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Topic 4.1: The EU's Court of Justice and Supremacy/Primacy - Coggle…
Topic 4.1: The EU's Court of Justice and Supremacy/Primacy
The Court of Justice of the European Union (CJEU)
Art 13:
(1) The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions
The Union's institutions shall be:
The European Parliament,
The European Council
The Council
The European Commission (hereinafter referred to as 'the Commission'),
The Court of Justice of the European Union
The European Central Bank
Court of Auditors
Structure of the CJEU:
The Court of Justice of the European Union (CJEU) shall have:
The Court of Justice
The General Court (formerly the Court of First Instance)
Specialised courts
Art 19:
(1) The Court of Justice of the European Union
shall include the Court of Justice, the General Court
and
specialised courts.
It shall ensure that in the interpretation and application of the Treaties the law is observed
Composition of the
Court of Justice
(Art 19(2) TEU):
The Court of Justice is composed of one Judge per Member State and is assisted by 11 Advocates-General (AG)
The judges and the Advocates-General shall be chosen from persons whose independence is beyond doubt
The Court of Justice elects its President from amongst its Judges (Art 253 TFEU)
The Court may sit as a full court, in a Grand Chamber of 15 Judges, or in Chambers of 3 or 5 Judges
Composition of the
General Court
(Art 19(2) TEU)
The General Court shall include
at least
one Judge per Member State. Due to workload, the number of judges has now doubled to 54 (2 per Member State)
No separate Advocate-Generals, although a Judge may be called upon to perform this task
The court elects its President from amongst its Judges (Art 254 TFEU)
It sits in Chambers of 3 and 5 Judges, or sometimes as a single Judge. A case may also be referred to the Grand Chamber of 15 Judges or to the Intermediate Chamber of 9 Judges
The role of the Advocates-General
Full member of the Court
Produces a written opinion which recommends how the judgement should be decided
The opinion is delivered before the Court deliberates. It does not bind the Court
Opinions are often very comprehensive, reasoned accounts of the law governing the case
How are decisions made?
Procedure before the Court of Justice and General Court is governed by their respective rules of procedure
The judgements are collegiate and represent the single ruling of all judges hearing the case
There are no dissenting or concurring judgements, but an alternative perspective can be gained from the Advocate-General's opinion
The role of the CJEU and national courts
CJEU:
Art 19(1) TEU
- 'It shall ensure that in the interpretation and application of the Treaties the law is observed.'
National Courts:
Art 4(3) TEU
- duty of sincere cooperation - duty to apply and enforce EU law
Art 19(1), second paragraph (TEU)
- 'Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law'
The role of the CJEU (Art 19(3) TEU):
(3) The Court of Justice of the European Union shall, in accordance with the Treaties:
(a)
rule on actions
brought by a Member State, an institution or a natural or legal person;
(b)
give preliminary rulings,
at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by institutions;
(c) rule in other cases provided for in the Treaties
Jurisdiction of the CJEU
Direct actions:
Enforcement:
infringement actions - Arts 258 to 260 TFEU -
action brought for failure to comply with EU obligations, brought by the Commission/Member State against Member State
Accountability:
Action for annulment/judicial review - Art 263 TFEU -
action challenging the legality of acts of the institutions
Indirect actions:
Uniformity:
Preliminary ruling procedure - Art 267 TFEU -
in response to a question asked by a national court on the
interpretation
of EU law, or the
validity
of a measure of EU law
Preliminary Ruling Procedure - Art 267 TFEU
Promotes judicial dialogue between CJEU and national courts
Importance of ensuring consistency and uniformity in what EU law means at national level
Enables the CJEU to introduce constitutional principles fundamental to the operation of the EU legal order, including
supremacy/primacy
and direct effect
From October 2024, transfer from the Court of Justice to the General Court of part of the jurisdiction to give preliminary rulings (the transfer concerns 6 specific areas)
Supremacy of EU law
Which law do you think we should apply?
The EU law on free movement/non-discrimination, or the national law on nationality of directors and shareholders?
Supremacy from the CJEU's Perspective:
Foundations
No provision dealing with the supremacy of EU law in the EEC Treaty. The supremacy (or 'primacy') doctrine - EU law will prevail where a conflict arises between EU law and national law - was developed in the `960s by the Court of Justice
Case 26-62
Van Gend en Loos
[1963]:
'... the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights...' (Primacy focus on
direct effect
- Topic 5)
Case 6/64
Costa v ENEL
[1964]:
'By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply... 'The law stemming from Treaty, an independent source of law, could not because of tis special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of tis, character as Community law and without the legal basis of the Community itself being called into question.'
Teological Approach
Spirit of the Treaties
Aims of the EU
Arguments used to justify EU law supremacy
Contractarian:
'By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a
transfer of powers
from the States to the Community, the Member States have
limited their sovereign rights,
albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.'
Functional:
The aims of the Treaty could not be fulfilled unless supremacy was accorded to EU law by all of the Member States
Egalitarian argument:
'The executive force of Community law cannot vary from one State to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty... and giving rise to [prohibited] discrimination'
Analytical argument:
'The precedence of Community is confirmed by [Art 288 TFEU], whereby, a regulation 'shall be binding' and 'directly applicable in all Member States'. This provision, which is subject to no reservation, would be quite meaningless if a State could unilaterally nullify its effects by means of a legislative measure which could prevail over Community law.'
Expanding the scope of the doctrine of supremacy
The supremacy of EU law must be applied against all national law, including fundamental provisions of a national constitution
Case 11/70
Internationale Handelsgesellschaft
[1970]:
'the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of tis character as Community law... Therefore, the validity of a Community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure
EU Law prevails against all national law, whether the conflicting national law predates or post-dates the EU legal instrument:
Case 106/77 Simmenthal (No.2) [1978]:
'A national court... is under a duty to give full effect to those provisions [of Community law], if necessary refusing of its own motion to apply any conflicting provisions of national legislation, even if adopted subsequently...'
Where a conflict arises between national law and EU law, all national courts are under a duty to give immediate effect to EU law:
Case 106/77 Simmenthal (No.2) [1978]:
'every national court must, in a case within its jurisdiction, 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... it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.'
Case C-213/89
Factortame
[1990]:
'... Community law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle, which precludes it from granting interim relief is a rule of national law must set aside that rule.'
Supremacy depends on Direct Effect
Case C-573/17
Poplawski
'... a national court's obligation to disapply a provision of its national law which is contrary to a provision of EU law, if it stems from the primacy afforded to the latter provision, is nevertheless dependent on the direct effect of that provision in the dispute pending before the court. Therefore, a national court is not required, solely on the basis of EU law, to disapply a provision of its national law which is contrary to a provision of EU law if the latter provision does not have direct effect.' [68]
Direct effect is a precondition for supremacy when it comes to the requirement to set aside national law to give effect to EU law
But, this does not remove the obligation on national courts to try to interpret national law so it complies with
all
EU law (indirect effect)
Should supremacy be codified?
Article I-6 Constitutional Treaty (never came into force):
'The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States'
Declaration 17 to the Lisbon Treaty (non-legally binding):
'The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law'
Declaration No.117 relied on the CJEU in Cases C-357/19
Euro Box Promotion
as an additional argument to justify or strengthen supremacy