 320. 15) Erin Delaney (2005): Managing in a federal system without an ‘ultimate arbiter’: Kompetenz-Kompetenz in the EU and the ante-bellum United States, Regional & Federal Studies, 15:2, 225-244 16) J 18) Joseph Fleuren (2010). “The Application of Public International Law by Dutch Courts”, Netherlands International Law Review, 57, p. 245-266. 19) René Barents (2009). The Precedence of EU Law from the Perspective of Constitutional Pluralism. European Constitutional Law Review, 5, pp 421446