Class Three – 1/20/09

Competency, Supremacy and Procedural Law

(Daemen)

Competency and Supremacy

The cycle of powerTransfer

Competence

Supremacy

Overview

Difficult political, not legal, issue Original treaties less than clear (why?)Note the importance of the ECJ (again)

Transfer Overview

Recall the treaty class…

EU all about transfers, pooled resources and shared responsibilities to get things done in a new global eraEach successive treaty expanded this notion further Over the decades, some clear political limits (e.g., external competence; but see Reform Treaty) Once treaty is adopted, should political issues remain?

Didn’t Member States approve?What about agency/ECJ “creep”?

Competencies (1)Overview

Treaties, treaties, treaties: specific chapters detail competenciesCompetency granted means competency taken awayHistorical lists are easy, “living” EU is notHence, competence “creep” Exclusive

- EU: only in few areas (e.g., some aspects of duties/

fishing)- Member States: everything not exclusive or concurrent

Concurrent- Everything else; but

what does that mean? - Who leads, who follows?

- Case: Cassis (Rayo Antonio, Joan Flaschen)

Competencies (2)Extending Competencies

Let me count the ways

Treaty amendmentsInstitutional use of implied powersInstitutional use of general/residual powers

…all subject to ECJ review, of course…

Controversial from the start

See Constitutional Treaty / Reform Treaty attempts to provide greater clarify

Competencies (3)Implied Powers

Treaties establish many goals but few express powers

So how does anything get accomplished? Implied powers.

Regularly ratified by the ECJ

Commission v. Germany (social policy: if treaties identify specific task, implied powers are assumed to prevent treaty provisions from being wholly ineffective)Commission v. Council (int’l agreements: express and implied powers to handle external and associated internal issues)Commission v. Finland (air transport: MS can’t adopt agreements that impact Community competence)

Competencies (4)Residual Powers

Specific residual powersPowers specifically granted to achieve specifically identified goals

General residual powersAnything else (i.e., general powers necessary to achieve objectives)(e.g., Article 308 powers)Highly controversial because Member States claim usurpation of authority, but regular ECJ approvalExamples: equal treatment, environmental matters; but see ECHR accession, or existence of specific treaty

Proportionality Art. 5(3): EU actions should not go beyond what is necessaryECJ precedent recognizes broad legislative discretionExample: working hours (UK appeal rejected)

Competencies (5)Subsidiarity

The history: confusionThe concept is easy: decisions should be taken at the most appropriate level The execution is hard:

No clear reference in original treaties (why?)Plenty of examples reflecting both sides of the divide

The present: more confusionSEA Art. 174 (environmental only)TEU

Art. 1: decisions to be taken “as closely as possible to the citizen”Art 5(1): community should only act when objectives “cannot be sufficiently achieved” by Member States

What does this mean/how does this work in practice?Litigate, litigate, litigate Compare Tobacco Advertising Ban case with others on p. 114

Competencies (6)Subsidiarity (cont.)

The future: still more confusionConstitutional Treaty: sought to improve clarity about roles and responsibilitiesReform Treaty: revised and expanded explanation of competencies But what is the future of the RT, particularly given upcoming election cycle?The practical reality? Litigation, litigation, litigation.

Supremacy (1)

EU

Member States

Supremacy (2)The ECJ Perspective

As always, start with the treatiesNo express declaration of supremacy (why?)Numerous implied declarations in EC Treaty

Art. 10 (good faith)Art. 12 (non-discrimination on nationality)Art. 249 (direct applicability of Regulations)

Nature abhors a vacuum, which ECJ promptly filled

Case: Van Gend en Loos (Robin Dean, Anna Penar)See also Case 6/64, Flaminio Costa v. ENEL

The result? Tremendous EU operational success (not absolute, of course)Controversy and the rise of Euro-skepticism

Supremacy (3)Supremacy and Member State Constitutional Law

Once again, the absence of an express declaration of supremacy led to a vacuum, which was promptly filled by the ECJSee 11/70, Internationale Handelgesellschaft

National courts cannot review Community lawIn this case, however, no breachi.e., diffused/dodged the issue

See 106/77, Simmenthal“The law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law….Therefore the validity of a Community measure or its effect within a Member State 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.”

Supremacy (4)Miscellaneous Final Observations

These are just a few of many cases

Is supremacy truly necessary to the creation of a well-functioning federal regime?

Compare the supremacy language in the Constitutional Treaty vs. the Reform Treaty

EU Law in Member States

Case Studies

Monism•Int’l and national law form a single system•Int’l agreements are self-executing / directly applicable

Dualism•Int’l and national law form parallel worlds•Nat’l legislation needed to adopt int’l law mandates

Relationship Between National and Int’l Law

United Kingdom (1)The Challenges

Not a founding member (i.e., had time to assess)Even with this time, however, challenges remained

“Unwritten” Constitution

No single codified

constitutional document

Any transfer of power to EU

not permanent

Dualist Approach

Treaties must be converted into domestic law

Dualist approach viewed as complex, timing consuming, and not permanent

Parliamentary Sovereignty

UK Parliament enjoys remarkable autonomy (no constitutional role

for UK courts)

Posed major problems for

assessing supremacy issues

United Kingdom (2)The Solution: European Communities Act (1972)

“Unwritten” Constitution

ECA does not reproduce entire EU

treaty base, but rather reflects basic

concepts

ECA § 1 “future proofs” by recognizing legal

validity of future treaties (i.e., creates new legal

system)

Dualist Approach

ECA § 2(1) recognizes direct

effect

ECA § 2(2) allows for UK secondary

legislation to implement some EU mandates

Parliamentary Sovereignty

ECA § 2(1) allows for future

developments by ECJ

ECA §§ 2(4) and 3(1) recognize EU

supremacy and authorizes UK court references to ECJ

United Kingdom (3)ECA an imperfect solution (aka, UK Courts and EU Law)?

• CAP vs. national farming rules

• EU law wins

Pigs Marketing Board (1978)

• Treaty vs. national equal treatment rules

• Treaty wins, but critical dicta about intent

Macarthy’s v. Smith

(1979)

• EU directive vs. national antidiscrimination rules

• National law wins b/c no direct effect

Duke v. GEC

(1988)

United Kingdom (4)ECA an Imperfect Solution (aka, UK Courts and EU Law)?

• EU directive vs. national equal pay rules

• EU law wins; Duke distinguished on intent and direct effect

Pickstone v.

Freemans (1988)

• Kyle Silk-Eglit, Emily Nauman

Factortame

Conclusions

• Lord Bridge in Factortame: “If the supremacy within the European Community of Community law over the National law of member states was not always inherent in the EEC Treaty it was certainly well established in the jurisprudence of the Court of Justice long before the United Kingdom joined the Community. Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.”

• In short, UK courts now accept EU supremacy

• But that doesn’t stop people from trying (see Metric Martyrs example)

GermanyOverview

Dualist country (i.e., supplemental legislation necessary)Longstanding principles recognized validity of international law, but did not provide constitutional-level protectionsResult: Art. 23 of constitution

Sovereign powers can be transferred to EURequires approval of both houses of German parliament

Judicial ReceptionNote: key distinction between constitutional court and “regular” supreme courtSolange I (1974)(EU law vs. national human rights law; national law wins if EU protections deemed insufficient)Solange II (1974) (EU law vs. national human rights law; court will not review if EU protections sufficient)

Germany (2)Judicial Reception (cont.)

Re: VAT Exemption (1989)(EU law vs. national tax requirement; EU law wins in that final national courts must refer issues to ECJ as necessary)Brunner (1994)(EU treaty requirements vs. national constitutional protections; national law wins in that court reserves right to review transfer of powers in light of national constitutional protections)

ConclusionsSituation uncertainTrend towards recognizing supremacy, but sufficient caveats that a difficult fact pattern would prove interestingIs data retention the difficult fact pattern?

ItalyOverview

Similar to Germany, dualist country (i.e., supplemental legislation necessary)Similar to Germany, longstanding principles recognized validity of international law, but did not provide constitutional-level protections

Judicial ReceptionUnlike Germany, Italy remembered for leading ECJ precedent on supremacy (Costa v. ENEL, Simmenthal)Frontini (1984)(generally accepts EU supremacy)Fragd (1985)(court reserves right to assess adequacy of EU protections)

ConclusionsAs in Germany, situation uncertain

FranceOverview

General monist approachHowever, constitution silent about supremacy of international law over constitutional protections

Judicial Reception“Regular” courts

Generally recognize EU law supremacy Frequently issue ECJ referrals

Administrative courtsLess receptive to EU supremacy (in some cases hostile)Recent trend recognizes validity of EU regime

ConclusionsAs in Germany and Italy, situation uncertain

Procedural Law

The Preliminary Ruling (Art. 234)What is it?

Mechanism which allows Member State courts to refer EU law questions to the ECJSee, e.g., many of the cases in the earlier competency/supremacy sectionsExtremely broad scope of referrals (see excerpt on p. 143)Note that referrals do not remove authority of national courts, which must eventually apply ECJ decision to facts of caseGoals

Uniform interpretation and application of EU lawPromote judicial equality and cooperation

The Preliminary Ruling (Art. 234)Who can use it?

The ECJ – not national authorities – determines whether an institution can make a referralECJ has accepted referrals from a wide range of institutions, not just classic “courts” (e.g., arbitration panels, insurance officers, etc.)

E.g., Vaassen (1965)(ECJ approves referral from arbitration tribunal of private mine retirement fund)E.g., Nordsee (1981)(ECJ rejects referral from appointed arbitration body because there was no involvement of national authorities)

Generally limited to highest court of caseCosta v. ENEL (1964)Can be complex question, depending on national procedural rules

Key factor: involvement of national authorities

The Preliminary Ruling (Art. 234)What can they refer?

Art. 234 simply states that a referral can be made; it contains very little guidance about the types of questions that are relevant and admissibleAs volume increased, ECJ issued guidelinesGenerally okay

Questions about treaty interpretations or EU rulesQuestions that are clear, succinct and complete

Generally problematicQuestions about the validity of national lawsHypothetical questionsQuestions irrelevant to underlying disputeQuestions previously answered (note: specific procedure to follow)

The Preliminary Ruling (Art. 234)What can they refer? (continued)

Sample rejected referencesMattheus (1978)(referral rejected because not justiciable due in part to upcoming accession of Member States relevant to the case)Telemarsicabruzzo (1990)(referral rejected because facts and questions insufficiently clear)Meilicke (1991)(referral rejected because insufficient information provided)Foglia (1980)(referral rejected because inquiry sought abstract/advisory opinion that would not contribute to resolution of a case)

Sample accepted referencesVinal (1980)(ECJ accepted referral about alcohol taxation issues)Dzodzi (1988)(ECJ accepted referral about national free movement question in an effort to promote uniformity of EU law)

As volume increased, ECJ issued guidelines

The Preliminary Ruling (Art. 234)Do they have to use it?

Discretion or obligation?“may” – if necessary to reach a decision“shall” – if there is no subsequent remedy under national law

ECJ vests national courts with broad discretionRheinmuhlen-Dusseldorf (1974)(ECJ rules that national courts have discretion to refer even absent specific national procedure provisions)

The Preliminary Ruling (Art. 234)When can they use it?

Article 234 silent about timingECJ preference

After facts established and questions of national law resolved (Irish Creamery Milk Suppliers (1980)After both parties’ views heard by the national court (ECJ guidelines, #19)

In the end, national courts have broad discretion

The Preliminary Ruling (Art. 234)How can courts get out of using it?

Follow previous rulingsECJ has held that referrals not necessary when question already addressed and correct application so obvious as to leave no scope for doubtMirrors “the answer is obvious” doctrine followed by some Member States in pastIn some cases expanded to allow national courts to decide for themselves validity of EU law

Some commentators concernedLittle clear guidance about appropriate useSome national courts not following strict requirements

The Preliminary Ruling (Art. 234)What is the impact of its use?

Impact on the ECJNo system of judicial precedent in the EUNonetheless, ECJ clearly values consistencyCourt therefore tends to follow its referral guidance in subsequent matters

Impact on national courtsArt. 234 rulings are mandatory (i.e., not advisory)National courts required to send final decisions to ECJDespite a few “hot” cases, most courts generally comply

The Preliminary Ruling (Art. 234)What does this mean for the future?

Increased development and use of “precedent”More hierarchical approach to pan-European judiciaryExpanded enforcement of EU law at national levelCalls for reform

Limiting referralsExpanding the role of national courtsEstablishing new courts