National Law In Conflict With Ec Law example essay topic

European Law Assignment The doctrine of supremacy allows community law to prevail over national law, including national constitutions. It also limits the law making powers of the member states and imposes duties to enforce community law on the authorities of the member states; including the courts. Discuss in light of statements made by the European court of justice? Ever since the extended application by the European Court of Justice (ECJ) of the principle of direct effects jointly with the wide scope of the European Community (EC) Treaty, dealing in areas usually reserved to national law has inevitably led to a conflict between national law and EC law. The way in which the conflict was resolved was to be of crucial importance to the Community legal order, as it posed a constitutional problem for many participating member states.

The direct effect doctrine is an important phenomenon that gives individuals the power to claim rights conferred directly by EU treaties, regulations, decisions and directives (after their effective date) even if their member states have failed to introduce them into domestic law, or have not implemented them correctly. The EC treaty is silent on the question of priorities; maybe this is a diplomatic omission or perhaps the treaty did not find it necessary to make the matter explicit, since the extent to which Community law might be directly effective was not envisaged at the time of signing the treaty. If there were to be an absence of guidance, the matter would be decided by the courts of Member states, albeit with the assistance of the ECJ in its jurisdiction under Article 234. Usually the question of priorities between directly effective international law and domestic law is normally seen as a matter of national law, determined by constitutional rules of the state concerned. This hinges on a number of factors.

Firstly it depends on the terms on which international law has been incorporated into domestic law, this resulting on whether the state is monist or dualist. If monist it will be received automatically into national law whereas if the state is dualist, international law will not become binding internally, as part of domestic law until it is incorporated by a domestic statute. Countries such as France and the Netherlands follow the monist approach whereas the U. K and Germany favour the dualist approach. But whether law is received automatically, by process of 'adoption' or whether incorporated by statute, by way of 'transformation', this does not settle questions of priorities. With the differences in law clearly evident from state to state it seems clear that if national courts were to apply their own constitutional rules to the questions of priorities between domestic law and EC law, there would be no uniformity of application, and the primacy of EC law could not be guaranteed throughout the community. The following cases seem to suggest that Community law prevails essentially over national law.

They also tends to imply that the Community has the power to limit powers to any member state thus enforcing duties upon them, including the Courts. The case of Van Gend en Loos (case 26/62) was the first case in which EC law gave a cautious statement on the principle of supremacy. The principal question in the case focused on the question of the direct effects of Article 12. The conflict, assuming that the Article was found directly effective, was between then Article 12 and an earlier Dutch law. As with Dutch law if Article 12 was directly effective, under the Dutch Constitution, it takes precedence over domestic law.

This case involved a firm of importers who were obliged to pay tax duty on a particular substance imported from Germany to the Netherlands under a law following the establishment of the E.E.C. Subsequently the court went on to say that: the Community constitutes a new legal order in international law, for whose benefit the states have limited their sovereign rights, albeit within limited fields. Another key case in this area was that of Costa vs. E NEL, involving an alleged conflict between a number of treaty provisions and an Italian statute nationalising the electricity company of which the defendant was a shareholder, but at this point the Italian law was later in time. The defendant argued that the company was in breach of EC law, but the company argued 'lex posterior', whereby that the Italian act nationalising the electricity company was later in time that the Italian ratification act, an act incorporating EC law, thus taking priority. Therefore the Italian courts referred this question of priorities to the ECJ. Here the ECJ gave a direct statement on the supremacy of EC law. Many important issues further to those in Van Gend en Loos were decided in the judgement.

In citing Van Gend en Loos the court said that the states had 'limited their sovereign rights'. It looked at the Treaty noting that Article 249 indicated that there had been a transfer of powers to the Community institutions. The court concluded: ' The transfer by member states, from their national orders in favour of the Community order of the rights and obligations arising from the Treaty, carries with it a clear limitation of their sovereign rights upon which a subsequent unilateral law, incompatible with the aims of the community, cannot prevail. The Court also made it clear that the doctrine of Community law supremacy was not one that it had merely invented but one that could be inferred from the treaty. It said that, "the precedence of Community law is confirmed by Article 189... 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". The court went even further in the case of Internationale Handelgesselschaft mbH (case 11/70).

This case involved a conflict between an EC regulation and provisions of the German constitution. The dispute stemmed from a clash between a requirement under the Common Agricultural Policy (CAP) for an export licence and German fundamental rights. The applicant wanted the regulation scrapped in the German court, his argument being that the German constitution, which enshrines fundamental rights, took precedence over EC law. The EC remarked by saying that Community law even prevails over written constitution such as that of Germany.

It also went on to say: 'Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions... would have an adverse effect on the uniformity and efficacy of Community law. The validity of such measures can only be judged in the light of Community law'. At this point one would ask the question what would happen if a national law, in conflict with EC law, were passed after treaty legislation. In Amministrazione delle Finance vs. Simmental this case involved a conflict between an Italian statute approved after the Ratification Act and Article 28 EC on the free movement of goods.

The Italian judge passed a question on to the ECJ based on whether he should wait for a response from the Italian constitutional declaring the measure void. (As they stated that they would if the Italian law conflicted with EC law). The ECJ responded by saying that national courts shall refrain from applying the conflicting national legislation even if adopted subsequently and should wait for the decision of a higher court before action. It was also decided that such laws are treated in the same way as laws passed before treaty legislation otherwise this, 'would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and would imperil the very foundations of the Community'. A further development in the doctrine of supremacy, where national statutes may be set aside happened in the case of R vs. Secretary of State for Transport ex. parte Factor tame Ltd.

This case involved a case brought to the English courts by a group of Spanish fishermen for an interim junction to prevent the application of certain sections of the Merchant Shipping Act 1988, thus denying them the right to register their boats in the U.K. The claimants alleged that the U. K was in breach of EC law. The ECJ found in favour of the fishermen and forced the U. K to override a constitutional rule preventing interim relief against the crown meaning that it had to set aside a national statute, and in turn the issue of 'parliamentary supremacy' in the U. K in serious doubt. The Court stated: 'The full effectiveness of Community law would be... impaired if a rule of national law could prevent a court seized of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgement to be given on the existence of those rights claimed under community law. It follows that a court which in those circumstances would grant interim relief were it not for a rule of national law, is obliged to set aside that rule'. Therefore the obligation on Member States to ensure the full effectiveness of EC law require the national courts not only to renew the offending national law but also to find a solution which is not yet available under national law. The problems that supremacy poses can sometimes be avoided by recourse to the principle in the Mar leasing case.

This case required national courts to interpret national legislation whereby they would have to comply with EC obligations whether or not the national law is passed before or after the relevant EC law. The Court went on to say that: 'The obligations of Member States under a directive is to achieve its objects, and their duty by Article 5 of the Treaty (of Rome) to take all necessary steps to ensure the fulfilment of that obligation, binds all authorities of member States, including national courts within their jurisdiction. It follows that in applying national law whether the provisions concerned pre-date or post-date the directive, the national court asked to interpret national law is bound to do so in every way possible in light of the text and aim of the directive to achieve the results envisaged by it, and thus to apply Article 189 of the Treaty'. Overall the courts of member states have generally accepted the principle of supremacy of EC law providing they regard it as directly effective. This has been done in various ways, in some instances by bending and adapting their own constitutional rules whereas other states have devised new constitutional rules to meet the new situation. It is therefore possible to see how the ECJ has created this doctrine of the supremacy of Community law.

It has done this to ensure uniformity and equal treatment within the EC and has thus helped to ensure the integration of member states within the Community.