Constitutional Treaties in European law - Free Essay Example

Sample details Pages: 6 Words: 1835 Downloads: 8 Date added: 2017/06/26 Category Law Essay Type Analytical essay Did you like this example? Brief : 214212 Delivery Date : 1/12/08 Title: In the absence of a primacy clause in a Constitutional Treaty, the supremacy of European law will always remain precariously balanced. Discuss. ANSWER Introduction This paper discusses the assertion that the supremacy of European Union law is à ¢Ã¢â€š ¬Ã‹Å"precariously balancedà ¢Ã¢â€š ¬Ã¢â€ž ¢ and that it requires reinforcement and underpinning in the shape of an explicit primacy clause embedded in a new Constitutional Treaty. Case law and the development of the European Union is considered before firm conclusions are drawn on the basis of the analysis presented. The supremacy of EC law It is abundantly clear that the EU needs a supremacy principle. Don’t waste time! Our writers will create an original "Constitutional Treaties in European law" essay for you Create order The European Union of 2008 is a complex political and economic partnership of 27 democratic states held together by a constellation of laws, derived largely from the Treaty of Rome[1] and successive Treaties, and supplemented by a mass of regulation and European Court of Justice case law[2]. If the EU legal system was subject to variation and compromise at the hands of 27 widely diverse national legal systems the entire EU project would rapidly and quite dramatically falter and fail. Largely as a consequence of political pragmatism, no explicit primacy principle is embedded in the Treaty of Rome. However, the European Court of Justice is charged with the responsibility to maintain and advance the efficiency, power and integrity of EC law and it has done so at every opportunity when the question of a conflict between EC and national law has arisen. The first express declaration of the sovereignty of EC law was delivered in the foundation case C26/62 Van Gend en Loos[3]. Here the European Court famously ruled: à ¢Ã¢â€š ¬Ã…“the Community constitutes a new legal order in international law, for whose benefit the States have limited their sovereign rights, albeit within limited fields.à ¢Ã¢â€š ¬Ã‚  This ruling provided the bedrock for the judgment in C6/64 Costa v ENEL[4], in which Italian law came into direct conflict with EEC law. Drawing on Van Gend en Loos jurisprudence the Court of Justice declared: à ¢Ã¢â€š ¬Ã…“The reception, within the laws of each member state, of provisions having a Community source, and more particularly of the terms and of the spirit of the Treaty, has as a corollary the impossibility, for the member state, to give preference to a unilateral and subsequent measure against a legal order accepted by them on the basis of reciprocityà ¢Ã¢â€š ¬Ã‚  The power and quality of the supremacy principle was relatively soon thereafter put to a sterner test. That test came in the form of the case C11/70 Internationale Handelsg esellschaft mbH v Einfuhrund Vorratsstellle fur Getreide und Futtermittel[5], which concerned a conflict between EEC law and a German constitutional law, which is typically conceptualised as the very highest possible form of national law. Despite the fact that the Court of Justice was faced not with some mundane domestic regulation but with the ultimate source of national law, it nonetheless delivered a forthright and unequivocal ruling in the following terms: à ¢Ã¢â€š ¬Ã…“the law born from the Treaty cannot have the courts opposing to it rules of national law of any nature whateverà ¢Ã¢â€š ¬Ã‚ ¦ the validity of a Community instrument or its effect within a member state cannot be affected by allegations that it strikes at either the fundamental rights as formulated in that Stateà ¢Ã¢â€š ¬Ã¢â€ž ¢s constitution or the principles of a national constitutional structure.à ¢Ã¢â€š ¬Ã‚  It is submitted that the case Internationale Handelsgesellschaft prompted the Court of Ju stice to underscore the reality of EC law supremacy in the clearest possible fashion. The message was straightforward: if even constitutional law was found subordinate to EC law, no form of national law could possibly challenge its supremacy. That said, Internationale Handelsgesellschaft was by no means the end of the story. By the mid 1970s the UK had acceded to membership of the EEC and the new member stateà ¢Ã¢â€š ¬Ã¢â€ž ¢s senior courts struggled with the concept that the old order to which they had been so long accustomed had so dramatically changed. The supremacy principle was questioned and misapplied in cases such as H.P. Bulmer Ltd v J. Bollinger SA (1974)[6] and again in Felixstowe Dock Railway Co v British Transport Docks Board (1976)[7]. This period of judicial reticence and confusion, which was by no means confined to the UK courts (see inter alia, SpA Fragd v Amministrazione delle Finanze[8] and Semoules[9]), is perhaps understandable, given the long tradition of the supremacy of national legal structures. However, definitive rulings such as case C106/77 Simmenthal SpA (No.2)[10] allowed the Court of Justice to reinforce and underline EC law supremacy with statements such as the following: à ¢Ã¢â€š ¬Ã…“a national court which is called upon to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing to apply any conflicting provision of national legislation, even if adopted subsequently, and it is not necessary for the court to request or await the prior setting aside of such provision by legislative or other constitutional means.à ¢Ã¢â€š ¬Ã‚  All around the EEC the member states gradually fell into line and accepted the subordination of their national legal systems. In the UK it was perhaps the very well known Factortame case, on quota-hopping by Spanish fishermen in the late 1980s, that unequivocally drove the point home in the British consciousness: C213/89 R v Secretary of State for Transport, ex parte Factortame Ltd [11]. Since the ratification of the Treaty on European Union[12], which is popularly known as the Maastricht Treaty, in 1992, there have been few if any serious challenges to the supremacy of EC law over national law and certainly no successful challenges or even minor incursions on the basic principle. Indeed the principle has been developed and extended in a number of directions including by means of the punitive doctrine of state liability, which operates to render states liable to compensate citizens financially for national legal provisions that conflict with EC law: C-6 9/90 Francovich[13] and C-46/93 C-48/93 Brasserie du Pƒ ªcheur and Factortame III[14]. Is a primacy clause needed? With a view to the above analysis, this commentator concludes that the supremacy rule of EC law is not, as the statement under review infers, à ¢Ã¢â€š ¬Ã‹Å"precariously balancedà ¢Ã¢â€š ¬Ã¢â€ž ¢. The Court of Justice h as long proved itself diligent and determined in assiduously maintaining the principle that, in the event of conflict, EC law prevails in all its many forms over all species of the national laws of the member states, no matter how lofty those national laws might be in a domestic context. The member states themselves, and the courts of those states, have also long since (after a period of reluctance and scepticism during the 1970s and 1980s) acknowledged the primacy of EC law and the importance of that concession as a part of the price paid for EU membership. It is submitted that ironically, and in particular given the current socio-political climate in the EU, any move to insert an explicit primacy clause into a new Constitutional Treaty is more likely to damage the delicately forged supremacy principle than it is to reinforce it. Even attempts to ratify à ¢Ã¢â€š ¬Ã‹Å"softà ¢Ã¢â€š ¬Ã¢â€ž ¢ Constitutional Treaties that skate around the concept of primacy have twice failed, quite spectacularly, in recent years. The draft Treaty establishing a Constitution for Europe was, after all, rejected by France in May 2005 by a national referendum by a 54.68 per cent majority, and by the Netherlands a few days later by a 61.6 per cent majority. Thereafter, the draft Lisbon Treaty, which was to all intents and purposes almost identical in substantive terms to its predecessor, was thrown out by the Irish by a referendum held on June 12 2008. Any attempt to hammer primacy home in the foreseeable future would prove a focus for anti-EU, anti-integrationist and anti-federalist sentiments in any member state brave enough or compelled by its own constitution to hold a national referendum on the question of adoption. In the United Kingdom, the current Prime Minister Gordon Brown is committed to a political promise given originally by ex-PM Tony Blair to allow a referendum on any matter deepening in substantial constitutional terms the relationship between the UK and the EU. If the UK population ever gets a chance to vote on such a proposal all the indications are that an emphatic No will be the result, and this is but one state among many where potential problems might arise. There is of course always the possibility that a two-tier Europe could emerge and that a primacy clause could be adopted by those member states most strongly supportive of further and deeper EU integration. Jean-Claude Juncker, Prime Minister of Luxembourg, is among several EU leaders who have proposed this[15]. However, it is as well to bear in mind that the three states that have actually rejected a Constitutional Treaty France, the Netherlands and Ireland would all be placed on a list of those states most enthusiastic about the EU project. Given the complexity, financial and legal logistics and political sensitivities involved it is submitted that this option remains a distant and remote possibility. In conclusion, it is argued that from the perspective of EU advanceme nt and stability, it is far better to let sleeping dogs lie for the time being. It may be that the time will come when the integrationist agenda can be furthered by the establishment of an explicit primacy clause, but that time is not now. As things stand, the EU should concentrate on reinforcing and entrenching its previous gains and successes in regards to supremacy. In 2008 the basic supremacy principle enshrined in ECJ case law is universally recognised and accepted. Those committed to a federal future would be well advised to avoid interference in that status quo. The fact is, so far the supremacy principle as maintained by the ECJ has worked remarkably well and it is now stabilised within the legal systems of the EU and its member states. To rehearse a well-worn truth: à ¢Ã¢â€š ¬Ã‹Å"if it ainà ¢Ã¢â€š ¬Ã¢â€ž ¢t broke, donà ¢Ã¢â€š ¬Ã¢â€ž ¢t fix it.à ¢Ã¢â€š ¬Ã¢â€ž ¢ THE END WORD COUNT FOR TEXT OF ANSWER ONLY : 1630 Question, footnotes and bibliography not included. BIBLIOGRAPHY Case law as footnoted Consolidated Version of the Treaty Establishing the European Community, Official Journal of the European Union, C321 E/37 (29.12.06) Craig P., and De Burca G., EU Law: Text, Cases and Materials, (2007) Oxford University Press Europa: Gateway to the European Union: https://europa.eu.int/index_en.htm. Kent P., Law of the European Union, (2001) Longman Steiner J. et al, EU Law, (2006) Oxford University Press Weatherill S., Cases and Materials on EU Law, (2004) Oxford University Press 1 Footnotes [1] Consolidated Version of the Treaty Establishing the European Community, Official Journal of the European Union, C321 E/37 (29.12.06). [2] Note also the contribution of the Court of First Instance, which is growing in significance. [3] (1963) CMLR 105. [4] (1964) ECR 585. [5] (1970) ECR 1125. [6] (1974) Ch 401. [7] (1976) 2 CMLR 655. [8] Italian Constitutional Court, Dec 232 of 21 April 1989 (1989) 72 RDI. [9] Conseil Dà ¢Ã¢â€š ¬Ã¢â€ž ¢Etat (supreme French administrative court) [1970] CMLR 395. [10] (1978) ECR 629. [11] (1991) 1 AC 603. [12] A full text online version is available at: https://europa.eu.int/eur-lex/en/treaties/dat/EU_treaty.html#0001000001. [13] [1991] ECR I-5357. [14] [1996] ECR I-1029. [15] For a useful overview see: https://news.bbc.co.uk/1/hi/world/europe/6901353.stm.