The Status of EU Law - Essay Example

? Report to the Board of directors of Multistripe Ltd (UK) (a) The status of EU law in Rubra in view of the ruling by the Supreme Court in Rubra The question is on the authority of EU law. Sovereignty is vested in the treaties and this places the ultimate authority in the treaties and makes the Court of Justice the ultimate arbiter on the meaning and consequences of this authority. There are four doctrines emanating from the sovereignty of EU Law: (a) EU law takes precedence over all national law, including national constitutions. (b) EU law alone should determine the quality of legal authority of different norms. The Court of Justice should determine when there is a conflict between EU law and national law and what the consequences are of such a conflict. EU sets out three types of relationships between member states and the EU, namely: exclusive competences, shared competences, and fields in which EU law cannot exclude national legislatures from making law. (Damian Chalmers et al.p.184-5) The primacy principle applies here and it was first proclaimed in the case of Costa. EU law takes precedence over national law. The Costa v ENEL case was concerned with the nationalisation of the Italian electricity industry, whose bills Costa refused to pay in protest since he said its creation breached EU law. The Italian Constitutional court said that subscription to the EU was an ordinary law, subject, like any other, to repeal. The ECJ ruling overturned this, saying (1) that upon the EEC Treaty coming into force a “new legal order” came to exist, which caused EU law to enter into domestic law and that domestic courts are “bound to enforce” it. And (2) that “transfer from [member states’] domestic legal systems to a Community legal system” meant a loss of sovereignty and hence any subsequent act made in breach of EU law would be ineffective, since EU law would prevail. It was held by the ECJ: To allow national laws to be effective even when they conflict with EU law would frustrate the aim of creating a truly common market. It is implied that EU law is supreme over national law: otherwise it would be meaningless to say that regulations are binding and directly applicable…as national legislation could just nullify its effects. Law stemming from the treaty is an “independent source of law”. This ruling established that member states couldn’t deviate from EC treaties without prior permission. It also established that national high courts couldn’t determine incompatibility of national and EU law without consulting ECJ. This principle was neatly illustrated in Internationale Handelsgesellschaft v. Einfur in which the Court ruled that EU law takes precedence over all forms of national law, including national constitutional 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” Article 288 TFEU provides: To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force. Article 19 TEU provides: The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of this Treaty the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law. It follows that the law stemming from the Treaty cannot be overridden by domestic legal provisions, however framed, without the legal basis of the EU being called into question. In short, where there is a conflict between domestic law and EU law the consequences are as follows: 1. Where EU law is considered to have a jurisdictional monopoly over a field, national laws have to be enacted with the authorization of EU law 2. Where there is a shared jurisdiction over a policy field, national measures can be adopted but will be set aside if they conflict with EU law 3. Member states are free to adopt national measures as long as they do not obstruct the effectiveness of EU policies. ( Damian Chalmers et al.p.206) It follows that the Supreme Court of Rubra cannot give supremacy to Rubra law over EU law. It is fallacious for the Supreme Court of Rubria to claim that ‘it reserves the right to declare invalid any laws adopted by the EU which conflict with Rubran law.’ (a) Article 34 TFEU prohibits restrictions on the import of goods from other member states. The umbrella notion of a restriction on imports is provided in the case of Dassonville. In this case a very broad scope to Article 34 applying to any measure which impedes imports, however that effect is achieved, was established. It can be argued that seizing of Multistripe consignment of posters is a measure impeding imports to Albania. The purpose of seizure was to check if any of the paints used were toxic and this looks legitimate on the face of it. Although the Albanian authorities would argue that these product rules apply equally to imports and domestic products, they are nevertheless restrictions on imports. (Cassis de Dijon) In practice it is extremely difficult to export to other Member States if one has to amend products to adapt to the different rules in each state. The Cassis de Dijon case created a principle of ‘mutual recognition’ of the adequacy of other Member States laws. The principle established that goods should only be regulated in their country of production. From this reasoning it follows that the Albanian authorities ought to have trusted and recognised that UK laws on the production of posters were adequate. ‘The principles of country of origin regulation and mutual recognition are now applied throughout the free movement law.’ (Damian Chalmers et al.p.745) Derogation from mutual recognition is only possible for legitimate and proportionate reasons. Seizing of the posters to check for toxins does not sound legitimate and proportionate. (b) Article 34 TFEU provides that: Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. (Emphasis added) ‘Measures of equivalent effect’ ( MEQRs), result in imports being reduced just as if there was in fact an explicit limit.(Damian Chalmers et al.p.746) If posters could not be sold because they do not satisfy standards for paper quality the same reasoning in Cassis de Dijon and Dassonville can be applied here. Measures concerning the way products are produced or packaged (physical specifications) are at stake here. Standards of paper quality arguably fall under physical specifications. Whether or not these measures contravene Article 34 was dealt with in Cassis de Dijon. In Cassis de Dijon it was held that the application of product standards to imports hinders their importation; therefore such rules, applied to imports, are MEQRs. The existence of product standards per se is not the problem here but their application to products imported from other Member States. The court enunciated the principle of mutual recognition and found that if products comply with the laws of the Member State where they are produced, then there is no reason why they should not be sold in all other Member States. From this reasoning it follows that if the poster’s quality of Multistripe complied with the laws of the UK, Albania should be able to recognise them. What is good for UK is good enough for Albania. The court, however, conceded that sometimes there is need to derogate from this general principle if it can be shown that it is necessary to protect some public interest objective such as public health or consumer protection. From the facts of Multistripe it doesn’t seem to be the case where derogation is permitted. (d) This concerns the idea of ‘selling arrangements’ as discussed in Keck. Selling arrangements are rules which regulate the way products are sold. Examples are advertising, as in the facts of the given problem, and rules on shop opening times. In Keck it was held that these are generally not restrictions on imports, as long as do not have a greater effect on imports than on domestic products. It follows that states may regulate selling arrangements however they like, so long as the effect on imports and domestic products is the same. The fundamental question here is whether a prohibition on internet adverts in the facts of the current problem has a greater effect on imports than on domestic products. The other issue is whether the prohibition is necessary for some legitimate public interest objective and is proportionate. It seems that the prohibition greatly affects imports as they are not known locally in Albania. Sales of imports from the UK will be reduced in the wake of that prohibition. Was the prohibition necessary, legitimate and proportionate? It sounds legitimate to protect children from pornography but Multistripe products were not pornographic which means that the measure may be disproportionate. In Konsumentombudsmannen v Gourmet International Products the absence of advertising prevented foreign products from achieving recognition when compared to domestic products, and thus constituted obstacle to the free movement of goods. It follows that an absolute ban on advertising is more likely to harm goods from other states unless justified. The present case does not appear to be an absolute banning of advertising as it touches on internet advertising only. Multistripe is advised to consider other forms of advertising rather than insist on internet advertising. References Texts Damian Chalmers, Gareth Davies & Giorgio Monti, European Union Law Cases and Materials 2nd Ed, Cambridge University Press 2010 Cases Costa v. ENEL [1964] ECR 585 Internationale Handelsgesellschaft [1970] ECR 1125 Keck and Mithouard [1993] ECR 1-6097 Procureur du Roi v.Benoit and Gustave Dassonville [1974] ECR 837 Rewe-Zentral AG v. Bundesmonopolverwaltung fur Branntwein (Cassis de Dijon) [1979] ECR 649 Konsumentombudsmannen v Gourmet International Products [2001] ECR I-1795 Treaties, Instruments and Legislation Lisbon Treaty on the Functioning of the European Union (TFEU) Read More