1

THE EUROPEAN COURT OF JUSTICE AND

THE SUPREMACYOF EC LAW

  1. INTRODUCTION

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[1] 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[2] 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.

II.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[3] 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[4] is,

“to make, in open court, reasoned submissions on cases brought before the ECJ” with complete impartiality and independence.[5]

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[6] 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 academics to sit as judges, whereas others – such as the U.K. – have nominated existing national judges or practicing advocates.

Although states tend to select their own nationals, the Treaty clearly requires that the judges be entirely independent of their national governments. Judging from the nature of the ECJ´s jurisprudence, the wishes of individual Member States have had little influence on its decisions-making.

Under Article 221 TEU[7] the ECJ is permitted to sit in Chambers of 3 or 5 as well as in plenary session. The court will, however sit in plenary session when a MemberState or a Community Institution which is party to the proceedings so requests, or in particularly complex or important cases.

The organisation of the Court is regulated by a separate Protocol to the EC Treaty – Protocol on the Statute of the Court of Justice.

Matters of procedure are regulated by this Protocol, including the content of oral and written pleadings, citation of witnesses, costs and expenses etc.

The problem of over burdening the Court apparently continues to grow[8] despite the temporary easing of the caseload which the establishment of the CFI, in 1988 initially brought about.

Other than the appeal on a point of law from the decisions of the CFI to the ECJ, there is no further appeal from the judgments of the ECJ, which is the ultimate or supreme Court of the EC.

The Court of First Instance (CFI)

  • Composition

The Single European Act, (1988) authorised the Council of Ministers to create a CFI to alleviate the volume of work before the ECJ.

The aim of the creation of the CFI in 1989 was to strengthen the judicial safeguards available to individuals by introducing a second tier of judicial authority and enabling the ECJ to concentrate on its essential task, the uniform interpretation of Community law.

The CFI consists of 15 judges who are appointed by agreement between Member States for periods of 6 years. There are no permanent AGs. The duties of an AG are performed by one of the judges.

  • Jurisdiction

The CFI does not extend the jurisdiction of the ECJ, but rather, it exercises certain aspects of the Court’s functions.

The jurisdiction extends to the following classes of cases:

-staff cases

-competition cases

-cases under the ECSC Treaty

-anti-dumping cases

It has no jurisdiction to hear preliminary rulings.

Furthermore, according to Art. 225 TEU, decisions of the CFI are subject to an

appeal to the ECJ on points of law only.

Enforcement of EC Law in Domestic Courts

Like any true legal system, the Community legal system needs an effective

system of judicial safeguards when Community law is challenged or must be applied.

The ECJ, as the judicial institution of the Community, is the backbone of that system of safeguards. It is responsible for interpreting questions of EC law and provision is made in the Treaty for references to the ECJ by national courts. Decisions of the ECJ, upon a reference, are reached by majority vote and are binding on all domestic courts of all Member States. Under Article 234 TEU[9] it is provided that:

“The Court of Justice shall have jurisdiction to give preliminary rulings concerning

(a)The interpretation of the Treaty;

(b)The validity and interpretation of acts of the institutions of the Community…

where such a question is raised before any court …of a Member State that court…..may, if it considers that a decision on the question is necessary to enable it to give judgment, request the ECJ to give a ruling……..Where any such question is raised……before a court of a Member State against whose decisions there is no judicial remedy under national law, the court……shall bring the matter before the Court.”

It is through this Article that the ECJ has achieved the principle of supremacy and its uniform application in all Member States when Community law may be in conflict with domestic legislation. In CILFIT (1983) the ECJ emphasised that the purpose of the then Art. 177 was to ensure the proper application and uniform interpretation of EC law in all Member States.

However, preliminary references procedure depends on the effectiveness of cooperation between the ECJ and national courts. The power to ask for a preliminary ruling rests solely with the national court and the power of the ECJ is limited to an interpretation of EC law[10].

In procedural terms, individuals still have no right of appeal to the ECJ and the national court can decide whether a reference is necessary; the Court´s judgements are still, in theory, at least, only given on points of interpretation and validity.

However, following the many changes that the Community has gone under, the ECJ΄s role has been evolutionary, siting at the apex of the Community judicial hierarchy. The increasing emphasis which the ECJ places on Article 10 TEU, rendering Community law applicable to national courts as well as to the political arm of Member States, is merely one important manifestation of this process in operation.

The Community as a whole is in a state of transition, and it would be surprising if the relationship between the ECJ and the national courts were to remain immune from the wider changes. As the Community moves towards a closer social and political union, one could well expect the ECJ to cement its position at the apex of the judicial hierarchy.

  1. THE DOCTRINE OF SUPREMACY – PRINCIPLE

The ECJ, as the guardian of legality and instrument of cohesion within the Community, has, from the start been in a strong position to define the status of Community law and to give it precedence when in conflict with the national legal systems of the various Member States.

The first case where the Court made a statement on the nature of European law is the famous case of Van Gend en Loos v. Netherlands(1963)[11] dealing with the principle of direct effect of EC Treaty provisions and the degree to which individuals can rely on such terms to challenge measures of national law.

In that case, which will be dealt with in detail later on, the ECJ stated that:

“The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states…

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 MemberStates but also their nationals”.

The reasoning of the Court in the case is brief and apart from its elaboration on the concept of direct effect, where it stressed the need for direct enforcement by national courts of Community norms, little more was said about the need for national courts to accord primacy to EC law over conflicting national law. The Court’s focus in Van Gend was on whether Article 12 (customs duties on imports from Member States to other Member States) could give rise to so-called direct effects - the immediate enforceability in national courts by individual applicants of Treaty provisions - so that an individual could rely on and have that Article enforced before domestic courts.

The approach of the Court was based on the Court’s vision of the kind of Community which those Treaties had set out to create, and the kind of legal system which the effective creation of such a Community would necessitate.

It was in a second important case, two years later, however, that the ECJ expanded on its constitutional theory of the Community, declaring again that the states had created a sovereign Community by limiting their own sovereign rights.

The case was Costa v. ENEL (1964)[12] and the facts were as follows:

An individual was claiming before his local court that the law nationalising production and distribution of electricity was incompatible with the EC Treaty. The local court referred the question to the ECJ for a preliminary ruling.

The ECJ in its judgment emphasised the unlimited duration of the Community, the autonomy of Community power, both internally and externally, and especially the limitation of competence or transfer of powers from the states to the EC.

The Court was determined to show that the “words and spirit of the treaty” necessarily implied that:

“It is impossible for the states to set up a subsequent unilateral measure against a legal order which they have accepted on a reciprocal basis”.

The Court found the primacy of EC law confirmed by the wording of Article 189 EC Treaty[13] under which regulations have“binding” force and are “directly applicable in all Member States”.

The Court pointed out that this provision which is not qualified by any reservation “would be meaningless if a state would unilaterally nullify its effect by means of legislative measures which could prevail over EC law”.

The Court was thus able to reach a conclusion in Costa in words which have become classic and have had considerable influence in national decisions:

“It follows from all these observations that the 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.

The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail”.

  • As in the case of Van Gend, the Court made no reference to the constitution of any particular MemberState to see whether such a transfer or limitation of sovereignty was contemplated or even was possible in accordance with that constitution.
  • Furthermore, the Court drew on the “spirit and the aims” of the Treaty to conclude that it was “impossible” for the Member States to accord primacy to domestic laws.

The spirit of the Treaty required that they all act with equal diligence to give full effect to Community laws which they had accepted on the basis of state “reciprocity” – meaning presumably that since each state was equally bound by laws passed for the Community as a whole, they had all agreed that no one of them would unilaterally derogate from Treaty obligations. And since the “aims” of the Treaty were those of integration and co-operation, their achievement would be undermined by one MemberState refusing to give effect to a Community law which, should bind all.

In Van Gend and Costa v. Enel the Court set out its theorical basis for the principle of supremacy of Community law. The force and practical application of the principle became clearer still in its later decisions.

In the following case, the Court made clear that the legal status of a conflicting national measure was not relevant to the question whether Community law should take precedence: not even a fundamental rule of national constitutional law could, of itself, be invoked to challenge the supremacy of a directly applicable EC law:

Internationale Handelsgesellschaft v. Einfuhr(1970)[14]

“Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by the institutions of the Community 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…….

The validity of a Community measure or its effect within a MemberState 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”.

This decision gave rise for some time to a potentially serious deadlock in relations between the German Constitutional Court, which held that the Community deposit system breached a fundamental provision of the national legal order, and the ECJ, which denied that national constitutional principles could have any effect on the domestic applicability of Community law.

But far from backing off from its claims, the Court continued to emphasise the importance of ensuring that the supremacy of Community law was not simply a matter of principle or of theory only, but was given practical effect by all national courts in cases arising before them.

It is however, interesting to note that following this case, the ECJ evolved the concept of EU fundamental rights declaring them to be general principles of law that the Court will apply within the framework of Community law

In Simmenthal SPA(1978)[15] an Italian judge was faced with a conflict between a Council Regulation on the common organisationsof the market in beef and veal and the Italian veterinary and public health laws.

Under Italian law, domestic legislation contrary to EC Regulations may be held to be unconstitutional but only by such declaration from the Constitutional Court and not by the ordinary courts.

Should the Italian judge of First Instance disregard inconsistent national legislation without waiting for its repeal from the Constitutional Court?

In a reference to the ECJ on the question, the latter held that the national court was under a duty to give full effect to Community law even where there was a conflicting provision of national law and without waiting for a higher court to rule on the matter.