LL5303 European Union Law

In the institutionalized world that we are living in, there are often sovereignty and supremacy issues if we were to be covered by both nation and supranational entity like European Union. This is not without backdrop as the problem persisting among the EU member states and EU is a striking reflection of that. The supremacy of one to an extent seriously jeopardizes the sovereignty of the other.

Institutions may have been created and developed on the will of disparate nations as a consequence to foster economic cooperation among divided nations on various grounds however gradually institution wish to exercise more powers to balance and contain the festering conflicts among different member states. These power games steadily move up and take shape to conjure sovereignty and supremacy. Present day conflicts between EU and member states are stark reflection of such competing concerns of supremacy.

In the analysis below, we will be discussing major institutions of EU and their powers in brief along with unending conflicts pertaining to supremacy between EU institutions and member states and their judiciaries with the help of various regulations and directives and landmark cases.

EU (erstwhile European Community) was also initially created to assist in economic cooperation among member states coming out of the scourge of various maladies and finding difficulty to spruce up development and move on such hallowed path to create opportunities. Later EU was armed with various responsibilities and powers to ensure peaceful resolutions. The member states in lieu of such umbrella institution had to surrender some/many of their sovereignty to have EU’s effective oversight and enforcement of good behavior among member states as otherwise one member state would not want to follow the expected behavior and disrupt in multitude of ways the development of others.  This pre-emption and surrender initially was acceptable to help member states ride together in the journey together. However, later variety of reasons including belief in sovereignty of member state led to dissension and unending conflicts between the member states and the EU.

For accomplishment of all-pervasive role and enlarged responsibilities, EU has expanded its wings and has been functioning through Legislature called European Parliament (EP) whose members are elected directly from elections in member states. EP has control over EU budget and legislations with the Council of the EU comprising Chiefs of member State Governments. EP has responsibility to ensure democratic working of EU institutions. There is also a European Council that outlines overall political course and priorities of EU and does not pass laws. It is responsible for setting EU common foreign and security policy. Other than that there is collaborative effort of three EU institutions in law making and these are EP, he European Commission (EC) and the Council of the EU where commission proposes law and EP and council adopt the law. In addition to that there are the Court of Justice of the EU for upholding EU law and other inter-institutionalized specialized institutions helping in diplomacy, monetary policy etc.

There are various decisions of European Court of Justice where it did not want to cede even the iota of powers in grey area where the member state and their judiciary would want to control the application of EU laws. Regulation and to certain extent directives of EU are part if absolute supremacy doctrine.

Application of this doctrine was seen where higher constitutional courts in member states did not want to cede their some constitutionally protected authority on certain foundational area of their respective constitution. Therefore not all EU laws are having the same force is the premise of this doctrine and it could be seen in cases where EU has exercises over and above the powers conferred on it and competence. Even opinions and recommendations of EU could be part of this doctrine as member states need not follow them.

Recently, the EU has requested Denmark to properly incorporate The Environment Liability Directive in its national rules. The directive was framed with an objective to avert and remedy the environmental damage. As Denmark has restricted various definitions including where the damage to environment takes place, European Commission has sent an opinion to it to comply with the directive within 2 months failing which the case might be referred to the European Court of Justice. Though directives have to be incorporated in national laws as per the initial timely discretion of member state; however EU sets the deadline for member state to incorporate the directive.

In one of the case regarding referral to the Court of Justice of the EU, following Poland’s inadequate response to both formal order and reasoned opinion regarding new disciplinary regime severely containing the independence and impartiality of Polish Judiciary. New disciplinary regime could subject ordinary judges to investigations and sanctions even in matters when they refer the matter for preliminary ruling to Court of Justice. Therefore, Commission referred the matter to EU court of justice for decision with the expedited procedure.

In Commission v Italy, Italian Supreme Court was alleged by commission to have made an erroneous interpretation of EU law and as a consequence of stare decisis principle lower court continuously followed the Supreme Court interpretation in matters involving the similar law. ECJ pronounced that non-amendment of relevant legislation and its application by Italian courts was EU law breach.

In the case law of Gerhard Kobler, following criteria were laid for determination of breach by national courts- Whether judgement given by national courts is irreconcilable with EU law and subsequently followed by inferior courts in the national legal order; Whether incompatible judicial decision delivered by highest court in member state or inferior court and confirmed on appeal in highest court are significant in numerical and in terms of their judicial authority; Whether decisions have substantially undermined the EU objectives and have produced the harmful effects on others bound by EU law.

In the case of Commission v Spain, constitutionally independent institution of Spain, the Supreme Court was alleged by the commission to be in breach of VAT directive due to erroneous interpretation. Spain argument of protection accorded to Supreme Court by constitution prevent other to remedy the breach was also rejected by ECJ and it held that the three tests laid in Kobler case are satisfied and therefore member state is in violation of EU law. This case was also significant because for the first time ECJ has directly condemned the ruling of Supreme Court of Member State and not the administration of member state.

When EU was born, treaties did not explicitly provide the supremacy of European law. The questions that are unstintingly raised are on the nature of EU and its effect on member states- If the EU were having supremacy, would EU adopt absolute doctrine to not permit any law over Union law or would it in certain cases allow national law to prevail over Union law. Whether the supremacy of EU would give it right to invalidate state law or not apply it. As absolute doctrine may have diluted the spirit of collaboration between member states and EU, would the Union be agreeable with nuanced solution for certain national norms.

The EC never accepted the dilution of doctrine of absolute supremacy as was elucidated in Internationale Handelsgesellschaft. The tinkering with EU law, under the garb of remedy of violation of fundamental rights engrained in the spirit of German Constitution, was not allowed due to contrary effect of it on consistency and efficacy of EU law. Though supremacy of EU laws over national laws was not questionable however it was questionable with respect to international agreements of member states as is visible in the wordings of Article 351 of TFEU.

Nonetheless, it is not without a rider that is primacy of only those international agreements would be there which were entered prior to 1958 or before the accession of member states. Later this was considered by European Court to be severe incursion on the EU authority and later restricted its scope to only those international treaties which were entered by member states with the third countries to implement their obligation toward third countries. Therefore, member state rights against third country as well as rights against and obligation towards member states are unenforceable through prior international agreement. In further restriction to Article 351, Court in the Kadi case laid that fundamental principles like liberty, democracy and human rights etc. forming part of Union’s foundation would not be changed or challenged in any manner.    

In the landmark case of Simmenthal II, it was laid that member state courts were under direct responsibility to provide instantaneous effect to Union law. However the court instead of holding legislation to be void, it took the view that national legislation provision would be inapplicable to the extent of contrariness with the EU law. The supremacy apparently tilts towards executive force of European law. As the laws are to be applied by judiciary during adjudication, inapplicability is therefore not considered concomitant with or negating the member state legislature for touching upon the supremacy question. Though the obligation and power to amend the conflicting provision is with the state legislature, however it is not a direct result of supremacy doctrine but a result of Article 4 (3) of TEU.

There is another view of relative supremacy where supremacy of European laws is not acceptable over all national laws. The relative supremacy was well covered in the dispute between constitutional court of Germany and ECJ in the case of Internationale Handelsgesellschaft where German Court observed that it has powers to disapply the union law when union law is in conflict with national fundamental rights. It was laid by German court, after the adoption of absolute doctrine by European Courts, on the reasoning that though Article 24 of German Constitution allowed transfer of sovereign power to EU, however such transfer is restricted by constitutional identity of Germany. This clash remained till adequate human rights protection was provided by EU through human rights bill following which there were less tussles. Finally, Germany assured to not context union law as it assured rights demanded by Germany.

In the Maastricht case, conduct beyond legal power of Union, in view of Germany, was there. German Court argued that European court cannot go beyond conferred powers or competence. Interpretation of EU Court should not be equivalent to extension of treaty as was laid in the Honeywell case. This could be seen as continuing limit and dual perspective on the locus of autonomy of EU.

Though the EU has been consistently able to hold its grip on the member states, however in certain areas where member states feel that EU has overreached or acted beyond conferred powers, there are cases of disobedience by the member states constitutional courts. The enforceability and grip of EU is also based on the sources of EU law as regulations are apparently the forte of EU whereas directives of EU are to be incorporated in the form and manner decided by member states without compromise on end-use of directives. In addition to that, EU cannot force the member state in cases of its recommendation and opinions though the impact may be different in case of decision of EU which is having binding effect on the member state to which it is directed.

Therefore, overall many member states have refused authority of EU in many foreign and security related issues along with major conflict of member state foundational constitutional structure.

Amministrazione delle Finanze dello Stato v Simmenthal SpA [1978] ECR 629

Commission of the European Economic Community v Italy [1962] ECR 1

Commission of the European Economic Community v Spain [2009] ECR 1-187

Gerhard Kobler v Austria [2004] 29 EL Rev 243

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125

Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR 6351

Re Honeywell [2011] 1 CMLR 1067

European Parliament and Council Directive 2004/35/CE of the 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage

Basic Law for the Federal Republic of Germany, art 24

Treaty on Economic Union

Treaty on the Functioning of the European Union, art 351

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