Supremacy/ Primacy of European Union Law
State sovereignty and supremacy of European Union law are traditionally seen as fundamentally opposite in nature. The rights of states to deal with national issues internally, in compliance with national law, versus the obligation on states to subordinate national law to Community law. Where it is contained:
Historically the EEC treaty contained no provision dealing with the concept of supremacy of Community law over the national law of member states. In fact, treaties were generally silent as to the nature of the relationship between EU law and national law except for a general obligation contained in article 4 (3) TEU which states:- “‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.’ The concept of Supremacy is now, however, contained in declaration 17 within the Treaty of Lisbon. The declaration is not a formal provision and has no binding basis within the treaty due to the dropping of the proposed provision at the behest of the European Council in 2007, largely due to the controversial reception by member states of the ambiguous provision. Declaration 17 provides that: “In accordance with well settled case law of the court of justice, the treaties and law adopted by the union on the basis of treaties have primacy over the law of Member States, under conditions laid down by the said case law” Development of concept:
Since no formal provision was contained within the treaties concerning the supremacy of EU law over national law the doctrine was instead developed by the European Court of justice on the basis of its conception of “the new legal order”. The new legal order was the concept that member states of the community in the aim of achieving a common market and allowing free movement of goods, people and capital had permanently limited their sovereign rights as states which in turn necessitated the subordination of national law in order for the union to function as a single entity. The ECJ ruled that the aim of creating a uniform common market would be undermined if EU law could be made subordinate to national law of member states. Most states do not unconditionally monist view of the ECJ as regards supremacy of EU law. While most accept the requirements of the doctrine in practice, in order for the Union to function as a single market, most regard this as flowing from their national constitutions and not for European instruments. Case Law:
The issue of the new legal order was first touched on in the case of: Van Gend en Loos v Nederlandse Administratie:
Van Gend en Loos were a firm of importers who were required to pay a customs duty on urea formaldehyde (glue) imported from Germany to the Netherlands under a law that was adopted post EEC. The importers challenged this on the basis that it infringed article 28 TFEU (then Art 12) which prohibits the introduction of new customs duties. Although the case centred mainly on the issue of direct effect in the case it was stated that: “the objective of the EEC treaty is to establish a common market, the functioning of which is of direct concern to interested parties within the community, implies that this treaty is more than an agreement which merely creates obligations between the contracting states… The conclusion to be drawn from this is that the community constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights… Independently of the legislation of...
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