Sovereignty of EU law

The Sovereignty claims of EU law

Within standard conceptions of international law, states remain sovereign. They may
have to exercise their sovereignty subject to the international Treaty obligations they
have created, but the domestic legal effects of any such obligations will be a matter
for the national legal orders of each state to determine.

In the 1950s, it was widely assumed that this, the traditional model of international
law would apply to the European Communities. Under this model, it is the states,
which are masters of the Treaties and not the other way around. This model was
dramatically overturned in the 1960s by two judgments, that have been the starting
point ever since in debates about the legal authority of EU law.

Van Gend en Loos

The Court ruled that the EC Treaty did not merely regulate mutual obligations
between Member States, but established what the court called a ‘new legal order of
international law for the benefit of which the states have limited their sovereign
rights.’

Costa v ENEL

Van Gend en Loos was taken further in Costa v ENEL. The court ruled that by
contrast with ordinary international treaties, the EEC Treaty has created its own legal
system which, on the entry into force of the Treaty, became an integral part of the
legal systems of the Member States and which their courts are bound to
apply……………….

The transfer by the States from their domestic legal system to the Community legal
system of the rights and obligations arising under the treaty carries with it a
permanent limitation of their sovereign rights, against which a subsequent unilateral
act incompatible with the concept of the Community cannot prevail.

The claims of the Court of Justice must be examined critically; not simply because
they may be undesirable but also because they may represent only a partial statement
of the authority of EU law. The Real power in the Union remains firmly with the
national administrations. The execution or administration of EU law is
overwhelmingly a matter for domestic authorities and national governments within
Member States. Administrative actors are central to not just enforcement of but also
popular awareness and acceptance of the authority of EU law.

However, Article I—I3 of the Constitutional Treaty provided that within the
competences conferred upon the Union, EU law would have primacy over the laws of
the Member States. Following the failure of the Constitutional Treaty, this provision
was seen as expressing too much political enthusiasm for the principle. Instead, at
Lisbon, a Declaration was attached to the Treaties.
Declaration 17

The Conference recalls that, in accordance with well settled case law of the Court of
Justice of the European Union, the Treaties and the law adopted by the Union on the
basis of the Treaties have primacy over the law of Member States, under the
conditions laid down by the said case law.

An opinion of the Council Legal Service was also attached, which provides only
sparse information.

Opinion of the Council Legal Service, EU Council Doc. 11197/07, 22 June 2007

It results from the case law of the Court of Justice that primacy of EC law is a
cornerstone principle of Community law. According to the Court, this principle is
inherent to the specific nature of the European Community. At the time of the first
judgment of this established case law (Costa V ENEL) there was no mention of
primacy in the Treaty. It is still the case today. The fact that the principle of primacy
will not be included in the future treaty shall not in any way change the existence of
the principle and the existing case law of the Court of Justice.

A minimalist interpretation is that these documents provide a reassurance of

continuity that the tradition of primacy established in Costa is uninterrupted. A more
rigorous interpretation would note that this is the first time that the Costa case law has
been explicitly endorsed and ratified by all Member States. Such ratification suggests
that the primacy of EU law can no longer be relegated to merely being the view of the
Court of Justice. Instead, primacy now represents the political consensus as to the
status of EU law. Account will have to be taken of this political vindication by all
courts within the Union when they apply the principle in future. If a national
constitutional law were to deny the primacy of EU law, it would correspondingly be
placing itself in an institutionally isolated position.

The Primacy of EU law

The primacy principle in which EU law takes precedence over national law was first
proclaimed in Costa. It is most neatly illustrated by the decision in Internationale
Handelsgesellschaft, in which the court famously ruled that EU law takes precedence
over all forms of national law, including national constitutional law.

‘Recourse to the legal rules or concepts of national law in order to judge the validity
of measures adopted by the institutions of the Community would have an adverse
effect on the uniformity and efficacy of Community law. Then validity of such
measures can only be judged in the light of Community law……’

The primacy of EU law also has jurisdictional dimension. It applies whenever a

conflict appears before any court or body, which is competent to take legal decision.
In Simmenthal, an Italian system of fees for veterinary inspections of beef imports
had already been held by the Court of Justice to breach EU law. An Italian Magistrate
asked the Court whether he was required to disapply the relevant Italian law. This was
a power which at the time was enjoyed only by the Italian Constitutional Court, as
only it had the power of legislative review.

It was held:

‘……every national court must, in a case within its jurisdiction, apply Community law
in its entirety and protect rights which the latter confers on individuals and must
accordingly set aside any provision of national law which may conflict with it,
whether prior or subsequent to EU law.’

It must however be noted that the national constitutional courts are willing to grant
EU law authority subject to its not violating certain national taboos. Their assertion of
national sovereignty is rather an assertion of the power to put ultimate safeguards into
action rather than an assertion of regular control of the application of EU law:
Gauweiler

Exclusive Competence

In fields of exclusive competence only the Union may legislate, with Member States
being able to legislate only if authorized by the Union or to implement EU measures.
From a national perspective this is the most draconian of competences as it involves a
complete surrender of jurisdiction to the Union. The fields of exclusive competences
are therefore limited:

 The Customs Union;

 The Competition rules necessary for the functioning of the internal market;
 Monetary policy for the Member States whose currency is the euro;
 The conservation of marine biological resources under the common fisheries
policy;
 Common commercial policy.

Shared Competence

Fields of shared competence allow the Member States to legislate to the extent that
the Union has not legislated. Then model is one of co-operative federalism, in which a
shared responsibility is granted to both the actors to realize a common policy. This
model applies to:

 The internal market;

 Social policy;
 Cohesion policy;
 Agriculture and fisheries, excluding the conservation of marine biological
resources;
 Environment;
 Consumer protection;
 Transport;
 Trans-European networks;
  Energy;
 Freedom;
 Security and justice;
 Common safety concerns in public health matters.

Other fields of Competence

The three final types of competence relates to fields where the Union has no formal
legislative competence and where, in a conflict between EU measures and national
laws, national law is to have formal precedence. They are:

 Economic and Employment Policies: Article 2(3) TFEU;

 Common Foreign and Security Policy: Article 2(4) TFEU;
 Supporting, Coordinating and supplementing action: Article 2(5) TFEU.

Limits of EU Legal Sovereignty

Doctrine of Conferred Sovereignty

The remit of EU legal sovereignty is governed by the principle of conferred powers

which is set out in Article 5 TEU:

‘1. The limits of Union competences are governed by the principle of

conferral……

2. Under the principle of conferral, the Union shall act only within the limits of
the competences conferred upon it by the Member States in the Treaties to
attain the objectives set out therein. Competences not conferred upon the
Union in the Treaties remain with the Member States.’

Alongside this, reference is made to the same principle in Article 1 TFEU:

‘This Treaty organizes the functioning of Union and determines the areas of
delimitation of and arrangements for exercising its competences.’

In general we take into account two limiting factors; the Principle of Subsidiarity and
the Principle of Proportionality, both of which come within the ambit of Article 5.

The Principle of Subsidiarity aims to ensure that decisions are taken as closely as
possible to the citizen and that constant checks are made to verify that action at EU
level, as to whether it is justified in light of the possibilities available at national,
regional or local level.

The Principle of Proportionality requires that any action by the EU should not go
beyond what is necessary to achieve the objectives of the Treaties.

Therefore, decisions are taken first at the national level and only when they can be
taken better at the EU level is the latter course adopted. The Treaty of Lisbon has
adopted an Early Warning System, in which if 1/3 of all the national Parliaments of
the 28 Member States are of the opinion that a proposal from the Commission violates
the Principle of Subsidiarity, they can issue a ‘yellow card’ to the Commission, which
is then forced to review the proposed action.

The Fidelity Principle

A requirement on Member States simply not to breach EU law would be insufficient

to secure the full effectiveness of the EU legal system. All legal systems confer
responsibilities upon public bodies to ensure that the law is generally applied, policed
and accessible and that there are sufficient remedies for breach of the law. Known in
the United States as the ‘fidelity principle’, in EU law the principle is set out in
Article 4(3) TEU:

‘……………….

The Member States shall take any appropriate measure, general or particular, to
ensure fulfillment of the obligations arising out of the Treaties or resulting from the
acts of the institutions of the Union.

……………………’

This provision applies not only to Member States but also to the EU institutions,
which must co-operate with national bodies to secure the full effectiveness of EU law.