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EU Law: Principles of Primacy and Direct Effect, Study notes of Law

This document delves into the fundamental principles of eu law, specifically focusing on the concepts of primacy and direct effect. It explores how these principles govern the relationship between eu law and national law, ensuring the supremacy of eu law in case of conflict. The document also examines the implications of these principles for individuals and national courts, highlighting the right to effective judicial protection and the role of the court of justice of the european union (cjeu) in ensuring consistent interpretation of eu law.

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2024/2025

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Introduction to EU Law
Origins of modern EU
For much of its history Europe = battleground
After WWII (6 yrs./ 50 m. casualties): calls for peace & ‘United Europe’
Soviet expansion: source of danger for the Western democracies
Role of Schuman (French Foreign Minister) historic proposal in
London on 9th of May, 1950
Role of Jean Monnet (French Diplomat)
Schuman Plan
Eliminate the rivalry between France and Germany
Place Franco-German coal and steel production under a common
High Authority (leave the venture open to all European nations
enlargement)
Merge economic interests / help raise the standard of living (EEC)
Make the High Authority’s decisions binding on the Member States
(enforcement)
European Coal and Steel Community
6 countries agreed with Schuman the Benelux, France, Germany, Italy
The UK declined to participate sceptical about the High Authority
The Treaty Establishing the ECSC was signed in Paris on 18th of
April, 1951 / in force on July 20th 1952 (for 50 yrs. expired in July 2002)
Objectives
To
Establish:
o A common market for coal & steel
products AND
o Four main Institutions: a High Authority, a Council of
Ministers, a Common Assembly, and a Court of Justice
Common market for coal and steel free from constraints by the MS
or by the economic operators (re: flow of trade or competition)
Article 4 ECSC Treaty: Certain practices are prohibited within the ECSC
e.g. Rules on import and export custom duties, restrictions on
movement of goods; no discrimination between producers, purchasers
or consumers
The Common Market
The construction and maintenance of a common market i.e. a Europe-wide
scale, of economic conditions similar to those on the market of a single state
European Economic Community
A common market covering all economic sectors other than those of
the ECSC Treaty
Two new treaties negotiated, providing for the establishment of EEC
and Euratom
Both signed in Rome on 25th of March 1957 / in force on 1st of
January 1958
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Introduction to EU Law

Origins of modern EU

  • For much of its history Europe = battleground
  • After WWII (6 yrs./ 50 m. casualties): calls for peace & ‘United Europe’
  • Soviet expansion: source of danger for the Western democracies
  • Role of Schuman (French Foreign Minister) – historic proposal in London on 9 th^ of May, 1950
  • Role of Jean Monnet (French Diplomat)

Schuman Plan

  • Eliminate the rivalry between France and Germany
  • Place Franco-German coal and steel production under a common High Authority (leave the venture open to all European nations – enlargement)
  • Merge economic interests / help raise the standard of living (EEC)
  • Make the High Authority’s decisions binding on the Member States (enforcement)

European Coal and Steel Community

  • 6 countries agreed with Schuman the Benelux, France, Germany, Italy
  • The UK declined to participate – sceptical about the High Authority
  • The Treaty Establishing the ECSC was signed in Paris on 18 th^ of April, 1951 / in force on July 20 th^1952 (for 50 yrs. – expired in July 2002)
  • Objectives To Establish: o A common market for coal & steel products AND o Four main Institutions: a High Authority, a Council of Ministers, a Common Assembly, and a Court of Justice
  • Common market for coal and steel free from constraints by the MS or by the economic operators (re: flow of trade or competition)
  • Article 4 ECSC Treaty: Certain practices are prohibited within the ECSC
  • e.g. Rules on import and export custom duties, restrictions on movement of goods; no discrimination between producers, purchasers or consumers

The Common Market

The construction and maintenance of a common market i.e. a Europe-wide scale, of economic conditions similar to those on the market of a single state

European Economic Community

  • A common market covering all economic sectors other than those of the ECSC Treaty
  • Two new treaties negotiated, providing for the establishment of EEC and Euratom
  • Both signed in Rome on 25 th^ of March 1957 / in force on 1 st^ of January 1958

A success story?

Legal machinery was provided for the harmonisation of national legislation that may have a bearing on the smooth functioning of the common market

Seeds of Scepticism

  • When EU began functioning as a common market – Euro loss of regulatory autonomy
  • Imposition of EU standards to all member states

EU – policy fields?

EU – International roles?

  • Development: humanitarian assistance, governance
  • European Neighbourhood policy
  • International cooperation and diplomacy
  • Environmental protection
  • Security, counter-terrorism
  • … Leadership?

EU on the world stage

  • In 2012, the EU received the Nobel Peace Prize “for over six decades contributed to the advancement of peace and reconciliation, democracy and human rights in Europe”
  • Many international organizations have received the peace prize in the past
    • including the UN, Amnesty International, International Committee of the Red Cross
  • Focus: a unitary EU, based upon a single Constitutional Treaty, own legal personality
  • Thanks but no thanks! o Popular referenda in France (29 May 2005) and the Netherlands ( June 2005) rejected the Constitutional Treaty o Constitution could not come into effect unless ratified by all member states o The EU entered what was diplomatically described as a ‘period of reflection’ The Treaty of Lisbon
  • The Reform Treaty signed on 13 December 2007 / in force December 2009
  • NO repealing / replacing existing Treaties entirely but revising
  • The EC Treaty was amended and recast as the Treaty on the Functioning of the European Union (TFEU)
  • ‘European Community’ abolished as a distinct legal entity – succeeded by a unitary EU with its own legal personality
  • Lisbon: the Irish Referenda o The ToL was due to enter into force on 1 January 2009, however Ireland – the only country to hold a popular referendum on its ratification – voted ‘no’ in June 2008 o Ireland held a 2nd^ referendum in October 2009 – this time just over 67% in favour of the ToL o Lisbon entered into force on 1 December 2009 after nearly a decade of complex negotiations

ECSC (“common market”) ONLY C+S Single European Act E’E’C (“common market”) □ so in 1992 – EC EC Treaty other elements (human) □ so dropped the ‘E’ (means economic) TFEU TEU in 1992 (intergovernmental level) – areas of cooperation NOT integration CFSP – criminal affairs JCCM – crime/ immigration/ security became integrated into the TFEU DUAL TREATY FRAMEWORK = TFEU + TEU TFEU: Arts. 3, 4, 6, 26, 169, 191 TEU: Arts. 1 - 3, 50

Actors and Sources of EU Law

Actors: EU Institutions

A pluralistic and flexible interplay of authority between EU Institutions

  • Main EU Institutions Art. 13- 19 TEU o European Parliament ▪ Assembly Parliament o European Commission o Council of the European Union ▪ “heads of state” European Parliament
  • Art. 14 TEU, Arts. 223 - 227 TFEU
  • Composition: direct elections since 1979 o Now 754 MEPs elected for 5 - year terms o Group by political affinity, not nationality
  • Legislative role o Is co-equal legislator for almost all European laws o Ordinary legislative procedure o Art. 294 TFEU
  • Scrutiny role o EP committees active in reviewing proposed legislation
  • Financial role o EP as the budgetary authority of the EU
  • Political supervision o Elects the President of the Commission

o Tasks include liaising with EU leaders and chairing/ coordinating summits o Priorities ▪ Eurozone crisis ▪ International relations (summits, cooperation with non- EU countries) Council of the European Union

  • The decision maker o Art. 16 TEU, Arts. 237 - 243 TFEU
  • Legislative meetings to be held in public o Art. 16(8) TEU
  • Voting is governed by the Treaty o Unanimity, QMV, or simple majority
  • The Presidency of the Council rotates among the MS every 6 months o Latvia holds the Presidency (Jan-June 2015)
  • Double majority – from 2014
  • A “law” will be adopted within the Council if it wins the approval of 55% of MS (i.e. 16 MS) representing at least 65% of the EU European Commission
  • Near-monopoly of legislative initiative o Art. 17 TEU, Arts. 244 - 250, 258- 60 TFEU
  • Extended to PJCCM with exceptions, but not to CFSP o Arts. 76 and 289(4) TFEU
  • Oversees the application of EU law in MS o Art. 17(1) TEU o “Guardian of the Treaties”
  • Concerned with the implementation of EU law at EU level
  • Ensures EU external representation, except CFSP o Art. 17(1) TEU
  • The number of Commissioners will be reduced to two-thirds of the number of MS o From 28 to 18 or 19 members o Art. 17(5) TEU; Declaration No 10 Court of Justice of the European Union
  • ECtHR ≠ Court of Justice (CJEU)
  • Key provisions o Arts. 19, 251 - 256 TEU, 261 - 281 TFEU; Protocol No 3 on the Statute of the Court
  • Court of Justice of the European Union (CJEU) o European Court of Justice (CJEU) ▪ Note role of Advocates General ▪ Art. 252 TFEU o General Court (GC) ▪ Formerly, ‘Court of First Instance’ (CFI) ▪ Arts. 19 and 24(1) TEU, 256 TFEU o Civil Service Tribunal (CST)

▪ Disputes involving EU civil service

  • Adjudication o Full court (exceptional circumstances – e.g. Case 370/12, Pringle) o Grand Chamber of 15 judges o Chamber of 3 or 5 judges
  • Types of cases o References for preliminary rulings ▪ e.g. Art. 267 TFEU o Enforcement actions ▪ e.g. Arts. 258 - 260 TFEU o Actions for annulment of EU legislation ▪ Art. 263 TFEU o Actions for failure to act against EU institutions ▪ Art. 265 TFEU o Opinions on compatibility of international agreements with the Treaty o Review of General Court’s decisions on appeal from the Civil service tribunal

Sources

Primary Law

  • Several main sources, which stand at the top of the hierarchy of EU legal norms: o The TEU o The TFEU o Protocols & Annexes o Charter of Fundamental Rights of the EU o General principles of EU law Treaties
  • The treaties set out the overall design: o Treaty of Rome (1957) o Single European Act (1986) o Treaty on European Union (1992) – Maastricht Treaty o Treaty of Amsterdam (1997) o Treaty of Nice (2001)
  • Tell us how the EU Institutions function
  • Under the Treaty framework EU Institutions adopt legislative acts
  • TEU & TFEU TEU Foundations/ setting the background Objectives + institutions + governing principles
  • Fundamental values & objectives o Arts. 2, 3 TEU
  • Existence & exercise of competence o Arts. 4, 5 TEU
  • Commitment to human rights

Part 7 General/ final provisions: EU liability, languages, flexibility clause TEU + TFEU = equal?

  • Art. 1(3) TEU and Art. 1(2) TFEU state that the EU is founded on both Treaties – same legal value!
  • TEU, TFEU, Protocols, Annexes, Charter of Fundamental Rights should be read as one source – primary law for the EU
  • The two-Treaty solution is historical – Maastricht
  • There is a division of labour between the two Treaties o TEU is more of a mission statement o TFEU is more about the nitty-gritty work of setting out the legal bases required to fulfil that mission statement Protocols/ Annexes
  • Art. 51 TEU is explicit that Protocols and Annexes form an integral part of the Treaties
  • Protocol 2 : role of national parliaments in EU legislation
  • Protocol 15 : UK opt-out from Euro EU Charter of Fundamental Rights
  • Adopted in 2000
  • It is now legally binding bill of rights – incorporated into EU primary law by cross-reference Declarations
  • Political in character – but legally relevant?
  • Reflect the collective understanding or views of the MS at the time
  • Declaration 7 : Qualified Majority Voting after Treaty of Lisbon Unwritten sources of Primary Law General Principles of EU Law
  • Developed by EU courts – same legal status as written sources
  • Judge made principles – open to future development
  • Can provide a grounds for judicial review against EU acts and MS’ conduct
  • Occasional references of those ‘principles’ in the Treaty o Art. 6(3) TEU, Art. 340 TFEU
  • Examples: o Proportionality, legal certainty, legitimate expectations o High standards of environmental, consumer protection Direct Effect and Primacy
  • Relationship between EU and national legal orders
  • Define the circumstances when EU measures should be recognised as a superior source of law by national authorities Key Types of Secondary Law Art. 288 TFEU:
  • Regulations o Directly applicable

o Directly binding as soon as they are passed – no transposition needed in the MS

  • Directives o Addressed to and must be implemented by MS – might require new national legislation or amendments to existing laws o MS have discretion in terms of how to implement and must do so by a deadline
  • Decisions o Binding on addressees (e.g. specific MS or individuals) o Asking them to take action or to cease doing something How is secondary law adopted?
  1. Commission Proposal Art. 17(2) TEU
  2. National Parliaments ‘yellow card’: Protocol No 1 on the role of national parliaments in the EU
  3. Art. 289, 294 TFEU: Ordinary legislative procedure (co-decision) between Council & Parliament – dual democratic basis (Art. 10 TEU) a. Regulations, Directives, & Decisions are adopted under this procedure unless the relevant legal basis mentions ‘special legislative procedure’ (e.g. cooperation)
  4. Council: QM Voting Art. 16(4) TEU, Art. 238(2) TFEU, Protocol 36 on transitional provision, Title II

Existence & Exercise of Powers

  • Art. 5 TEU: principles binding on the EU which limit its law-making powers o Conferral (Does the EU have competence to legislate?) o Subsidiarity (Should the EU legislate?) o Proportionality (How should the EU legislate?)
  • Art. 4(2) TEU: principle binding the EU o Respecting equality of MS before the Treaties o Respect for MS national identities Fields of EU activity – type of competence
  • Arts. 1 - 6 TFEU: Rough categories and areas of EU competence o Exclusive Competence ▪ Art. 3 TFEU/ exclusivity applies ▪ e.g. Art. 119 TFEU (EMU) o Shared Competence ▪ Art. 4 TFEU/ pre-emption applies ▪ e.g. Art. 91 TFEU (transport) o Complementary or Supporting Competence ▪ Art. 6 TFEU/ formal precedence of national law ▪ e.g. Art. 165 TFEU (education) Exclusive Competence Art. 3 TFEU
  • Only the EU is allowed to legislate in these areas

EU Institutions and Sources of EU Law

Aims

In this tutorial we will discuss the EU institutional framework, sources of EU law and the EU legislative process. The tutorial also addresses the issue of competence, which is relevant in determining the powers of the EU to act.

Essential Reading

Set text: Craig and de Búrca, Chapter 1 (The development of European Integration) – skim read now and re-read when revising; Chapter 2 (The Institutions), Chapter 4 (Instruments and The Hierarchy of Norms), Chapter 5 (Legislation and Law-Making), pp 123 – 130

Further Reading

Set text: Craig and Búrca, Chapter 3 (Competence) [Address Question 6 by reference to the Treaties; do the further reading if you have time]; Chapter 5 (Legislation and Law-Making) Paul Craig, ‘The Treaty of Lisbon: Process, Architecture and Substance’ (2008) 33(2) EL Rev 137

Questions for discussion

  1. What are the main aims and objectives of the EU? How have these developed over time? Art. 2+3 TEU = founding provisions Also in TFEU Founded 1951 Timeline for treaties – helps If coursework – articles and amendments = detailed examples Shifting the balance of powers
  2. Locate and read the general and specific provisions in the TEU and the TFEU related to the European Council, the European Commission and the European Parliament. What are the roles of these EU Institutions? - European Council: o Provide necessary impetus for its development + define the general political directions and priorities o Consist of heads of state + president + president of commission + high representative o Meet 2 every 6 months o Decision by consensus, unless by treaty o Elect president, by QMV, 2.5 years, renewable once - European Commission o Promote general interest of the union + application of treaties o Union legislative acts may only be adopted on the basis of a commission proposal

o Term of office 5 years o Completely independent o Commission membership o Select president, then approved by parliament o 258 - 260 TFEU – application of EU law

  • European Parliament o With council, legislative + budgetary functions o Elect president of commission o Representatives of the union’s citizens ▪ 750, including president, max ▪ Min threshold of 6 members per member state ▪ No more than 96 seats for a MS o Elected for 5 years o Elect president + officers from among its members
  1. Read Article 19 TEU. What are the main functions of the CJEU? Are there any clear differences between the CJEU’s adjudicatory process and the UK courts?
  • Interpretation + application of treaties
  • Consist of one judge from each MS – Court of Justice
  • General court – at least one judge per MS
  • Chosen = independence + satisfy conditions
  • Appointed common accord of governments of MS for 6 years
  • Retiring can be reappointed
  • Judicial Review – General Court
  • Supremacy/ Primacy of EU law
  • UK no preliminary rulings
  • EU judges represent the interests of EU law/ interest
  • EU only one judgment, no dissenting opinions
  • EU decisions binding
  • EU NOT appeal courts
  • MS will ask the court to explain EU law OR national courts will make a reference to the courts
  • Case stays where it starts
  1. Read Article 288 TFEU. What are the main secondary instruments that the EU Institutions can adopt? What are the differences between them?
  • Regulations – general application, binding in entirety + directly applicable to all MS
  • Directives – binding to MS addressed, leave national authorities choice of form + methods ‘certain period allowed – implementation period’
  • Decisions – binding in entirety to whom it is addressed – specific parties
  • Recommendations – no binding force ‘soft law’
  • Opinions – no binding force ‘soft law’

Principles Binding on Member States

Principles binding on Member States

  • Main focus today on the development of the principle of primacy (‘supremacy’)
  • And the significance of the principle of loyalty in EU law (‘sincere’ co- operation)
  • Note also the principle of direct effect (independent effect within national legal orders)
  • Private enforcement

Primacy as a binding principle

  • Legislation passed depends on the competencies how they are interpreted depends if the legislation passed on a certain topic and can be interpreted to another o Economic trade ≠ public health
  • Primacy underlying – only ‘pop out’ in a hard conflict case
  • State liability private liability can give way to state liability if law (EU) not implemented
  • Primacy = conflict resolution device Governs relationship between conflicting EU and national law
  • National law ‘disapplied’ viz. a conflicting/ pre-empting EU law Places obligations on National Courts
  • EU law cannot be overridden by domestic legal provisions
  • National courts under a duty to secure effectiveness of rights that derive from EU law
  • Where necessary, refraining from applying national legal rules

Origins: Case No. 1

Van Gend en Loos [1963] ECR 1

  • Direct effect and primacy
  • Netherlands Administrative Tribunal Question to the CJEU: ‘Can a transport company (VGEL) escape paying an import duty upon importing chemicals from Germany to Netherlands (Art. 30 TFEU)?’
  • CJEU: No!!
  • Famous quote: The Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights... Community [now EU] law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage How to read Van Gend en Loos
  • EU = integral part of national legal systems
  • Treaty = not just an agreement between contracting states
  • EU Membership = permanent transfer of sovereignty from the MS to EU
  • Impossible for MS to accord primacy to domestic laws o Integration = reciprocity, co-operation o The aims and objectives of the Treaty = uniformity

Maturity: Case No. 2

Costa v ENEL [1965] ECR 585

  • Italy nationalised electric power industry in 1962
  • Mr Costa (shareholder in an electricity firm, ENEL) refused to pay his electricity bills (£1.10)
  • Milan court to the CJEU: ‘Is Italian law nationalising the industry in conflict with the Treaty (monopolies)?’
  • CJEU: Yes!
  • Mr Costa should challenge national law on its alleged incompatibility with the Treaty Costa: a conceptual basis for Primacy
  • To ensure effectiveness, we must be able to challenge national law on the basis of its alleged incompatibility with the Treaty
  • Codification? Lisbon Declaration no 17 Concerning Primacy
  • Being an integral part, EU law: o Binds MS o Their courts (judges ‘shut their eyes’) o Gives us authority to act as direct enforcers

Building Further: Case No. 3

Internationale Handelsgesellschaft [1970] ECR 1125

  • Reinforced that any EU law has primacy over any national law – of any rank o Human rights principle = economic liberty
  • Even in provisions of national constitutions!
  • No such problem in the UK
  • But see HS2 [2014] UKSC 3
  • Famous quote If there is a conflict between a constitutional principle, such as that embodied in article 9 of the Bill of Rights, and EU law, that conflict has to be resolved by our courts as an issue arising under the constitutional law of the United Kingdom. Nor can the issue be resolved, as was also suggested, by following the decision in R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603, since that case was not concerned with the compatibility with EU law of the process by which legislation is enacted in Parliament.

Duty to disapply: Case No. 4

Simmenthal [1978] ECR 629

  • Automatic prevalence: (before or after/ prior ruling)
  • Side effects: o ‘Dis-application’: national law is NOT void, invalid, non-existent or annulled – BUT simply inapplicable (IN.CO.GE)

Principles binding on Member States

  • All MS have had to deal with CJEU’s ‘absolute’ primacy claim
  • Virtually all 28 MS accept the primacy of EU law over national law o As flowing from their own constitutions
  • In some systems (monist – Netherlands) this has been automatic
  • In others, more controversial (dualist – UK) due to transposition o Dualist – enact legislation
  • Germany’s position o That EU supremacy is only applied if there is adequate cover for HR o Only accept supremacy if it acts within the limits of its powers
  • ‘The Masters of the Treaties’ o Brunner v European Union Treaty [1994] 1 CMLR 57 o ‘‘The legal nature of the Union is a “union of states” and not a federal state). The EC...is intended to provide for an ever closer union of the peoples of Europe; it is not a state based on a single European nation. As such, the EC derives its authority from the MS and can have no greater powers than those conferred on it. The MS are the masters of the Treaty’ o TK says: indeed MS prepare, draft treaties, sign them, ratify them, and implement them – a credible argument against the EU
  • The UK’s position
  • ECA 1972 European Communities Act (ECA) in 1972 entailed: o The voluntary transference of sovereignty from Parliament to the EU Institutions EU law = binding source of English law o A transference of the loyalty of domestic courts from the British legislature to the Treaty

Parliament’s powers

  • Parliament can enact, amend and repeal any legislation it pleases (parliamentary sovereignty theoretically intact)
  • But – no more absolute, almost ‘despotic’ power (Blackstone) o Jackson [2005] UKHL 56
  • EU membership has increased both o EU competence o The superiority of national courts – enforcement of EU law over domestic legislation
  • Macarthys Ltd v Smith [1979] 3 All ER 325 The power of precedent
  • Factortame I : no interim relief against the Crown = no protection for applicants’ financial interests = a breach of EU law
  • Factortame II : HL accepted this, CJEU case law force of precedent o If the supremacy... of EU law over the national law of MS was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the ECJ long before the UK joined the EC. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary... (Lord Bridge, Factortame II)
  • R v Secretary of State for Employment, ex p. Equal Opportunities Commission [1995] 1 AC 1 o Lord Keith: ‘The Factortame case is thus a precedent...for the purpose of challenging as incompatible with Community law the relevant provisions of the 1978 Act.’
  • Thoburn v Sunderland County Council [2002] 1 CMLR 50 o ECA 1972 = an example of a ‘constitutional’ statute, to which the doctrine of implied repeal does not apply. ‘Constitutional’ statutes can only be repealed expressly, using clear language A judge’s view
  • In 1974 The Treaty does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute. – (Lord Denning, M.R. in Bulmer v Bollinger [1974] Ch 401 )
  • In 1990 Our sovereignty has been taken away by the European Court of Justice... Our courts must no longer enforce our national laws. They must enforce Community law... No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses—to the dismay of all. Lord Denning, ‘Introduction’ in G.