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Tag: What is EU law and what is it for

does eu law override national law

does eu law override national law插图

Yes

What is EU law and what is it for?

To this question, a lawyer can give only one answer: the key feature is EU law, formerly known as Community law – is a system of law that penetrates inside the member states and takes precedence over national laws in the domestic courts of the Member States.

Does EU law take precedence over UK law?

– UK in a changing Europe Does EU law take precedence over UK law? In an important ruling in 1964, the European Court of Justice said that member states had agreed to limit their sovereign rights in areas covered by EU treaties and could not adopt national laws that were incompatible with European law.

How does the ECJ decide between national law and EU law?

From the ECJ’s perspective, the Member States, in particular, national judges, faced with a conflict between national law of any nature and EU law, must immediately give precedence to EU law.

Should national courts apply their own constitutional rules to EU law?

The ECJ reasoned, in addition to its arguments of ‘uniformity and effectiveness’, that if the national courts were given to apply their own constitutional rules, this would ‘weaken the effect of EU law, it would undermine solidarity among the Member States, and in the end threaten the Union itself’ (Steiner, 2003: 65).

What happens when a Union norm and national constitutional law collide?

What happens when a Union norm and national constitutional law collide? The CJEU says that EU norms cannot be questioned and should take their full effect in each country. Of course, national constitutionalists disagree with this understanding. The CJEU follows the principle of primacy, whilst national constitutional tribunals support the supremacy of the constitution over any other rules, including Union norms.

What is the Kelsen paradigm?

Kelsen’s paradigm has remained popular as it is firmly rooted in the doctrine of modern constitutionalism. Kelsen himself is often viewed as playing a pivotal role in creating this doctrine, as well as the concept of the ‘constitutional court’. The heart of constitutionalism is naturally dominated by the supremacy of a written constitution. Of course, EU law often fits uneasily within this framework.

What is the principle of primacy?

The principle of ‘primacy’ is the cornerstone of EU law, just as the supremacy of a constitution has been the pillar of constitutionalism. In many decisions the CJEU has reiterated that EU law takes precedence over national law in terms of application and that member states cannot override nor repeal Union norms. In cases where national norms are incompatible with EU law, member states should not apply inconsistent provisions.

What is the European legal culture?

European legal culture is based on common principles that have been agreed upon by successive generations of lawyers and politicians. Kelsen’s hierarchy of norms belongs to these foundations. As a result, most Europeans understand any legal system as a pyramid:

What was Kelsen’s theory of law?

His theory was inspired by the need to defend the humanist vision of the individual and their freedom from the reductionist aspirations of science, bureaucracy and ideology. These presumptions led him to far-reaching conclusions. For him, law should be seen as a system, which is complete and hierarchical. Its hierarchical nature suggests that norms within the system may occupy a lower or higher position in the order. Kelsen’s assumptions regarding hierarchy determined his definition of sovereignty, which can be understood as an essential part of a legal order not subject to any superior rules.

What are the ongoing disputes between the EU and its member states?

Ongoing disputes between the EU and some its member states are deeply rooted in the problematic relationship between EU law and national constitutional orders. Whilst the general public remain unaware of these issues, lawyers do not intend to resolve them.

Why do politicians challenge the EU?

Politicians who challenge the validity of EU actions do so because they feel authorised by common assertions shared within their legal cultures. It is worth noting that many major politicians often are (not necessarily famous) lawyers, as in the case of Poland.

What was the effect of Factortame v Sec of State for Transport?

The case went to the UK’s highest court, the House of Lords, where Lord Bridge said that the effect of section 2 (4) of the 1972 Act (quoted above) was that later Act of Parliament such as the 1988 Act would be disapplied if they were inconsistent with rights under Community law: R (Factortame) v Sec of State for Transport [1990] AC 85 at 140B-D. The Lords, however, were doubtful whether that gave UK courts the power to suspend Acts of Parliament on an interim basis and referred the question of whether they should have such a power as a matter of Community law to the ECJ, who ruled (Case 213/89; [1990] 3 CMLR 1 at 30):

What is the key feature that makes the EU treaties different in kind from every other international Treaty to which this country?

What is the key feature that makes the EU treaties different in kind from every other international Treaty to which this country belongs, and quite possibly makes them unique in the world? To this question, a lawyer can give only one answer: the key feature is EU law , formerly known as Community law – is a system of law that penetrates inside the member states and takes precedence over national laws in the domestic courts of the Member States.

What is the 1972 Act?

Section 2 (1) of the 1972 Act states that rights arising from the EU treaties and under the system of law under the treaties are to be enforced and followed in UK courts: “2 (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies …

What is the ENEL case?

ENEL case, the Court ruled that Community law over-rides conflicting national laws: “The transfer by the States from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights …. “.

Which case stated that Articles of the Treaty have a direct effect inside the Member States?

The key point that Treaty articles have a direct effect inside the Member States is nowhere stated in the Treaty, but was decided by the European Court in the Van Gend en Loos case in 1963. It said:

When did the ECJ take over the courts?

Having secured the basic principles that Community law penetrates inside the legal systems of Member States and takes precedence over all national laws in the courts of the Member States, the ECJ went on to build its powers further after our entry in 1973.

Who explained the effect of the doctrine of primacy of community law as illustrated by the Factortame case?

The effect of the doctrine of primacy of Community law as illustrated by the Factortame case was explained in graphic terms by Mr Justice Hoffmann in Stoke on Trent v. B & Q [1990] 3 CMLR 31 at 34 in the following terms:

What is Article 25 of the Treaty?

In Van Gend en Loos (1936), Article 25 of the Treaty was in conflict with an earlier Dutch law and the main question was whether Article 25 was directly effective. [3] The ECJ held that the Treaty is ‘more than an agreement which merely creates mutual obligations between the contracting states’ (Van Gend en Loos, 1936: 12), as the preamble to the Treaty not only referred to the governments of the States but also the people. Furthermore, it was ‘confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects the Member States and also their citizens’ (Van Gend en Loos, 1936: 12). The ECJ made it clear that EU law was ‘not just tools of international law but had direct effect’ (Douglas, 2002: 55) since ‘the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which compromise not the only Member States but also their nationals’ (Van Gend en Loos, 1936: 12). However, the question of superiority of EU law was not directly raised (Steiner, 2003: 66), as under the Dutch Constitution, international law would take precedence over the Dutch law. This question was raised one year later in Costa (1964: 585).

What is the ECJ’s reasoning?

This reasoning of the ECJ refers to the ‘independent nature of the new Community legal order’, which was voluntarily established by the Member States at the cost of ‘permanent limitation of their sovereign rights ’ (Steiner, 2003: 67). To support this point, the ECJ referred to Article 249 (ex 189), which says that a Regulation ‘shall be binding (and) directly applicable in all Member States’ (Craig and De Burca, 2002: 278). (Although Craig and De Burca at page 278 call this the only genuinely textual argument, they claim it is still weak as the said Article only refers to Regulations, whereas the ECJ wanted to establish general supremacy of all EU law).

What is the relationship between EU law and national law?

Discussing again the nature of EU law, the ECJ emphasised that the relationship between EU law and national law was such that EU law ‘not only by their entry into force render automatically inapplicable any conflicting provision of current national law but… also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions [emphasis added]’ (Simmenthal, 1978: 632). The italic part of the quotation is very interesting as the Member States are prohibited from passing any law inconsistent with EU provisions. This could suggest that the ECJ constitutionalised the Treaty by declaring the supremacy of EU law, and by holding the legality of national law would be determined in accordance with ECJ’s rulings (Craig and De Burca, 2002: 257).

What is the immediate decision of holding the inconsistent national law invalid?

The immediate decision of holding the inconsistent national law invalid not only extended to national courts but also ‘administrative agencies’ (Steiner, 2003: 69-70). [6] The ECJ reasoned, in addition to its arguments of ‘uniformity and effectiveness’, that if the national courts were given to apply their own constitutional rules, this would ‘weaken the effect of EU law, it would undermine solidarity among the Member States, and in the end threaten the Union itself’ (Steiner, 2003: 65).

What will my future essays examine?

My future essays will examine how the Member States’ , the judiciaries, in particular, responded to the notion of the primacy of EU law.

Why are the essays relevant?

Strictly speaking; however, the essays are relevant because more and more Europeans, especially a number of their political parties, are unhappy, to say the least, about the EU’s ‘power-grab’ from national governments (Weiss, 2019). One of the main ‘debate [s] about the exit from the European Union …

Which court disregarded the German provision in the Commission v Italy case?

In Internationale Handelsgesllschaft, the Administrative Court, the highest supreme court, disregarded the German provision. The question was whether a lower court had such competence. This issue was addressed in Simmenthal (1978: 629).

Why is the Monist principle preferred?

At the level of the European Union, the monist principle has been preferred, [ 15] because the other solution would have affected the European integration due to the fact that the European law would have had different juridical force from country to country, depending upon the juridical instrument through which it was adopted. Consecrated therefore in the community treaties [ 16] , the monist principle was recognized by the European Court of Justice, in the already famous Decision 6/64, Costa vs. E.N.E.L. “It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.”

What happens to later community norms?

Later community norms modify or make inapplicable the national juridical norms. The administration and the national judges will assure the necessary correlation and will leave inapplicable, if such be the case, the internal norms contrary to the community law. [ 7]

What is the difference between the monist and dualist principle?

According to the monist principle, between the international juridical order and the national one, there is a continuity , therefore the treaties are applied immediately and directly in the national order without the necessity of them being received through internal juridical norms. The international juridical norm will maintain this character in regard to the national juridical norms. The dualist principle, on the other hand, presupposes the distinct existence of the two juridical orders, national and international, and requires the taking/adoption of the international treaty in the national juridic al norms so as to be applied at the national level. The treaty becomes, consequently, internal law , having the same juridical power, it is “nationalized” and in this respect will be applied by the national institutions.

What is the dualist principle?

The dualist principle, on the other hand, presupposes the distinct existence of the two juridical orders, national and international, and requires the taking/adoption of the international treaty in the national juridical norms so as to be applied at the national level.

What is the supremacy of the community law?

The supremacy of the community law is based on the fact that, contrary to ordinary international treaties, the founding Treaties have created their own legal system. According to the ECJ the supremacy results from the peculiar nature of the community and not from concessions made by constitutional laws of the member states. For that reason, the primacy of the community law does not depend on which theory each member state applies in order to determine the relation between national and international law. From the perspective of the ECJ the supremacy of the community law is unconditional and absolute. All community law prevails upon all national law. This means that the national laws are subservient to all sources of community law. [ 10]

What is the European Union?

The European Union (EU) is constantly accused of invading the nooks and crannies of national life. In 1974 Lord Denning famously compared what is now EU law to ‘an incoming tide’ that ‘cannot be held back’. By 1990 he considered EU law had become ‘a tidal wave bringing down our sea walls and flowing inland over our fields and houses—to …

Which law is applicable with priority in national juridical order of the member states, over the internal law of them?

The Community Law is applicable with priority in national juridical order of the member states, over the internal law of them. The supremacy of the European law implies 2 things: