The Student Room Group

Reply 1

I really hope someone replies to this thread too. I am really struggling with this concept of supremacy too.

Please help people

Thanks Leanne xxxxxx

Reply 2

Hi

Briefly, supremacy of EU law means that EU law takes precedence over national law. So states have limited there sovereignty by accepting EU law. The ECJ has ruled in a number of cases Van Gend en Loos (1963), Costa (1964).

So in answer to the question, the supremacy (or primacy) of EU law is already well established. The Reform Treaty (aka Lisbon treaty) which is being signed today will not state that EU law has primacy over national law, but it will include a declaration acknowledging the existing case law.

So omitting the primacy clause has more political significance than legal. The original Treaty of Rome (often referred to as The Treaty) has been amended by various other treaties but it has never explicitly stated the primacy of EU (previously EEC or EC) law. Instead, the ECJ established this. Whereas the Constitution Treaty (which failed) did explicitly state the primacy of EU law, for political reasons this has been left out of the Reform Treaty.

Supremacy is an important concept of EU law and most text book spend a whole chapter on it.

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Reply 3

Here is the declaration from the Treaty of Lisbon

17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
AF/TL/DC/en 9

"Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/6411) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."


http://www.consilium.europa.eu/uedocs/cmsUpload/cg00015.en07.pdf

HTH

Please let's have some comments from others on this thrread.

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Reply 4

nofriends8
Hi,

I'm a second year uni student @ LSE and I'm really struggling with a particular question, which is

‘The supremacy of European Union law is so firmly established in the jurisprudence of both the ECJ and national courts that omitting the primacy clause from the Reform Treaty would have little or no significance’. Discuss.

Any ideas? I can't seem to fill the whole thing

nofriends8


Was it not rejected in brunner v TEU?

National courts? I think not..parliamentary sov will always be a hindrance to this...although factortame case is an exception

Reply 5

adam_iz2
Was it not rejected in brunner v TEU?

National courts? I think not..parliamentary sov will always be a hindrance to this...although factortame case is an exception


An exception?? Factortame is very much the rule. Only an express repeal of the ECA 1972 would change things now.

Reply 6

where are people getting this factortame an exception stuff from. thats the second time i have seen it cited.

must be a rouge textbook out there.

Reply 7

I think this is pretty much asking you to show the examiners that you know how the principle of supremacy of EU law has been established + the actual principles + how they relate to national courts.

These are the NEED-TO-USE case list for any supremacy question. I have placed them in order of oldest case first ... so you can then go through them in historical order showing the changes that have occurred that helped mould the law into the position it is in today.

Van Gend en Loos v Netherlands
Costa v ENEL
Internationale Handelgesellschaftl
Simmenthal v Commission
R v Secretary of State for Transport, ex parte Factortame (no.2)
R v Secretary of State for Transport, ex parte Factortame Ltd and Other


Lastly, I would point out that to have any significance an omission from the reform treaty (well ... the treaty of Lisbon ... now) is not powerful enough - it will need to categorically state the new stance of supremacy, and perhaps giving justifications for the above theory.

All the best ...