Supremacy of the European Union - Essay Example

This paper provides an analysis on the importance of the Supremacy of the European Union Laws, in helping the EU community to achieve its objectives. The European Union is a political institution, with its own legislative and administrative body. The intention of this Union is to promote the economic development of its member states, and create a single constitution that will guide the affairs of the Union. Despite the existence of the constitution, it has not been ratified by member states; hence it is the EU treaty, and directives established by it, that govern the relationships amongst member states1. This paper takes a stand that for the EU to achieve success in meeting its objectives, its laws and directives have to be supreme over the laws and directives of member states. The principles of the supremacy of the EU denote that, the laws of the European Union are supreme when compared to the laws of the member states. The European Court of Justice introduced this doctrine in 1964, however, to date; it is still controversial with some states arguing against its adoption. This is because of the concept of sovereignty, which allows member states to have a right of determining their laws, without influence from foreign powers. However, there are a number of reasons given, in support of the principles of the EU law2. One of these principles is that, there would be uneven application of laws, if this principle does not exist. This is unacceptable within the European Union, mainly because it has the capability of threatening and compromising the legal system of the European Union. Another reason is based on the doctrines of the direct effect which was created by the European Union Court of Justice. This doctrine denotes that certain provisions of the European Laws are directly applicable to the national laws of member states, without any other enactments3. This is beneficial to the member states, mainly because it creates uniformity in the application of laws, hence promoting the objectives and mission of the European Union. The concept or principle of the EU supremacy has never been expressly identified in any of the treaties that form the European Union. This concept was developed by the European Court of Justice through a series of very important rulings and judgments. However, the most important case responsible for introducing this concept of supremacy of EU laws is the case of Costa vs. ENEL4. According to this case, the judges denoted that a directly applicable, secondary or primary European law will prevail over the national law, even if, the law under consideration is a breach of the constitution of the country under consideration. Furthermore, in instances where a conflict arises, the national judge has to ignore the national laws, and apply the laws of the European Union aimed at solving the problem under consideration5. Furthermore, it is only the European Court of Justice that has the power and ability of annulling the European Laws, by using the European Treaties as a point of reference. Through this judgment, the European Court of Justice was able to create the doctrine of Supremacy of European Laws. One of the major reasons given for the adoption of this principle is the special nature of the European Union treaty. This treaty was able to create a new legal system, whereby the provisions of the treaty, were part and parcel of the national laws of the member states. This is an indication that the laws of the EU determines the manner which states relate which each other, and their internal governance system. This is a breach of the sovereignty of a member state, and sovereignty is a concept that defines a state. Despite the existence of this argument, a number of scholars supports this doctrine of the Supremacy of the European Union Laws6. This is because the executive force of the laws of the European community cannot be different. This is because different laws would jeopardize the attainment of the mission and objectives of the treaty under consideration. The founders of this treaty realized the dangers of inconsistent and different laws in the member states forming the European Union, hence the development of the concept of the direct effect. This is one of the major values and principles of the European Union, without which, the Union would be unable to meet its objectives7. The 2004 case of Mangold better explains how this concept of direct effect is applicable in all the domestic laws of member states. Under this case, the ECJ denoted that directive 2000/78/EC was able to preclude Germany from increasing the statutory age discrimination, through a reduction of a relevant threshold for fixed term contracts, without an objective reason. Furthermore, the ECJ referred to article number 18 (2) of the 2000/78/EC directive which denotes that member states are obligated to realize an equal treatment of people in employment, regardless of their age. The ability of the court to review and make a ruling in this case, is an indication that the doctrine of Supremacy is applicable in the European Union. Furthermore, the decision by the courts to support the position of the ECJ, by denoting that the laws were contradicting directive 2000/78/EC, is an indication that there is a need of uniform laws aimed at protecting the rights of people within the European Union8. Different laws in this regard would frustrate the efforts of the European Union in ensuring that there is equality in the treatment of individuals, within the European Union. In the 1978, case of Simmenthal, the judges were able to denote that any national legal, administrative, judicial and legislative practice that might impair the effectiveness of the European Community Law are null and void9. In McCarthy vs. Smith, the court identifies the European Union treaty as an aid, as well as an overriding force. Based on these principles and laws, we are able to denote that the laws of the European Union Community are supreme to the domestic laws. In defending the supremacy of the European Union treaty, Federico explains that it is justifiable because the provisions of the treaty are signed after a series of negotiations, offers, and counter offers10. Based on this fact, the application of laws that are not uniform will frustrate the application and implementation of agreements contained in the European Union treaty. This was the major argument in the Mangold case, where the courts sought to create a uniform law that will protect the rights of people across the member states of the European Union. Furthermore, the issue of supremacy is touched in the case of Van Gend vs. Netherlands. Under this case, the European Court of Justice denoted that the European Union Treaty was able to create a new legal system in the international law, which would benefit the state, but they have to limit their sovereign rights. The court further denoted that the states have voluntarily transferred their sovereignty to the institutions of the European Community. This case further denoted that the articles of the European Union treaty are applicable to the national courts, and they are supreme to the laws of the land. There are five major reasons why the European Court of Justice was able to insist of this doctrine of Supremacy. One important reason advanced for this case is that it creates a sovereign European Union community11. The European Union is a political community, and it has an intention of creating a constitution that is applicable to the entire community. It is important to explain that the constitution exists, but it has not been ratified by the member states. In-fact, article I/6 of the European Union treaty explains that the laws adopted and created by the European Union shall have primacy, over all the national laws of the member states. Nlau explains that the intention of this provision is to create a supreme and sovereign European Union community12. It is difficult to achieve this objective if separate laws that contradict the treaties of the Union are created and applied by the member states. By being a member of the European Union, the state under consideration had transferred some of their sovereign rights to the community. This is a concept or belief that is held by Lord Bridge in the case of R vs. Secretary of State for transportation. Lord Bridge argues that by the ratification of the treaty of European Union, parliament passed some of the sovereign rights of United Kingdom, to the European Union13. Based on this fact, the national courts had a right to remove acts of parliament that were contradicting the laws of the European Union. Woods and Watson explain that in a bid to create a common market, there was a need of applying a uniform European Union law within the community14. One of the major objectives of the European Union is to establish a common market. It is virtually impossible for this to be achieved if; there are different rules that guide commerce in the member states. Based on this fact therefore, there is a need of harmonizing the different commerce and business laws in member states, so that they may not contradict the established laws by the European Union. Craig and De Burca further asserts that a supreme European Union law would ensure that member states are not able to create laws aimed at pursuing their own self interest15. In the view of Schoitheete , the European Union treaty is formed after a series of negotiations, which involves offers and counter offers, with the intention of finding a compromise that would benefit the entire community16. A member state that enacts laws, which contradict the provisions of the EU treaty, goes against this compromise, and it aims at pursuing its own self-interest. This is unacceptable, and unwarranted, mainly because it would compromise the legitimacy of the European Union, and the laws enacted by it. It is therefore an acceptable practice for the laws of the EU to be supreme over the laws of the member states. Despite the importance of the Supremacy of the EU laws, over that of member states, this concept has gained resistance from these states. It has been difficult to ratify the provisions of this treaty to the constitution of the national state, and their courts have found it difficult to respect these provisions. However, the major point of contention is whether their exist areas in which the member states of the European Union cannot legislate their own laws, and they must defer it, to the European Union. On most occasions, the national courts of member states normally apply the supremacy of the EU laws, based on the provisions of the national laws, as opposed to the rulings of the European Court of Justice17. This is because majority of the courts belonging to member states regard themselves as having jurisdiction on issues that affect their national and domestic interests. This is a concept referred to as Kompetenz-Kompetenz. A good example of a country that finds it hard to implement the supremacy of EU laws over its domestic laws is the United Kingdom. This is despite the ruling by the House of Lords, on R vs. Secretary of State for transportation, supporting the Supremacy of the EU law, over its domestic laws18. The reason why the United Kingdom fails to accept the Supremacy of parliament is based on the concept of parliamentary sovereignty. This principle denotes that parliament has the capability of doing anything, other than binding itself to future uncertainties. The UK membership to the European Union has not affected the sovereignty of the British parliament. This is despite the existence of the 1972 European Communities Act, which allowed for the incorporation of EU laws into the British legal system. However, it is important to explain that the ECA 19722 is an important legislation that tried to regulate the kind of laws passed by the British parliament19. This law denotes that any law passed by parliament, should not contradict the provisions of the EU treaty. This was a movement towards the recognition of the supremacy of the EU laws and policies. In Macarthy vs. Smith, Lord Denning explains that the treaty should be regarded as supreme, and an aid to the British laws. However, Duke vs. GEC Reliance Systems explains that the principles of Macarthy are not applicable to domestic laws that are not compatible with the provisions of the laws of the EU. In the case of Duke vs. GEC reliance, the Von Colson principle was adopted, which required that all domestic laws should be interpreted, independently, and they must not be influenced by the laws or authority of the European Union20. Cases such as Pickstone vs. Freeman, Lister vs. Forth Dry Dock all agree on the supremacy of domestic laws, as opposed to that of the EU. However, they use the purposive approach, in ensuring that the domestic laws under consideration are compatible with the laws of the European Union21. This provision is further best explained in the case of Lister vs. Forth Dry Dock, where the court denoted parliament can pass a legislation whose purpose is to implement an identified provision of the laws of the European Community. These case laws and statutes therefore point to the notion that the people of UK still view its parliament as sovereign, irrespective of the judgments of thee ECJ, regarding the sovereignty of the European Union laws22. In conclusion European Union laws have to be supreme over the laws of its member states, for it to achieve in meeting its own objectives. For instance, one of the objectives of the European Union is to create a common market, for purposes of promoting and protecting its market. It is impossible to achieve this objective, if member states have different laws that seek to protect their markets. Furthermore, the European Union has an objective of creating a political federation, governed by one constitution. This would mean that the member states will have to limit their sovereignty. This is impossible to achieve with different laws that govern the operation and interpretation of laws within the European Union. However, this concept of Supremacy of European Union is not directly expressed in its treaties and directives. It is only implied through the judgments of the European Court of Justice. It is therefore a controversial issue within the member states of the European Union. Bibliography: Alina K, European Union Law (Abingdon, Oxon: Routledge Publishers, 2009). Anca P, Rejecting the EU Constituion? From the Constitutional Treaty to the Treaty of Lisbon (New York, Harlow Publishers, 2009). Catherine B, The Substantive Law of the EU: The Four Freedoms ( 3rd edn, Oxford, OUP, 2010). Damian C, Gareth Davies and Giorgio Monti, European Union Law: Text and Materials, (3rd end, Cambridge, CUP,2014). 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