03/10/17 European Constitutional Law Lecture 1

Course Overview

EU law is a hybrid of national and international law

Assessment:

Semester 1 Blog Answer (short essay, chose from 3 titles, 1000 words due 11th
December, worth 20%)

Semester 2 Coursework question. We are advocate general (independent judge of the court
of justice) whom gives his opinion on cases before other judges see the case. In this
coursework you are the advocate general and help solve the case. Worth 30%.

Semester 3 Combined examination (it is an open book exam). Worth 50%.

As I mentioned this morning, we have a combined assessment, which bring together both
European Constitutional Law and European Internal Market Law. This semester in European
Constitutional Law we will have a blog assignment- an essay of up to 1000 words. The essay
titles will be available in early November and the deadline for submission is Monday 11th
December. The essay is worth 20% of the combined assessment for both modules. In
Internal Market Law in semester 2 we'll have a coursework assignment in mid semester
(worth 30% of the combined module mark) and an open book exam at the end of the
semester that covers both modules (worth 50% of the combined module mark).

How to find EU cases:

https://europa.eu/european-union/index_en
EU legislation and case law on the European Union (Euro-Lex)
http://eur-lex.europa.eu/homepage.html
European Court of Justice (Curia)
https://curia.europa.eu/

How to read EU cases;

For cases, when each case is received in the Court office in Luxembourg it is given a
reference number (such as case Van Gend en Loos) It was case number 26 registered in the
Court Office in 1962. Hence it has the case reference 26/62.

However an exception from 1987 the EU set up a second Court to help the Court of Justice. It
was initially known as the Court of First Instance, but is now called the General Court. To
help distinguish between cases from both courts an amendment was made to the
registration system:

The prefix 'C' denotes that the main court, the Court of Justice, heard the case. For
example searching the reference C-188/89 will bring up the case Foster v British
Gas.

The prefix 'T' denotes that the General Court heard the case. For example, searching
the reference T-585/93 will bring up the case Stichting Greenpeace v Commission.

Finally the letter 'P' after a case reference number identifies it as a case that was
appealed from the General Court to the Court of Justice on a point of law. For
example, the case C-394/15P Dalli v Commission.
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EU legislation also uses reference numbers, for example for the 1992 Directive on the
Conservation of Wild Habitats. The reference number of this is 1992/43. Again, denoting
that it was the 43 directive adopted in 1992.

Regulations, another type of EU legislation, also use a reference number- but here the
number precedes the year- for example the reference for the 2005 regulation on the
protection of animals in transport is 1/2005- the first regulation adopted in 2005.

Extended Reading:

Union Law vs. National Law: Union law is accepted as having supremacy over the law of
member states, but not all member states share the ECJ's analysis of why EU law takes
precedence over national law when there is a conflict.

The relationship with Union law and national law discussed from the union side, with rules
considered were what the European Court thinks member states accepted when they signed
the EU treaties. However this reading discusses how member states have responded -
discussing the relationship between the European Court and Member States regarding union
law.
1. Monist countries have provisions in their legal system that means when there is
conflict with national law, the treaty rules supreme (the Netherlands).
2. Some member states transfer powers to the union.
3. A further possibility, as seen in Ireland, is to amend the constitution to provide for
Union membership. In Ireland the constitution was amended to provide nothing in it
would prevent Union measures from having the force of law in Ireland.

Monism and Dualism in International Law:

In States with a monist system international law does not need to be translated
into national law. The act of ratifying an international treaty immediately
incorporates that international law into national law. Monists accept that the internal
and international legal systems form a unity. The act of ratifying an international treaty
immediately incorporates the law into national law; and customary international law is
treated as part of national law as well. International law can be directly applied by a national
judge, and can be directly invoked by citizens, just as if it were national law.

For States with a dualist system, international law is not directly applicable
domestically. It must first be translated into national legislation before the national
courts can apply it. Dualists emphasize the difference between national and international
law, and require the translation of the latter into the former. According to dualists, national
judges never apply international law, only international law that has been translated into
national law.

Belgium:
Belgiums constitution does not state that international treaties have effect and
override national law also unclear whether monist or dualist theory of
international law.
MINISTER FOR ECONOMIC AFFAIRS v. SA FROMAGERIE FRANCO-SUISSE LE SKI The court
declared that Belgium was a monist country. This case saw the European Court
declare these duties to be contrary to the treaties.
Dissimilar to the UK because the UK is in fact a dualist system
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Germany:
After WW2 German constitution gave more protection to human rights creating
problems with Union law if they are contrary to fundamental human rights (as
declared fundamental in Germany).
Seen in the case: Internationale Handelsgesellschaft mbH v Einfuhr- und
Vorratsstelle fr Getreide und Futtermittel (Sollange 1), which concerned the
conflict of law between a national legal system and European Union law. Plaintiff
argued that decision of the EVGF should be overturned due to the fact the
regulations were contrary to fundamental human rights in the German constitution.
Bundesverfassungsgericht (Federal constitutional court GER) considered
relationship between German constitutional law and union law; taking the view:
Union law is neither a component part of the national legal system nor
international law instead forming an independent system of law. The two legal
systems are independent. Dualist.
Constitutional Court also pointed out Union lacked a directly elected parliament and
lacked a codified catalogue of fundamental rights compared to GER Constitution.
By 1986 Constitutional Court agreed that the protection of human rights in Union
had developed sufficiently to meet GER constitutional requirements. Seen in the,
Wnsche Handelsgesellschaft (Sollange 2), Constitutional Court stated that
providing general level of protection of HR remained the same it no longer
entertained proceedings to test union measures against GER Constitution
(Grundgesetz)
Additionally, amendment to the constitution in 1992 help make easier provisions for
Germanys EU membership.

Problems have been seen with the Germany Federal Tax Court refusing to accept the
affects of directives (Germany have five federal supreme courts, one for tax, labour,
social security and administrative that are independent from one another. Apart
from Constitutional matters whereby all courts are subject to rulings from Federal
Constitutional Court)
Problem arose regarding direct effects of directives arose when Germany were slow
in implementing a EU directive dealing with VAT; these provisions gave tax
exemptions not recognized in German law. The Federal Tax Court in 1981 and 1985
ruled that taxpayers couldnt claim exemption of the directive.
In the 1987 Kloppenburg case, Federal Tax Court maintained lower tax court
decision. Its reasons were that Union Law could only have effect in Germany only to
the extent that Germany had transferred legislative power to the Union.
According to Article 288 TFEU, directives leave member states free to choose form
and methods of giving them effect to have force the law in member states. So the
Federal Tax Court concluded directives could never have direct effective. This
conclusion was supported by cases: Conseil dEtat in the Cohn-Bendit case and the
travaux prepatories to the EEC Treaty (the German government had said a directive
cannot directly bind an individual in the absence of national legislation.) Article 267
TFEU is limited to Union Law and it doesnt have the power to determine which law
national courts should apply.
However this matter didnt end there, Kloppenburg brought the case to the Federal
Constitutional Court who ruled that the Federal Tax Court acted unconstitutionally
because it didnt make a second reference or follow ruling of the European Court.
The Federal Court violated Article 267 TFEU, as it was obliged to make a reference if
its judgment is a question of union law. Nobody shall be deprived of a lawful judge,
the Constutional Court was already declared a lawful judge in Wnsche
Handelsgesellschaft (Sollange 2) the Federal Tax Court deprived Kloppenburg of
her lawful judge therefore their decision was annulled.
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Finally, Brunner v European Union Treaty asked the Constitutional Court to rule on
the constitutionality of Germanys ratification of the Treaty on European Union:
Constitution said it would continue to guarantee protection of basic rights against
the Union but in co-operation with the European Court (Court will have job of
reviewing union measures whilst constitutional court has a more restricted role).
Constitutional Court classifies the legal nature of the Union as a Union of states
not a state based on a single European nation. Therefore the Union gets its authority
from those member states and can have no greater powers than those in it. Germany
remains a sovereign state; members are masters of the treaties.
The Constitutional Court reserved itself the power of reviewing Union legislation to
ensure that it stays within the bounds of the powers conferred on the union.
Also limits to the extent the European Court can extend the powers of the Union
through their judgments. Therefore, the bundesverfassungsgericht is the arbiter,
over the European Court, on the division of power between Union and member
states. Other members agree, bundesverfassungsgericht first to state this.

Denmark:
Danish Maastricht decision, Carlsen v. Rasmussen, is somewhat similar to the
German one it also began with legal action from a group of citizens to challenge
ratification of the Treaty on the European Union.
Provisions of the Danish Constitution permitting Denmarks membership of the
Union is section 20 stating powers may be delegated to an authority to an extent
specified by statute a requirement preventing delegation of unlimited powers.
Appellants argued that the powers delegated to the Union under the Treaty on the
European Union were too ill defined to satisfy requirements of section 20
particularly the open-ended nature of the councils legislative power and also the
law-making activities of the European Court.
The Supreme Court rejected these arguments and could ratify the treaties on the
grounds:
1. Section 20 didnt permit an international organization (Union) to be given
power to adopt legal acts or to make decisions contrary to Danish constitution.
2. It made it clear that an international organization cannot be permitted to
determine to itself what its powers were.
The Danish Supreme Court discussed whether these two had been met. EU treaties
were based on the principle of conferral, Union given only the powers that the
treaties give it.
Article 352 TFEU; the Supreme Court gives a restrictive interpretation to this
provision, partly because of a passage from the European Courts judgment in the
ECHR case. If article 352 was applied no more widely than this, the requirements of
section 20 of the Danish constitution have been satisfied, but if an attempt to apply
on a wider basis the Danish government would be obliged to veto.
Additionally, the Supreme Court implied it would allow the European Court a great
deal of latitude, prepared to accept the European Courts law making activities
providing it remained within the scope of EU treaties.
The Supreme Court recognizes that the European Court had been given jurisdiction
to rule on the validity of Union acts, as a result, Danish courts cannot declare Union
acts inapplicable in Denmark without first referring the question of the validity of
the European court.
This judgment allows Denmark to give affect to Union law, but nevertheless makes
clear that the Danish courts retain the power to ensure the Union does not go
beyond the Treaties.
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France:
Article 55 of the French Constitution states that international treaties have superior
authority to that of any national law.
Two separate court systems in France ordinary (judicial) civil and criminal
matters, and the administrative courts, which hear cases when the administration is
subject to challenge.
Two highest courts are, Cour De Cassation (judicial) and Conseil dEtat
(administrative) both courts have conflicting traditions when it comes to Union
Law; former is more willing to meet demands than other (judicial).
Obstacles have been the traditional reluctance to question the validity of statute;
French courts cannot review statute (lois) and reluctance of judicial courts to query
acts of the administration legislative or executive. Particularly making it hard to
refuse to apply French statute (loi) when it conflicts Union law.
Leading case in Cour De Cassation was: Directur General des Dounas v. Societe
Vabre & Societe Weigel, decided in 1975. Vabre imported coffee and forced to pay
custom duties under French statue of 1966. Vabre claimed he had been
discriminated because in France tax rate was lower. Paris Cour dappel upheld their
claim on the grounds EU Treaties prevailed over statute.
It was then argued that the Paris Cour dAppel had given itself the right to determine
the constitutionality of a statute and this it couldnt do and also pointed out in
Article 55 a treaty is only applicable if both countries apply to it; the Netherlands
hadnt. Cour De Cassation rejected these arguments and upheld the judgment. The
Cour De Cassation replied that the Union Treaties had created a separate legal order
that WAS binding on the national courts.
Secondly the argument was rejected because on the grounds of Article 259 TFEU it
grants each Member state the right to bring legal proceedings in the European Court
against any other Member state, which fails to apply the Treaty.
This judgment help put Union law on a secure footing in France. Additionally in
Kempis v Geldof, Cour De Cassation held that Treaties also prevailed over earlier
French legislation. These rulings firmly established the supremacy of Union law as
far as the judicial courts were concerned.

In the administrative courts however, the story was rather different. Over a
considerably period the Counseil dEtat and the tribunaux administratifs had been
less willing to find acceptable solutions. Seen in the Semoules case, decided in 1968,
the Conseil refused to accept the supremacy of a Union regulation over a French
statue passed subsequent to the regulation.
The Conseil dEtat delivered a surprising judgment: it allowed the appeal on the
ground that, under the EU treaties, directives cannot be invoked by individuals in
the national courts in order to challenge an individual administrative decision.
The doctrine of direct effect of directives had been firmly established by the date of
the Cohn-Bendit judgment and the Counseil was perfectly aware of it. This judgment
was a clear and deliberate act of defiance: by rejecting the authority of the European
Court even where it could be said to have gone beyond the treaties the Counseil
dEtat had struck a blow at the foundations of the union.
These decisions followed by the Rothmans and Arizona Tobacco cases arising from
the sale of tobacco in France, which was previously a state monopoly. In order to
meet the requirements of Union law, a statute, law of 24 May 1976 abolished this
monopoly in so far as it related to the importation of tobacco products from other
Union countries. Section 6 of this law with Article 10 of a Decree of 11 December
1976 provided that the retail price of any tobacco product could be fixed by the
minister of Finance. The companies in question (importers from other union
countries) asked the minister to permit an increase in the price of products, this
request was not granted and brought proceedings for judicial review on the decision
of refusal they argued that the fixing of tobacco prices from other member
importers was contrary to union directive adopted in 1972. The Conseil dEtat held
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in favor of the applicants, section 6 of the law could not be applied therefore article
10 lacked legal foundation. The decision of the refusal was void and annulled so
charges were paid.
These decisions were remarkable because:
1. The Counseil dEtat accepted the primacy of a directive over a statute.
2. They could be regarded as marking the end to the Cohn-Bendit doctrine.
3. They showed that the Counseil dEtat was willing to award damages to applicants
who had suffered loss as a result of government action that conflicted with Union
law. Similar to the Francovich v Italy case.

The position of Union law in France was put into new perspective by amendments to
the French constitution adopted in order to permit France to ratify the Treaty on
European Union. They were made necessary by a judgment of the Counseil
Constitutionnel, which declared certain provisions of the Treaty on European Union
incompatible with the French Constitution. With the most important amendment the
addition of the Constitution of Title XIV, which made provision for the French
membership of the European Union.

Poland:
Poland has a democratic Constitution, having been a former Slavic-bloc country,
with the Constitution providing for a Constitutional Court, which has the power to
rule on the constitutionality of Polish legislation and government decisions. Acting
under this power it has given a number of rulings of relevance to the European
Union.
Analysis of Union Law and Polish Law can be seen in the 11 May 2005 decision on
the constitutionality of Polands membership if the EU.
Although it held that Polands membership constitutional, the constitutional court
made clear that the Polish Constitution is supreme law in Poland.
Union law has effect in Poland only by virtue of and how it is permitted by the Polish
constitution. However saying this, the Constitution requires Poland to respect
provisions of International law binding on Poland.
If conflict arose over between Union Law and the Polish constitution, giving Union
Law precedent over the Polish constitution could not solve it. Poland could resolve
this by:
1. Amend the constitution
2. The Union to amend the relevant union provision
3. Poland to withdraw from the Union

In a judgment given 27 April 2005, the Constitutional Court held that Polish
legislation enacted to give effect to the EU framework decision on the European
Arrest Warrant was invalid. It ruled that the legislation was contrary to the
constitutional provision prohibiting the extraction of Polish citizens. However it
suspended the effects of the decision for 18 months to give the government the
opportunity to amend the constitution.
Showing the constitutional court is sensitive to the needs of the EU and will do what
it can, within its limits of what is constitutionally possible to ensure Poland meets
her Union obligations.

United Kingdom:
Since the United Kingdom has a largely unwritten constitution, provision for
membership of the European Union could not be made by means of a constitutional
amendment. Moreover, the attitude to international law is strictly dualist: there is no
general rule of law allowing treaties to take effect in the internal legal system. So this
route would have no effect given to EU treaties. These problems were overcome by
means of a special act of parliament however none of this affects the principle of
parliamentary sovereignty fundamental doctrine of the British constitution.
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Conclusion

There is clear divergence between the European Court and the courts of the member states
on which Union law is to be enforced by the Member States.

For member state courts, their national constitution is the supreme legal instrument. Its
validity is unquestionable (axiomatic) and therefore cannot be questioned by another legal
instrument (Union law). They therefore look at Union law in relation to their national
constitution applying it to the extent their constitution allows for provisions.

Conversely, the European Court starts with the EU treaties; their validity is unquestionable
(axiomatic).

Difference between the two could be problematic, however the two sides have ensured that
the two work together. Member-states courts in general interpreted their law and
Constitutions so as to meet with Union requirements. While the European Court has been
careful in moderation of its demands when it would appear likely national courts would
reject them. Even creating new rules of Union Laws to ensure this peace. Modus vivendi.

Extended Reading 2:

EU Directive - A directive is a legal act of the European Union, which requires member
states to achieve a particular result without dictating the means of achieving that result. It
can be distinguished from regulations which are self-executing and do not require any
implementing measures.

State Liability
This reading discusses the extent the European Court of Justice (to make EC law
effective) extend their mechanisms to which individuals could seek rights accessed
from EC law to national courts. This helps protects their rights and ensures
enforcement of community law.
Perhaps the most important development has been the creation of state liability
thanks to the Francovich v Italy case (C-6 9/90). This case developed direct effect. It
enabled an individual, before his national court, to seek a remedy for losses suffered
due to a member state failing to implement or correctly apply EC law.
This reading then considers the development of the state liability doctrine; outline
the development, its scope and relation to other provisions and whether state
liability can be extended from Community law to other pillars.

Principle of State Liability under Francovich v Italy

There are now 3 principles in the enforcement of directives, direct, indirect and the
principle of state liability created after the Francovich case.
Here in Francovich v Italy, the claimants (group of ex-employers) were seeking
owed wages following their employers insolvency. With their claim based on
Directive 80/987, which required member states to provide a guarantee fund to
ensure the payment of employers owed wages in the event of insolvency. So they
brought their claim against the state.
The Court had held that, where a state had failed to implement an EC directive it was
obliged to compensate individuals for damaged suffered as a result of a failure to
implement the directive if certain conditions satisfied:
1. The directive involved rights conferred on individuals
2. The content of those rights could be identified on the basis of the
provisions of the directive and
3. There was a casual link between the states failure and the damage
suffered by a person affected
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Francovich told us:

1. Individuals seeking compensation as a result of practices inconsistent with EC
directives may proceed against the state. (No need to rely on direct or indirect
effects)
2. Responsibility for the non-implementation of the directive will be placed not on
the employer public or private but instead on shoulders of the state.
3. Rather than changing law it provides compensation for all member states failing
to do so, and protects both individual rights and also creates an indirect
mechanism for enforcement of community law.

Scope of the principle

Although expressed in terms of state liability for non implementation of a directive,
Francovich laid down a wider principle liability for all breaches of Community law
for which the state is responsible.