The EU
\nlegal system and its law is an appropriate method of coordinating a European
\nproject of peaceful cooperation. Critically discuss. <\/p>\n
Introduction\n<\/p>\n
Supremacy through Establishing Supremacy Foundation \u2018\u2026real powers stemming from a This case European Supremacy On the Does Direct Conclusion\n<\/p>\n In conclusion, establishing the foundation of European Supremacy over member states creates opportunity to alter questionable national law. The Treaty of Rome 1957 was the first leap in European history to allow countries to voluntarily transfer sovereignty over to the European Community for the benefit of advancing the community as a whole. This prevented national law that can cause political tension between member states and reduce the effectiveness of the four freedoms. Enshrined in the European Community Article 249 gives the commission the ability to bind member states to regulations and directives. This is fundamental to the ECJ and CJEU European process of organising and upholding the four freedoms between member states. Cases such as Van Gen den Loos, cements the EU\u2019s power to act on incompatible national law and provides evidence of a country taking advantage of the trade agreement within the EU by applying extra tariffs on imports. The ECJ enforcing EU law supports the idea of safety and certainty between member states. Providing a governing body to oversee the four freedoms allows the ECJ to enforce directives which promote the peaceful cooperation between member states rather than allowing national law to cause conflict by charging tariffs, excessive taxing, monopolising electricity, all actions that cause tension between member states. All of this cannot be accomplished with limited power of the EU, the governing body of EU would not be able to implement Regulations nor directives to change bad policies in European countries which can hinder the peaceful cooperation between member states. Thus, supremacy using direct effect at this moment in time is the only acceptable solution to creating peaceful cooperation throughout the European Union. <\/p>\n EU Cases<\/strong><\/p>\n UK Statute<\/strong><\/p>\n EU Legislation<\/strong><\/p>\n Books<\/strong><\/p>\n Online Journal<\/strong><\/p>\n [1]<\/a> Treaty of Rome [1975]. <\/p>\n [2]<\/a> Consolidated version of the Treaty [3]<\/a> Treaty of Rome [1975].<\/p>\n [4]<\/a> Consolidated version of the Treaty [5]<\/a> Ibid, Article 242.<\/p>\n [6]<\/a> Case 26\/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v [7]<\/a> [8]<\/a> Case 6\/64 [9]<\/a> Ibid, Para 10.<\/p>\n [10]<\/a> Ibid, Para 3, sub para 2<\/p>\n [11]<\/a> Case 106\/77 Amministrazione delle Finanze dello Stato v Simmenthal SpA<\/em> [1978] [12]<\/a> Ibid, Para 24.<\/p>\n [13]<\/a> Ibid, Para 21<\/p>\n [14]<\/a> Case C-334\/94 Commission of the European Communities v French Republic<\/em> [1996] ECR [15]<\/a> [16]<\/a> Treaty establishing the European [17]<\/a> Case [18]<\/a> Merchant shipping Act 1988.<\/p>\n [19]<\/a> Council Directive 92\/51\/EEC [20]<\/a> Treaty of Rome 1957, Article 3 (c).<\/p>\n [21]<\/a> Ibid, Article 2.<\/p>\n [22]<\/a> The Lisbon Treaty [2007], Article [23]<\/a> Case [24]<\/a> The Lisbon Treaty [2007], Article [25]<\/a> Case 302\/86 Commission of the European Communities v Kingdom of Denmark <\/em>[1988] [26]<\/a> Case 249\/81 Commission of the European Communities v Ireland<\/em> [1982] ECR- 04005<\/p>\n [27]<\/a> Consolidated version of the Treaty [28]<\/a> Case 4-73 J. Nold, Kohlen- und Baustoffgro\u00dfhandlung v Commission of the European [29]<\/a> Ibid, Para 10.<\/p>\n [30]<\/a> Case C-159\/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen [31]<\/a> Treaty of Rome 1957, Article 59.<\/p>\n [32]<\/a> Case C-159\/90 The Society for the Protection of Unborn Children Ireland Ltd v Stephen [33]<\/a> Case 43\/75 Gabrielle Defrenne v Soci\u00e9t\u00e9 anonyme belge de navigation a\u00e9rienne [34]<\/a> Treaty on European Union [1992], [35]<\/a> \u2018The Direct Effect of European [36]<\/a> Ibid, Page 1<\/p>\n [37]<\/a> Ibid, Page 1<\/p>\n [38]<\/a> [39]<\/a> Ibid, Page 23, Para 1.<\/p>\n [40]<\/a> Case C-188\/89 A. Foster and others v British Gas plc<\/em>. [1990] ECR I-03313.<\/p>\n [41]<\/a> Andre Nollkaemper, \u2018The Duality of
\ndirect effect of European Union law over member states national law is essential
\nfor coordinating a European project of peaceful cooperation. The restriction on
\nmember states sovereignty is established in the Treaty of Rome 1957[1]<\/a>, known as the European
\nEconomic Community Treaty. By singing the 1957 Treaty member states voluntarily
\ntransfer sovereignty over to the EU, this is then cemented in European Case
\nlaw. Enforcing European Community law is provided by the European Court of
\nJustice outlined in Article 17(1)[2]<\/a> of the Treaty on the
\nEuropean Union, this provides certainty around EC law especially regarding the
\nfour freedoms within the EU. Direct effect of EU law through regulations and
\ndirectives is crucial to allowing the ECJ and promoting fair treatment among member
\nstates. Does applying and enforcing universal law through direct effect to 28
\ncountries create a more cohesive EU? For the purposes of this paper peaceful
\ncooperation is defined as the fluidity throughout the four freedoms without
\ncausing serious political tension, such as trade embargos.<\/p>\n
\nEuropean Supremacy <\/p>\n
\narises in a variety of forms throughout European Treaties and Case law. The
\ntreaty of Rome 1957 (TOR 1957), under \u2018Common Market\u2019 state \u2018\u2026signatory
\ncountries agree to gradually align their economic policies;\u2019[3]<\/a> This was the first instance where a state
\nvoluntarily signed a treaty reducing their sovereignty for the benefit of the
\ncommunity. Thus, the creation of directives held within European Community law;
\nArticle 249 states that regulations are \u2018binding in its entirety and directly
\napplicable to all member states\u2026\u2019[4]<\/a> In essence, any
\nregulations or directives set forth by the EU will have a direct binding effect
\non the member states. This in turn creates standing for the EU to co-ordinate
\nfair cooperation and a levelled playing field among member states. Furthermore,
\nArticle 242 states that the European Court of Justice (ECJ) can consider the
\ncircumstances and \u2018order that application of the contested act be suspended.\u2019[5]<\/a> This means the ECJ has the
\npower to suspend national law which conflicts with EU law. Therefore, by signing
\nthe TOR 1957 member states effectively transfer some of their sovereign rights
\nover to the community. <\/p>\n
\nof the European Court of Justice supremacy over national law is established in
\nthe case of Van Gend en Loos (Case 26\/62)<\/em>.[6]<\/a> In this case chemicals
\nwere being transported from west Germany to the Netherlands to which the
\nNetherland authorities charged a tariff on the import. The question in this
\ncase is whether Article 12 of the EEC (now Article 30 of the TFEU) to impose
\nduties on imports has direct application. Article 12 was upheld to which the
\ncourt stated \u2018The European Economic Community Constitutes a new legal order of
\ninternational law for the benefit of which the states have limited their
\nsovereign rights\u2026\u2019[7]<\/a>
\nA true turning point for EU authority which lead to the advancement in the case
\nof Costa v Enel (Case 6\/64)<\/em>.[8]<\/a> In this case Costa
\nprotested the nationalisation of electricity in Italy, stating that
\nnationalisation of the industry would
\nviolate the TOR 1957, now EEC Treaty, Article 37 \u2018elimination of monopolies of
\ncommercial character\u2026\u2019[9]<\/a> The outcome of this case
\nhad marginally solidified the power of the EU, by the EEC creating its own
\nlegal system and by doing so created <\/p>\n
\nlimitation of sovereignty or a transfer of power from the state to the
\ncommunity, the member states have limited their sovereign rights and have thus
\ncreated a body of law which minds both nationals and themselves.\u2019[10]<\/a><\/p>\n
\nclearly established the supremacy of EU law over citizens and the states
\nthemselves. Which in turn contributed to the solidification of EU law over
\nnational law. Since Enel the EU accumulated more power through case like Simmenthal (No.2) (Case 106\/77).<\/em>[11]<\/a> This case established
\nthat domestic law conflicting directly with EU law, domestic law should be set
\naside automatically without an ECJ judgment.[12]<\/a> The judgment goes on to
\nstate that national courts must apply Union law in its entirety and protect
\nrights which confer on individuals.[13]<\/a> Furthermore, the strength of EU law reaches
\ninto domestic law which is not necessarily in practice anymore, for example the
\ncase of Commission v France.[14]<\/a> In this case Article 3 of
\nthe French Customs Code states that a \u2018certain portion of the crew of the
\nship\u2026must be of French nationals.\u2019 [15]<\/a> Article 3 was no longer
\nin effect, but the rule was still in breach of article 39 of the EEC of freedom
\nof movement of workers.[16]<\/a> Lastly, another landmark
\ncase establishing direct effect of regulations on member states is established
\nin the case of Factortame (No.2)[1991]
\n(Case C-213\/89 )<\/em>[17]<\/a>, in this case the UK
\nimplemented restrictions on registration of vessels in UK waters through the
\nMerchant shipping Act 1988.[18]<\/a> The restrictions
\nprevented Spanish fishermen from registering as UK vessels breaching the TOR
\n1957 and ultimately Directives 92\/51\/EEC \u2018\u2026obstacles of freedom of movement for
\npersons and services\u2026\u2019.[19]<\/a> It was held that EU law
\ntrumps domestic law. Although, on the face of it, EU regulation of member
\nstates seems to cause tension, but it truly prevents unfairness which could
\nlead to violent outbreaks. Having fair trade and playing by the same rules
\ndecreases the chances of member states abusing their power towards weaker
\ncountries and ultimately allowing the European citizens to benefit from less
\ninflated pricing. Yet, British fisherman were not entirely satisfied with the
\noutcome of the case, but it is a small price to pay to be a part of the single
\nbiggest market in the world. Having free access to the market allows for
\ngreater trade potential. Nevertheless, establishing supremacy over 28 member
\nstates provides solid foundation to implement regulations and directives to
\nreduce conflict and increase fair trade between member states. <\/p>\n
\nCourt of Justice Enforcing Union Law Increases Peaceful Cooperation<\/p>\n
\nof EU law creates peaceful trade among member states. The EU inherently comes
\nwith benefits of freedom of movement of goods, services, people, and capital,[20]<\/a> in turn these benefits produce
\neconomic advantages.[21]<\/a> These freedoms are guided,
\nenforced and upheld by the ECJ and Court of Justice of the European Union
\n(CJEU) from powers provided by the Article 19(1) of the Lisbon Treaty 2007
\n(TEU).[22]<\/a> This is done by enforcing
\nregulations imposed on member states regarding the common market, to ensure member
\nstates can cooperate fairly and on even terms. Europe in turn, can reasonably
\nargue that imposing restrictions can reduce tension between member states. This
\nreduces the chance of member states taking advantage of other weaker states for
\nexample imposing tariffs on imported goods. In the key case of Cassis de Dijon (Case 120\/78)<\/em> [23]<\/a>, it solidified the policy
\nof freedom of goods. Cassis established that member states must respect the
\ntrade rule set in Article 207(1) TFEU.[24]<\/a>This means that other
\nstates cannot seek to impose their own rules on goods that are represented,
\nthus this case was ground-breaking towards the regulation of the single market.
\nSimilar cases soon after were brought to attention via the commission, cases like Denmark (Danish bottle) [1988] (Case
\n302\/86)<\/em> [25]<\/a>.
\nThis case further established the rule in Cassis which sought to protect the
\npublic health, the fairness of commercial transactions, and the defence of
\nconsumers. Enforcing regulations and directives prevent financial
\ndiscrimination among member states highlighted in the Ireland (excise Payment) [1980] (Case 249\/81)<\/em> [26]<\/a> case, where Ireland
\nallowed for beer, wine, and spirits to defer tax payments when the beverages were
\nbeing manufactured but imposed instant tax payments on imported goods. Both
\nresulted in equal amounts of tax collected although the collection scheme was
\ndiscriminatory and breached Article 110 TFEU. [27]<\/a> Another case that established the fairness of
\ntrade among member states is the case of Nold
\n[1974] (Case 4-73).[28]<\/strong><\/a><\/em>
\nIn this case a coal wholesales man was seeking the annulment of a commission
\ndecision which placed restrictive criteria on coal supply. Nold claimed the
\ncommission was acting discriminatory, the case was dismissed on the grounds
\nthat Nold was not suffering from the decision of the commission but rather the
\neconomic recession.[29]<\/a> Another example of the ECJ
\nfocusing on the economic standing of a case is in the case of Grogan.[30]<\/a> The case surrounds the
\nproblem of Grogan passing out leaflets regarding abortion clinics in Britain. The
\nIrish high court granted an injunction to prevent the leaflets from being
\ndistributed. On appeal Grogan went straight to the ECJ to request advice on
\nwhether abortion service falls under Article 59 TOR 1957.[31]<\/a> The interesting part of
\nthis case is that the Advocate General decided that the info ban was
\nunjustified as it was in the public interest. The ECJ also came to the same
\ndecision, although they decided that the information is \u2018\u2026independent of
\neconomic activity carried on by clinics established in another member state.\u2019[32]<\/a> Therefore the case does
\nnot fall within the scope of the EC law. Though this case is not based on
\ntrade, clear indication of economic interest was present in the ECJ\u2019s decision.\n<\/p>\n
\nother hand, the evolution of the EU has progressed in social fairness among
\nmember states. Stated in the Grogan case above, the ECJ judgment felt that a
\nsocial matter was void of \u2018economic activity\u2019 and not fall within the scope of
\nthe EU law. This is not the standard held in a more recent case of Defrenne v Sebena<\/em> [1976] (Case 43\/75)<\/em>.[33]<\/a> This case concerned woman\u2019s
\nrights to equal pay. During this period human rights were still in development
\nthrough EC law, where the TOR 1957 did not mention these fundamental rights. As
\nwell as, numerous attempts by the European Parliament to add human rights to
\nthe Maastricht treaty it was only reduced to a single article declaring that
\n\u2018The union shall respect fundamental rights\u2026\u2019[34]<\/a> referring to the case of Sebena <\/em>case the courts emphasised the
\nneed for horizontal and vertical direct effect of Treaty provisions. This case
\nstrengthened citizens rights by allowing them to enforce rights on private
\nparties Article 119 TFEU. Allowing the ECJ to enforce fundamental rights such
\nas \u2018equal pay\u2019 provides citizen security throughout member states by taking
\naction through the EU when their own government does not act. Equal pay is a
\npositive aspect because it\u2019s morally right and it provides good feedback
\ntowards politicians which in turn helps politicians make better future
\ndecisions of where their society is heading to best accommodate their citizens
\nand as well as collect date and push towards a better Europe. <\/p>\n
\nimposing direct effect create a cohesive union? <\/p>\n
\neffect is an important principle in EU law as it allows the Union to implement
\nRegulations and Directives enshrined under Article 288 TFEU which is binding on
\nthe country or countries imposed on. This power is given through the case Van Gend en Loos<\/em>. This in turn gives the
\nright to directly invoke European acts before national courts.[35]<\/a>There are two effects,
\nhorizontal and vertical effect. Vertical effect allows individuals to invoke a
\nEuropean provision in relation to the country.[36]<\/a> Horizontal effect is in
\nrelation to individuals, which means one individual can invoke a provision on
\nanother.[37]<\/a>
\nThis is established in the case of Antonio Munoz, which allows regulations both
\nhorizontal and vertical effect. Evolving the power and influence of
\nregulations. Sophie Oliver-Robinson argues the evolution of EU law outdates the
\ncase of Van Gend Loose<\/em> and as such we
\nshould not \u2018cling too rigidly to its doctrine, in trying to address the new
\nchallenges that the evolution of EU law has created.\u2019[38]<\/a> She further argues that
\nEU law should yield to national law when confronted with resisting substance of
\nnational law. [39]<\/a>
\nAdvancements of Direct effect can be proven by the case of Foster v British Gas
\n1990[40]<\/a>, it was held in this case
\nthat vertical effect was also available against organisations, organisations
\ngoverned by state authority. On the other hand, Andre Nollkaemper argues that
\ndirect effect can \u2018function as a powerful sword that can pierce the boundary of
\nthe national legal order and protect individual rights where national law
\nfails.\u2019[41]<\/a> He goes on to argue that
\nlocking in international rights will enable European courts to protect them
\nespecially during the transition from an authoritarian to a rule of law based
\nlegal system.[42]<\/a>
\nWhich means direct effect cements particular rights and safeguards against
\nauthoritarian rule[43]<\/a> as depicted during
\n1940\u2019s. This is especially important because on one hand Sophie argues we must
\nmove away from the VGL case and Nolkaemper argues that the direct effect is
\nessential for securing individual rights. The reason direct effect was created
\nis to give the EU power to change law, law which contradicts the peaceful
\nnature of the EU. It is meant to benefit the individuals who reside under EU
\nlaw, not hinder them. Allowing the ECJ to apply direct effect allows for the
\nindividuals and corporations unjustly treated to voice their complaint to a governing
\nbody that can make a difference and has their best interest in mind. Thus,
\nconflicts arising through member state transactions or interstate transactions
\ncan settle dispute in a nonviolent manor reducing political tension between
\ncitizens and state and between member state to member state. As the ECJ acts as
\na referee to eliminate any problems that may arise. <\/p>\n\n
\n
\n
\n
\n
\n
\nof the European Union [2012] OJ C 326, Article 17 (1).<\/p>\n
\nestablishing the European Community [2002] OJ C 325, Article 249 [3].<\/p>\n
\nNetherlands Inland Revenue Administration <\/em>[1963] ESE-00001.<\/p>\n
\nIbid, Para [3].<\/p>\n
\nFlaminio Costa v E.N.E.L<\/em> [1964] ESE- 00585. <\/p>\n
\nECR 00629. <\/p>\n
\n1-01307.<\/p>\n
\nIbid, Para 27.<\/p>\n
\nCommunity (Nice Consolidated version)[2002] C-325, Article 39.<\/p>\n
\nC-213\/89 <\/a>The Queen v Secretary of
\nState for Transport, ex parte: Factortame Ltd and others<\/em> [1990] ECR 1-02433.<\/p>\n
\nProfessional Education and Training to Supplement Directive 89.48 EEC, (1)<\/p>\n
\n19(1).<\/p>\n
\n120\/78 <\/a>Rewe-Zentral AG v Bundesmonopolverwaltung f\u00fcr
\nBranntwein<\/em> [1979]
\nECR 00649.<\/p>\n
\n207 (1).<\/p>\n
\nECR – 04607.<\/p>\n
\non the Functioning of the European Union [2012], Article 110<\/p>\n
\nCommunities<\/em> [1974] ECR- 00491<\/p>\n
\nGrogan and others<\/em> [1991] ECR I-04685, Para 26<\/p>\n
\nGrogan and others <\/em>[1991] ECR I-04685, Para 26.<\/p>\n
\nSabena<\/em> [1976] ECR-00455<\/p>\n
\nSection F (2). <\/p>\n
\nUnion law\u2019 (EU-Lex, 14 January 2015) < https:\/\/eur-lex.europa.eu\/legal-content\/EN\/TXT\/?uri=LEGISSUM%3Al14547<\/a> > accessed 10 December 2019.<\/p>\n
\nSophie Robin-oliver, \u2018The evolution of direct effect in the EU:
\nStocktaking, problems, projections\u2019 (2014) International journal of
\nConstitutional law, Vol 12, Issue 1 < https:\/\/academic.oup.com\/icon\/article\/12\/1\/165\/628620<\/a> > Accessed 10 December 2019, Page
\n2, para 4.<\/p>\n
\nDirect Effect of International law\u2019 (2014) European Journal of Internation law,
\nVol 25, Issue 1 < https:\/\/academic.oup.com\/ejil\/article\/25\/1\/105\/497370<\/a> > accessed 10 December 2019, Page
\n4.<\/p>\n