Issue Two

The Supreme and Supranational European Union

The Supreme and Supranational European Union

 
 

Author:

Alison Koh

 

Durham University

 

 

 

 
The TEEC created a ‘new legal order’ binding institutions of Member States and their citizens[1] – curtailing state sovereignty and reshaping national legal systems.[2] It extended beyond merely producing mutual obligations between Member States, establishing institutions conferred with sovereign rights that are exercised both on Member States and their citizens.[3]

It is therefore widely acknowledged that the European Union (EU) is a sui generis international organisation.[4] This essay examines the foremost unique features of the EU – its relationship with Member States and individuals. Supremacy and the rejection of reciprocity will expound the distinctive relationship between the EU and Member States. The relationship with individuals will then be explicated with direct effect and the directly-elected European Parliament. Characterised by these features, the EU exemplifies a legal order separate from other international systems of governance.

EU and Member States

 

Doctrine of Supremacy

The Court of Justice of the European Union (CJEU) stated that Union law effect must be determined at union, not national, level[5] – forming the bedrock of a multidimensional legal order[6] with Costa, which established the doctrine of supremacy previously absent under international law[7], prohibiting Member States from accepting measures incompatible with EU law.[8] Member States’ legal systems were subsequently transformed by binding national courts to apply Community law[9] – distinguishing it from international law and ordinary international treaties that do not possess such high a degree of primacy.[10]

This primacy limiting Member States’ sovereign rights[11] was solidified over time,[12] with the CJEU stating that directly applicable Community law always prevailed over national law with unchallengeable supremacy.[13] This principle is evident in Internationale Handelsgesellschaft[14] – the CJEU unyielding in its position, albeit conflict with the German Constitutional Court, to preserve the essence of Community law.[15] Furthermore, Simmenthal disallowed the adoption of new national legislative measures incompatible with precedential EU law on top of setting aside national legislative provisions when in conflict with Community law.[16] The CJEU’s position on supremacy is hence absolute and irrefutable – the entirety of Community law prevailing over the entirety of national law regardless of domestic normative status,[17] forming an ‘integral part of the legal systems of the Member States’.[18]

This governs indirect effect as evident in Marleasing, which required a duty to set aside conflicting domestic provisions incompatible with EU law,[19] and Van Colson which emphasised the conformity of national legislation implementing directives with Community law.[20] Factortame I was particularly significant, expanding EU law supremacy even over the domestic law of a dualist United Kingdom with a sovereign parliament – regardless of whether the Act in question was prior to the European Communities Act 1972 s2(1).[21]

 

Rejection of Reciprocity

Another unique feature is the rejection of the principle of reciprocity, where EU treaty obligations are unconditional and independent of other Member States’ behaviour.[22] This is an overt abandonment of public international law principles[23] – taking control from Member States and abolishing the concept whereby comparative infringements of others relieve the Member State’s failure to perform its obligations.[24]

Through preliminary references and fundamental rights protection, EU law emphasises its independent stance towards the equal, not comparative, treatment of EU institutions and Member States. In preliminary references, interpretation is erga omnes  and all national courts are equally bound to the higher standard of the EU treaty.[25] Similarly, Melloni held that Spain’s extended interpretation of Article 53 EU Charter would subvert EU law supremacy which must not be compromised.[26] This EU centralisation and self-containment, enforcing uniform interpretation on all Member States, distinguishes the EU and its direct relationship with Member States from the co-dependent inter-governmental relationships present in public international law. It is precisely this rejection of an indispensable, core feature of the ‘classic international legal order’ that creates a completely ‘new’ community.[27]

 

EU and Individuals

The EU extends its relationship beyond Member States to impose obligations on and confer rights to individuals – showcasing the EU as a truly supranational body transcending domestic governments.[28] This is practicable via the principle of direct effect, where individual rights are enforced against Member States and private individuals.[29]

Direct effect was established in Van Gend en Loos, where the CJEU imposed a ‘negative obligation’ from the ‘clear and unconditional prohibition’ in Article 12 TEEC [now Article 30 TFEU].[30] It enables individuals to invoke EU law rights protection in domestic courts through horizontal and vertical direct effect against a private party or the State/State emanation respectively. This sets the EU apart from other international law bodies whose rules scarcely consider individual rights.[31]

In the circumstances of an individual rights breach according to Treaties, both horizontal and vertical direct effect can be invoked if the right was clear, unconditional and self-executing.[32] Likewise, both effects can also be invoked for directly applicable Regulations, especially those which ‘conceal the Community nature’ – emphasising the dual purpose of direct effect to protect both individual rights and EU supremacy.[33] General Principles falling within EU law can also invoke both effects[34] while Decisions are only enforceable against bound addressees.[35]

Directives, however, can only be vertically effective because Member States are given discretion in its implementation[36] and individuals can only enforce their rights against State failure to implement a Directive that is clear, precise and unconditional,[37] under an expired time limit.[38] Despite this limitation, the vertical effects rule has been broadly construed and can be invoked against emanations of the State.[39] EU law can also be enforced in national courts through indirect effect –its interpretation of national law ‘accord[ing]’ with EU law.[40]

EU supremacy is therefore exerted, ensuring the uniform implementation of Community law while simultaneously empowering individuals to enforce their EU rights in national courts. State liability is imposed for failure to fulfil Treaty obligations – provided the infringed law intended to confer individual rights and the breach was sufficiently serious with a direct causal link with sustained damages[41]. This protection of individuals’ rights against Member States underscores the supranational nature of the EU – a legal order that extends rights to nationals and even safeguards them with remedies.

This extension is reinforced by Article 10(2) TEU, which declares the direct representation of citizens in the European Parliament. The Parliament is thus distinctive, being the ‘only directly elected international legislature in the world’.[42] This links the superior EU with its individuals, enabling democratic participation at EU level in determining the members of the European Parliament.

 

Conclusion

The doctrines, principles and institutions of the EU distinguish it as its own legal order. Through supremacy over Member States and rejection of reciprocity, the EU binds all States equally under prevailing EU law. Furthermore, the supranational nature of the EU extending to individuals enables citizens with the exceptional ability to directly or indirectly enforce EU law in national courts, with remedies such as state liability available for failure to uphold Treaty obligations. Further, this unique relationship with individuals is reinforced by direct involvement in electing members of European Parliament. The incomparable EU legal order is hence manifested in the direct nature of its relationships with both States and individuals, making the EU a truly sui generis organisation.

 

 

 


[1] Case 6/64 Costa [1964] ECR 587, 593.

[2] Karen Alter, ‘The Making of a Supranational Rule of Law’ in Ronald Tiersky (ed), Europe Today (Rowman & Littlefield, 2004) 178.

[3] Case 26/62 Van Gend en Loos [1963] CMLR 105, para 72.

[4] William Phelan, ‘What Is Sui Generis About the European Union? Costly International Cooperation in a Self-Contained Regime (2012) 14 Rev.Int’l Stud. 367.

[5] Van Gend en Loos (n 3).

[6] JHH Weiler, ‘Van Gend en Loos’ (2014) 12 ICON 94, 98.

[7] Derrick Wyatt, ‘New Legal Order, or Old?’ (1982) 7 E.L.Rev. 147.

[8] Costa (n 1) 593-4.

[9] Article 220 TEU and Article 216(2) TFEU.

[10] J. H. Reestman and Monica Claes, ‘For History’s Sake: On Costa v. ENEL’ (2014) 10 EuConst 191, 192.

[11] Costa (n 1) 593.

[12] Treaty Establishing a Constitution for Europe [2004] OJ C310/01 Article I-6.

[13] Sionaidh Douglas-Scott, Constitutional Law of the European Union (Pearson, 2002) 258.

[14] Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para 3.

[15] Douglas-Scott (n 13).

[16] Case 106/77 Simmenthal [1978] ECR 629, paras 17-22.

[17] Robert Schütze, European Union Law (CUP, 2015) 122.

[18] Costa (n 1).

[19] Case 106/89 Marleasing [1990] ECR I-4135.

[20] Case 14/83 Van Colson [1984] ECR 1891.

[21] Factortame I [1990] UKHL 13.

[22] Cases 142&143/80 Essevi [1981] ECR 1413.

[23] Phelan (n 4) 375.

[24] Cases 90&91/63 Commission v Luxembourg and Belgium [1964] ECR 625, 631.

[25] Weiler, ‘Van Gend en Loos’ (n 6) 97.

[26] Case 399/11 Melloni [2013] ECR I-0000, para 57.

[27] JHH Weiler, ‘The Transformation of Europe’ (1991) 100 Yale L.J. 2403, 2422.

[28] Van Gend en Loos (n 5) para 74.

[29] Schütze (n 17) 80-81.

[30] Van Gend en Loos (n 3).

[31] Francesca Martines, ‘Direct Effect of International Agreements of the European Union’ (2014) 25 EJIL 135.

[32] Ibid.

[33] Case 50/76 Amsterdam Bulb [1977] ECR 137.

[34] Case 144/04 Mangold [2005] ECR I-9981 and Case 555/07 Kücükdeveci [2010] IRLR 346.

[35] Article 288 TFEU.

[36] Case 152/84 Marshall [1986] ECR 723.

[37] Case 41/74 Van Duyn [1974] ECR I-1337.

[38] Case 148/78 Ratti [1979] ECR 1629.

[39] Case 188/89 Foster [1990] ECR I-3313.

[40] Litster [1988] UKHL 10.

[41] Originating from Cases 6&9/90 Francovich [1991] ECR I-5357, changed in Cases 46 & 48/93 Brasserie [1996] ECR I-1131.

[42] Lionel Zetter, Lobbying (Harriman House Limited, 2014).


 

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