THE SUPREMACY OF EC LAW
In the making and promulgation of Community law, the European Court of Justice (ECJ) plays a crucial role. Many of the fundamental doctrines of EC law are not to be found in the Treaties, or secondary EC legislation, but in the case law of the European Court.
No provision of the Treaty on European Union (TEU) contains an express term regulating the issue of the supremacy between the Community and the various national laws of the Member States. The only implied reference to the issue of supremacy is Article 10 of the TEU which imposes a duty on all Member States to adopt appropriate measures to ensure that the obligations of the Treaty are observed, together with an additional duty to abstain from all acts which might jeopardise the achievement of the objectives of the Treaty.
Article 10 states that:
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.”.
Thus, the principle of the supremacy of Community law over national law was first established by the European Court of Justice whose role is explicitly stated in Article 220 of the TEU:
“The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed.”
Prior to an analysis of the doctrine of supremacy and the relevant case law and implementation of the doctrine, an introduction into the composition, structure and practices of the European Court of Justice (ECJ) will be followed.
THE EUROPEAN COURT OF JUSTICE
• Composition and Structure
The ECJ, to which the Court of First Instance (CFI) is attached, is the judicial branch of the Community. It has been described by Shaw as “a heroin figure in the development of the EU”. The ECJ, which sits in Luxembourg, now has 15 judges who are assisted by 9 Advocate-Generals (AGs). Each Member State (MS) is entitled to appoint a judge of its own nationality.
The appointment of all judges is required by Article 223 TEU to be:
“by common accord of the Governments of the Member States”.
The term of office is six years and the appointment of new judges or reappointment (for another term) of the existing judges is staggered so that there will be a partial replacement of judges every 3 years.
The judges select one of their number to be President of the Court for a renewable term of 3 years. The President directs the work of the Court and presides at hearings and deliberations.
The ECJ is assisted by 9 AGs. Five of the 9 AGs should be appointed by the 5 largest Member States, the remaining to be appointed by the other Member States on a system of rotation. Their duty, which is set out in Art. 222 TEU is,
“to make, in open court, reasoned submissions on cases brought before the ECJ” with complete impartiality and independence.
The qualifications for selection, method of appointment and conditions of office of the Attorney Generals are the same as for the judges of the Court.
The qualifications for selection as a judge of the ECJ are stated in Article 223 TEU and require:
“persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are jurisconsults of recognised competence.”
Furthermore, judges may not hold any other political or administrative office while they are members of the Court.
In accordance with their respective traditions, certain Member States have appointed...