Treaties:
Treaty on the Functioning of the European Union (TFEU):
Signed in Rome in 1957, TFEU established what was then the European Economic Community (EEC). It was amended and renamed by the Treaty of Lisbon.
The treaty contains information on how the EU is to function.
Treaty on European Union (TEU):
Signed in Maastricht in 1992. It was amended by the Treaty of Lisbon.
Its aim is to create principles and objectives of the EU, provisions an international framework and sets Common Foreign and Security Policy.
Judicial Interpretation:
Direct Effect:
Some provisions of EU law create an ‘individual right that national courts have to protect’ without prior implementation in national law; national courts are therefore under an obligation to apply EU law. [1]
The subjects of EU law are not only the member states themselves, but also EU citizens that live within them. Therefore, EU citizens can enforce EU law against a member state. Provisions must be ‘clear and precise’ and ‘unconditional’ to be enforced.
In Van Gend en Loos, G imported chemicals from Western Germany into the Netherlands. He was asked to pay import taxes by Dutch customs (D). G objected on the grounds that these taxes went against a prohibition on inter-State import duties under article 12 of the Treaty of Rome. D contested that the right only applied to a natural person, not a legal one.
The European Court of Justice ruled in favour of G; natural and legal persons are alike and member states are directly bound by European treaty law and its provisions.
The EU constitutes ‘a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields’.
Note: This is different from direct applicability (EU regulations).
Supremacy:
EU law is supreme and takes precedence over national law wherever there is a conflict.
In Costa v ENEL, C owned shares in an electricity supply company and sought to oppose nationalisation. He asserted that the creditor for his electricity bill was still the same prior company, not the new nationalised one (ENEL). C submitted that nationalisation was in breach of the Treaty of Rome.
The Italian court stated that a newer national law prevailed over the treaty. The European Court of Justice held that EU law is supreme as member states have consented to limiting their sovereign rights (to a limited degree) to join the new legal order.
The supremacy of EU law holds even in fundamental cases of the constitutional law of the member state, [2] or if the member state’s law has been enacted after the EU law. [3] If EU law was not supreme and national legislatures could create laws contrary to EU law, the treaties would become meaningless.
In the case of the UK, since courts do not have the power of constitutional review, they cannot deem a statute to be null and void. Instead, the UK courts set aside or ‘disapply’ domestic legislation that conflicts with EU law.
References:
[1] Andrew P. Le Sueur, Jo Eric Murkens, and Maurice Sunkin, Public Law: Text, Cases and Materials (4th edn, Oxford University Press 2019) 796 [2] Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) Case 11/70 [3] Amministrazione delle Finanze dello Stato v. Simmenthal SpA Case No 106 / 77 [1978] EUECJ R-106/77 (9 March 1978)
Cases Mentioned:
NV Algemene Transport-Expedite Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) Case 26/62
Flaminio Costa v ENEL (1964) Case 6/64
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