EU Law Topic 1 – Dynamics Notes
Supremacy/Primacy of EU law
• Costa v ENEL
◦ ECJ Held: Member States have chosen to limit their sovereign rights, though in
limited fields, and so EU law is binding
• Main obstacle to EU supremacy in the UK is parliamentary sovereignty
• resolved in Factortame II
◦ UK courts should disapply national legislation that may be incompatible with EU
law until a final determination on its compatibility has been made.
• Simmental (No 2) [1978]
◦ company imported beef from France into Italy and claimed repayment of fees ch
arged for a veterinary inspection at the frontier on the basis that it is inconsisten
t with EU law. Italy originally disagreed that a national law could be disapplied in
favour of EU law, and argued it must first be brought to the Italian Constitutional
Court to declare the law unconstitutional. Held: courts other than
the Constitutional Court must give immediate effect to EU law without deferrin
g to the Constitutional Court
• Summary: according to the CJEU, all national courts of any level are under an obligation
to apply EU law in priority over conflicting national law adopted at any time, including
constitutional and fundamental rights provisions
Competence
• EU is a body of limited powers for process of creating an ever closer union: Art 1 TEU
• Conferral = Art 5(2) TEU: ‘under the principle of conferral, the EU shall act only within
the limits of the competences conferred upon it by the MS in the Treaties to attain the
objectives set out therein'
• Competence = Art 13(2) TEU: ‘each institution shall act within the limits of the powers
conferred on it in the Treaties, and in conformity with the procedures, conditions, and
objectives set out therein'
• Art 1 TFEU (competences in general)
• Art 2 TFEU (lists exclusive/ shared/ ‘supporting, coordinating, supplementing’
competences)
• Art 3 TFEU (exclusive competence) - only EU can act in that area, MS cannot
• Art 4 TFEU (shared competence) - EU has some power to act, so do MS
• Art 6 TFEU (SCS competences) - EU cannot make binding laws, only MS, and EU can only
support
Internal market competence
• Art 115 TFEU ‘council shall issue directives for approximation of national law as affect
the establishment of the internal market'
, ◦ So the EU has power of harmonisation of internal market laws through
legislation
• Art 114 TFEU
◦ To achieve objectives of art 26 TFEU
◦ Adopt ‘measures for approximation of national laws which have as their object
the establishment and functioning of the internal market'
◦ Procedure for adoption under Art 114: QMV in council, European Parliament as
co-legislator
◦ Limitations of adopting under Art 114:
▪ not an unlimited legal basis
▪ object of the measure must be to improve establishment or functioning
of the internal market
▪ 2 requirements to meet:
▪ it will eliminate obstacles or future obstacles to free trade
▪ it will eliminate an ‘appreciable distortion of competition'
▪ Issue of blurred lines in internal market - Tobacco Advertising case
▪ shared competence area (MS can legislate, but can’t conflict with
EU law, but then the EU also has competence over internal
market to harmonise)
Subsidiarity
• Art 5(3) TEU - ‘in areas which do not fall within its exclusive competence, the EU shall
only act if and insofar as the objectives of the proposed action cannot be sufficiently
achieved by the MS, either at central level or at regional and local level, but can rather,
by reason of the scale or effects of the proposed action, be better achieved at Union
level'
Proportionality
• Art 5(4) TEU ‘the content and form of EU action shall not exceed what is necessary to
achieve the objectives of the treaties'
• So the EU can only interfere with the minimum action necessary to achieve its
objectives
Competence in the Internal Market: Summary
• The powers of EU institutions are legally constrained
• Every piece of EU legislation must have a ‘legal basis’ in the Treaties
• The main internal market legal basis provisions are Art 114 and 115 TFEU
• Judicial review available if EU legislation unlawfully adopted
Direct Effect
• Van Gend en Loos
• Definition of DE: ‘the immediate enforceability by individual applicants of those
provisions in national courts’
• What has direct effect?
Supremacy/Primacy of EU law
• Costa v ENEL
◦ ECJ Held: Member States have chosen to limit their sovereign rights, though in
limited fields, and so EU law is binding
• Main obstacle to EU supremacy in the UK is parliamentary sovereignty
• resolved in Factortame II
◦ UK courts should disapply national legislation that may be incompatible with EU
law until a final determination on its compatibility has been made.
• Simmental (No 2) [1978]
◦ company imported beef from France into Italy and claimed repayment of fees ch
arged for a veterinary inspection at the frontier on the basis that it is inconsisten
t with EU law. Italy originally disagreed that a national law could be disapplied in
favour of EU law, and argued it must first be brought to the Italian Constitutional
Court to declare the law unconstitutional. Held: courts other than
the Constitutional Court must give immediate effect to EU law without deferrin
g to the Constitutional Court
• Summary: according to the CJEU, all national courts of any level are under an obligation
to apply EU law in priority over conflicting national law adopted at any time, including
constitutional and fundamental rights provisions
Competence
• EU is a body of limited powers for process of creating an ever closer union: Art 1 TEU
• Conferral = Art 5(2) TEU: ‘under the principle of conferral, the EU shall act only within
the limits of the competences conferred upon it by the MS in the Treaties to attain the
objectives set out therein'
• Competence = Art 13(2) TEU: ‘each institution shall act within the limits of the powers
conferred on it in the Treaties, and in conformity with the procedures, conditions, and
objectives set out therein'
• Art 1 TFEU (competences in general)
• Art 2 TFEU (lists exclusive/ shared/ ‘supporting, coordinating, supplementing’
competences)
• Art 3 TFEU (exclusive competence) - only EU can act in that area, MS cannot
• Art 4 TFEU (shared competence) - EU has some power to act, so do MS
• Art 6 TFEU (SCS competences) - EU cannot make binding laws, only MS, and EU can only
support
Internal market competence
• Art 115 TFEU ‘council shall issue directives for approximation of national law as affect
the establishment of the internal market'
, ◦ So the EU has power of harmonisation of internal market laws through
legislation
• Art 114 TFEU
◦ To achieve objectives of art 26 TFEU
◦ Adopt ‘measures for approximation of national laws which have as their object
the establishment and functioning of the internal market'
◦ Procedure for adoption under Art 114: QMV in council, European Parliament as
co-legislator
◦ Limitations of adopting under Art 114:
▪ not an unlimited legal basis
▪ object of the measure must be to improve establishment or functioning
of the internal market
▪ 2 requirements to meet:
▪ it will eliminate obstacles or future obstacles to free trade
▪ it will eliminate an ‘appreciable distortion of competition'
▪ Issue of blurred lines in internal market - Tobacco Advertising case
▪ shared competence area (MS can legislate, but can’t conflict with
EU law, but then the EU also has competence over internal
market to harmonise)
Subsidiarity
• Art 5(3) TEU - ‘in areas which do not fall within its exclusive competence, the EU shall
only act if and insofar as the objectives of the proposed action cannot be sufficiently
achieved by the MS, either at central level or at regional and local level, but can rather,
by reason of the scale or effects of the proposed action, be better achieved at Union
level'
Proportionality
• Art 5(4) TEU ‘the content and form of EU action shall not exceed what is necessary to
achieve the objectives of the treaties'
• So the EU can only interfere with the minimum action necessary to achieve its
objectives
Competence in the Internal Market: Summary
• The powers of EU institutions are legally constrained
• Every piece of EU legislation must have a ‘legal basis’ in the Treaties
• The main internal market legal basis provisions are Art 114 and 115 TFEU
• Judicial review available if EU legislation unlawfully adopted
Direct Effect
• Van Gend en Loos
• Definition of DE: ‘the immediate enforceability by individual applicants of those
provisions in national courts’
• What has direct effect?
