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Constitutional essentials: Direct effect and primacy

Constitutional essentials: Direct effect and primacy. Jan Komárek European Institute & Department of Law. Direct effect and primacy. Bruno de Witte: direct effect: "the capacity of a norm of Union law to be applied in domestic court proceedings"

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Constitutional essentials: Direct effect and primacy

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  1. Constitutional essentials: Direct effect and primacy Jan Komárek European Institute & Department of Law

  2. Direct effect and primacy Bruno de Witte: direct effect: "the capacity of a norm of Union law to be applied in domestic court proceedings" primacy/supremacy: "the capacity of that norm of Union law to overrule inconsistent norms of national law in domestic court proceedings"

  3. Monism and dualism ArminvonBogdandy: "intellectual zombies of another time and should be laid torest" distinguish: philosophicaldebate on thenatureoflawandlegalobligations doctrinal/dogmaticconstructionoftherelationshipbetweenlegalorders: degreesofmonism/dualism

  4. The beginnings: Van Gend facts domestic status of int'l law: to be determined by domestic constitutions the Dutch Const (DeW, p. 4-5) – what was the Dutch court actually asking? (1) "whether Article 12 of the EEC Treaty has direct application ("effet interne") within the territory of a Member State, in other words, whether nationals of such a State can, on the basis of the Article in question, lay claim to individual rights which the courts must protect"(2) the compatibility of the Dutch import duty with Article 12 EEC

  5. DEBATE Van GendenLooswaswrongandshouldbeoverruled. Do youagree?

  6. Van Gend – analysis of the submissions: procedure admissibility PRP or infringement? interpretation or application? a matter of nat. const. law? necessary for the solution of the case (did the referring court have jurisdiction to set aside a rule of national law)?

  7. Van Gend – analysis of the submissions: substance nature of Article 12 (positive/negative obligation), sufficiently precise? addressed to whom? broader considerations (cf. the COM!) Q of national const. law? (vs. uniformity) intention of the parties?

  8. Van Gend – AG Roemer's Opinion the nature of Community law (p. 20) does express reference to the MSs' obligations matter? nature of the provision vs. relationship between legal orders legal certainty and Art. 177? the relationship to the centralized enforcement: what could the Court say? (p. 25)

  9. Van Gend – the judgment jurisdiction "this Treaty is more than an agreement which merely creates mutual obligations between the contracting parties" direct link to "the peoples", "the citizens" internal effects of EC law to be decided centrally (by EC law; does this mean always by the ECJ?) – uniformity, Art. 177 EEC the relationship between "centralized enforcement" (Arts. 169 and 170 EEC – now 258-260 TFEU) and rights of individuals

  10. Van Gend – the famous 'dictum' 'The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community'.

  11. Direct effect – the conditions the general criteria of direct effect: Van Gend - the provision in question must be: sufficiently clear, unconditional, not requiring legislative intervention. Article 12 TEEC:'Member States shall refrain from introducing, as between themselves, any new customs duties onimportation or exportation or charges with equivalent effect and from increasing such duties or charges asthey apply in their commercial relations with each other'.

  12. Relaxing the conditions 2/74 Reyners v. Belgium a Dutch national applying to the Belgian Bar Article 52 TEEC – prohibition on discrimination on grounds of nationality, but Article 54 and 57 envisaging further measures to be adopted by the Council and the Commission, to be implemented by the Member States the ECJ: 'It is not possible to invoke against such an effect the fact that the Council has failed to issue the directives provided for by Articles 54 and 57 or the fact that certain of the directives actually issued have not fully attained the objective of non-discrimination required by Article 52' (para. 29).

  13. Relaxing the conditions 43/75 Defrenne air hostess, contracts held by women members of the Sabena crew terminated on the day they reached 40 Art. 119(1) TEEC: "Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied". is the obligation 'sufficiently clear', 'unconditional' and 'not requiring legislative intervention'?

  14. Defrenne the ECJ: 'For the purposes of the implementation of these provisions a distinction must be drawn within the whole area of application of Article 119 between, first, direct and overt discrimination which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the Article in question and, secondly, indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character' (para. 18).

  15. Vertical and horizontal direct effect can the Treaties create obligations on the part of individuals? compare: Art. 26 (1) TFEU: The Union shall adopt measures with the aim of establishing or ensuring the functioning of the internal market, ... Art. 37 TFEU: "Member States shall adjust any State monopolies of a commercial character..." Art. 34 TFEU: "Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States". Art. 102 TFEU: "Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited ..."

  16. Horizontal direct effect of the Treaty provisions 43/75 Defrenne - Art. 119 TEEC: 'Since Article 119 is mandatory in nature, the prohibition on discrimination between men and women applies not only to the action of public authorities, but also extends to all agreements which are intended to regulate paid labour collectively, as well as to contracts between individuals' (para. 39).

  17. The market freedoms rules of any other nature aimed at regulating in a collective manner gainful employment, self-employment and the provision of services - eg professional sport associations (Case 36/74 Walrave and Koch – UCI, C‑415/93 Bosman - UEFA) or national bars (C‑309/99 Wouters and Others) intellectual property rights holders - C‑10/89 HAG II BUT: C-281/98 Angonese: job applicant, suit against a bank – private party (requirement to produce a certificate of bilingualism) only discrimination on grounds of nationality? impeding access to the market?

  18. The Viking Case C-438/05 International Transport Workers' Federation and Finnish Seamen's Union ('Viking') a suit against labour unions AG Poiares Maduro's general theory of horizontal effect of market freedoms (paras. 31-54) a rather confusing reply from the Court... (paras. 56-61 – limited to trade unions contra para. 64 - a general principle ?)

  19. Direct effect and direct applicability Art. 288, second subparagraph TFEU: 'A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States'. does it mean that any provision of a regulationis also 'directly effective'? direct effect, direct applicability, self-executing...

  20. Case C-403/98 Azidenda Agricola Monte Arcosu no definition of a 'farmer practising farming as the main occupation' required by regulation 797/85 a dispute between a national authority and a farmer applying for the registration to a scheme prescribed by the regulation 'automatic' direct effect? rejected: see paras. 26-28 – 'discretion enjoyed by the Member States'

  21. Case C-253/00 Muñoz and Superior Fruiticola horizontal direct effect of regulations? a competing importer violating provisions on quality standards of fruits (marking) "the full effectiveness of the rules on quality standards and, in particular, the practical effect of the obligation laid down by Article 3(1) of both Regulation No 1035/72 and Regulation No 2200/96 imply that it must be possible to enforce that obligation by means of civil proceedings instituted by a trader against a competitor".

  22. The twin principle: primacy/supremacy Case 6/64 Costa v. ENEL: '[T]he law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question'. Case 11/70 InternationaleHandelsgesellschaft: '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'.

  23. DEBATE Doesitmatterifwecalltheprincipleprimacyorsupremacy?

  24. Primacy or supremacy? BVerfG, LisbonTreaty, para. 335: 'The primacy of application of European law does not affect the claim to validity of conflicting law in the Member States; it only inhibits its application to the extent required by the treaties and permitted by them under national legislation adopted to give effect to them within the Member States'. C-10/97 to C-22/97 IN.CO.GE.’90 and Others, para. 21: '... the incompatibility with Community law of a subsequently adopted rule of national law [does not have] the effect of rendering that rule of national law non-existent. Faced with such a situation, the national court is, however, obliged to disapply that rule, provided always that this obligation does not restrict the power of the competent national courts to apply, from among the various procedures available under national law, those which are appropriate for protecting the individual rights conferred by Community law...'

  25. Primacy or supremacy? BUT: Case 104/86 Commission v Italy: 'The primacy and direct effect of the provisions of Community law do not release Member States from their obligation to remove from their domestic legal order any provisions incompatible with Community law, since the maintenance of such provisions gives rise to an ambiguous state of affairs in so far as it leaves persons concerned in a state of uncertainty as to the possibilities available to them of relying on Community law. doesthedistinctionhaveanypracticalmeaning?

  26. The issue of primacy Article I-6 ofthe ECT: 'The Constitution and law adopted by the institutions of the Union in exercising competencesconferred on it shall have primacy over the law of the Member States'. Declarationconcerningprimacy: 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. The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):

  27. Opinion of the Council Legal Service of 22 June 2007 'It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/64) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice'.

  28. Constitutional identity Art. 4(2) TEU: 'The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State'. whois to define 'national identity', 'essentialstatefunctions', etc? are these thesame in allMemberStates?

  29. Constitutional identity Case C-159/90 Grogan – Irishabortioncases C-213/07 Michaniki – the Q ofincompatibility between the media sector and the public procurement sector, providedfor in theGreekConstitution – cftheOpinionof AG Poiares Maduro andthejudgment! Case C-208/08 Sayn-Wittgenstein, para. 92: 'It must also be noted that, in accordance with Article 4(2) TEU, the European Union is to respect the national identities of its Member States, which include the status of the State as a Republic'.

  30. Implications for national inst. structures Case 106/77 Simmenthal II: 'National courts must protect rights conferred by provisions of the Community legal order and that it is not necessary for such courts to request or await the actual setting aside by the national authorities empowered so to act of any national measures which might impede the direct and immediate application of Community rules'. Case C-188/10 and C-189/10 Melki constitutionalreform in France – introductionof 'la question prioritaire de constitutionnalité' (ex post, 'concrete' const. review challenged by the Cour de cassation

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