Supremacy, general principles, litigation

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Supremacy, general principles, litigation
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Supremacy

• Supremacy of EC law (Foster p 77-81)
• Van Gend (1963)
• Arg up to national constitutional law to decide
  on whether int treaty prevails over national
• ECJ (new legal order, states have limited
  sovereignty)
• Costa v ENEL 1964
• the law stemming from the Treaty is an
  independent source of law..could not be
  overridden by domestic legal provisionsintegral
  part of national law
• -real powers stemming from limitation of
  sovereignty
• -necessary for uniform applcn of law
• -necessary for effectiveness
• -pragmatic and purposive interpretation of Treaty
  law

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Supremacy

• Supremacy implications
• -no precedence to unilateral and subsequent
  measures
• -any conflicting provision is automatically
  inapplicable, must be set aside (Simmenthal 1978
  C106/77)
• -cannot recourse to national law, not even
  national constitution to judge validity of
  Community law (Int Handelsg. C 11/70)

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supremacy

• How did MSs receive this?
• Not all MSs allow easy acceptance of principle
• Germany
• Int Handelsg 1970 no legal foundation for
  supremacy, basic rights of German Constitution
  may not be adhered to, no national check on Comm
  legln., breach of German constn principles
• 1974 Solange I supremacy not accepted (lack of
  democratic legitimacy, no code of fundamental
  rights) where there was a conflict, German
  Constitution re human rights prevail
• 1986 Solange II by now, all MSs had ratified the
  ECHR, therefore, as long as ECJ ensured effective
  protection of human rights, Ger Const court will
  not question supremacy and not generally review
  Comm legislation
• 1994 Brunner Germany accepted supremacy but not
  unconditionally

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Supremacy

• Bananas judgments
• Germany brought annulment action against
  Regulation re common organization of bananas
  market (preference to ACP states) because
• Violation of non-discrimination, proportionality,
  fundamental EC rights to trade, to property, GATT
  provisions
• ECJ rejected
• Germany violation of constitutional rights to
  property, GATT (higher than EC law since prior
  to)
• Comments if every MS claimed specific rights,
  ever closer union not possible BUT sparing use
  would act as check on ECJ

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Supremacy

• UK
• -dualist system, no written constitution,
  parliamentary supremacy
• -European Communities Act 1972
• -direct effect accepted
• -secondary legislation through Acts, Orders or
  delegated except under Schedule 2
• -ECJ decisions given force of precedence
• Factortame I, II-it is Parliament which has
  permitted direct effect and supremacy (therefore
  could set aside national rule which was in the
  way of adequate and effective remedy)
• Conclusion each MS accepts supremacy, direct
  effect, but reserves right to supervise EC
  institutions

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Principles

• General principles derived by ECJ as being
  higher
• Proportionality
• Legitimate expectations
• Legal certainty
• Non-discrimination and
• respect for fundamental human rights (but which
  ones?)
• Derived from MS legal systems, or from necessity
• Can be used to challenge action of EC
  institutions MS action

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principles

• Proportionality
• -is a measure suitable to achieve objective?
  Manifestly inappropriate?
• - is the measure necessary?
• - is the measure reasonable/proportionate?
• Generally used to challenge EC measures which
  excessively restrict rights, to challenge MS
  measures derogating from EC laws, reduce/strike
  down excessive penalties, rarely to question MS
  policy itself as not proportional

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principles

• Proportionality and subsidiarity (Art 5)
• Subsidiarity aims to limit institutions
  competence (only if MSs cannot achieve objectives
  sufficiently if better achieved at Community
  level)
• Proportionality is re measures themselves
• Tanya Kreil v Germany C285/98 (2000)

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principles

• Non-discrimination (arbitrary)
• Also in Art 13 different contexts
• Based on a deeper principle of equality
• Some discrimination may be objectively justified
  eg to protect health, public policy

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principles

• Human rights as principles
• Initially no HRs in Treaty
• Int Handelsg 1970
• Respect for fundamental rights is an integral
  part of Community law
• Nold v Commission 1974
• Such rights derive from MS constitutional
  traditions, international treaties ratified by
  MSs (eg ECHR), therefore are basic principles to
  which all MSs subscribe.
• Joint Declaration on Fundamental Rights 1977

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principles

• Why cannot the EC accede to the European
  Convention on Human Rights 1950?
• Opinion 2/94
• Express and implied powers
• Art 308?
• Nice 2000 Charter of Fundamental rights (European
  Council)
• Constitution 2003 Charter incorporated as Part
  II

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principles

• Fundamental rights developed autonomously by
  ECJ
• Non-discrimination in certain areas (equal pay,
  between private parties)
• Freedom of expression within broadcasting law
• Right to fair hearing
• Fundamental Rights Charter (civil, political
  social, economic rights)
• Dignity, equality, no human cloning, privacy,
  freedom of expression, right to work/health
  care/education etc
• Art 37 high degree of env prot improvement in
  env quality sustainable development in all
  Union policies
• ECHR
• Right to life, prohibition of torture/slavery,
  right to liberty/security/fair trial/effective
  remedy, freedom of expression/assembly, right to
  respect for private and family life etc
• Protocol 1 protection of property except in
  public interest, right to education
• Protocol 6 no death penalty

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Judicial remedies and review

• Judicial remedies for directly effective
  provisions must be provided by national courts
  (but Art 10)
• ECJ has provided increasing guidance
• Non discrimination
• Practical possibility
• Penalties must be reasonable
• adequate and effective remedies (von Colson)
• Effectiveness may require setting aside domestic
  law (Factortame I)

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Judicial remedies and review

• ECJ requirements for national remedies
• state liability - compensation claims for breach
  by MS of EC law (Frankovich 6/90, 9/90)
• Even where no direct effect provided but
• Law intends to confer rights
• sufficiently serious breach
• Link between damage and breach
• Based on art 10, principle of effectiveness,
  general principles common to MS systems as
  provided also in art 288 (Factortame III,
  Brasserie du Pecheur C46/93, 48/93)
• Judicially developed principles of state
  liability (v legislative scheme)

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Enforcing Community measures

• Art 211 by Commission
• Art 226 infringement proceedings
• Pre-contentious stage, formal notification,
  negotiation, reasoned opinion (2 months to
  comply), referral to ECJ
• ECJ declares, now may fine (art 228)
• Commission v MS
• Comm v Fr (C 167/73)
• improper implementation
• Comm v Belgium re water pollution dir
  implementation
• Cost/complexity no excuse
• Comm v UK re recording equipment in road
  transport
• Defence of reciprocity not acceptable

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enforcing Community measures

• By MSs
• Art 227 MS v MS
• By individuals - may only bring actions
• through national courts/direct effect and/or
  preliminary ruling
• Complaints to Commission, to Ombudsman

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Actions against EC institutions

• Art 230 annulment actions
• direct challenge to legality of Community acts (2
  months)
• By MS, Council, Commission, EP priviliged
  applicants
• By court of auditors, ECB special privileged
• By natural or legal person if of direct and
  individual concern, non privileged applicant
• Plaumann v Commission (C25/62)
• For lack of competence, infringement of
  procedural requirement (Roquette Freres v Council
  C 138/79), infringement of principles (Nold v
  Commission C4/73), of Treaty provisions, misuse
  of power

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Actions against EC institutions/acts

• Art 232
• failure to act
• Must be first called to act, then 2 months

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Actions against institutions/acts

• Art 234
• preliminary rulings indirect challenge to
  legality of acts
• No time limits
• Re interpretation of treaty, validity of acts,
  scope of a right but based on actual dispute
• Up to domestic lower court to ask, unless re
  validity of acts. Last instance must ask.
• Doctrine of acte clair
• Binding on referring court
• Binding from date of enactment of provision
  unless ECJ rules otherwise

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Judicial review

• Consequences of finding of illegality
• Art 230 actions
• Declaration that act is void
• Void ab initio, ie retroactive unless ECJ states
  otherwise (time limited, not until another is
  passed, only parts are void etc)
• Art 234 rulings
• If void for that court, also void for others
• ECJ may order remedial action

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• Reading
• Folsom
• 137-171 the freedoms
• 178-180 transport policy
• 181-201 taxation/state aid/government
  procurement/product liability/consumer protection
• 217-225 environment policy
• Energy policy go to europa.eu.int, click on
  energy, then on panorama, then on overall
  view on energy policy and action