ECJ
JUSTIN
Judicial Studies Institute
Masaryk University
Katarína Šipulová
Brno, 21 October 2024

OUTLINE
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1.The Role and Composition of the CJEU
2.EU Law and Principle of Conferral
3.The Problem with Competences
4.Core Proceedings before the CJEU
5.Fundamental Principles of the EU Law

1. CJEU
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ECJ and European Integration
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•Conventional prototype of courts
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•Independent courts
•Decide cases on the basis of preexisting rules
•Adversary procedure, dichotomous ruling (i.e. winners x losers)
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• who are the parties?
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•Appeal
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•Triadic resolution of conflicts

Court of Justice of the European Union
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•Court of Justice
•General Court (Court of First Instance, CFI 1988)
•Civil Service Tribunal (2004, 2016 -> GC)
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•Why not Supreme Court, High Court, etc.?

Court of Justice – 2023
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Court of Justice - 1952
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Court of Justice of the European Union
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•Eric Stein (1981 AJIL)
“Tucked away in the fairyland Duchy of Luxemburg and blessed until recently, with the benign
neglect by the powers that be and the mass media, the Court of Justice of the European Communities
has fashioned a constitutional framework for a federal-type structure in Europe.”
Palais de la Cour de Justice CJEU July 2021 Sign and Towers B and C.jpg
https://upload.wikimedia.org/wikipedia/commons/thumb/d/d7/Villa_Vauban_Luxembourg_02.jpg/250px-Vill
a_Vauban_Luxembourg_02.jpg

Composition CoJ
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•Luxembourg
•27 judges
•11 advocates general
•Registrar
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•Grand chamber
•Chamber of 3
•Chamber of 5
•Full sitting

Core principles
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•Direct effect
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•(Su)premacy
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•State liability
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•Fundamental rights

CJEU Annual Report 2023
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CJEU Annual Report 2023
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CJEU Annual Report 2023
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CJEU Annual Report 2023
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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CJEU
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2. EU Law and Principle of Conferral
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EU Law
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•Primary
•Treaties (IL)
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•Secondary
•Directives
•Regulations
•Decisions
•Opinions
•Tertiary
•Recommendations, soft law

Principle of Conferral
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•JURISDICTION AREAS
•1. No jurisdiction of the EU
•2. Autonomous jurisdiction (authority) of the EU
•3. Overlap of EU/member states authority
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•Principle of Conferral
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•EU is not a sovereign, does not have inherent powers, but conferred competences (by Treaties)
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Principle of Conferral
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Article 5
(ex Article 5 TEC)
1.   The limits of Union competences are governed by the principle of conferral. The use of Union
competences is governed by the principles of subsidiarity and proportionality.
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.
3.   Under the principle of subsidiarity, in areas which do not fall within its exclusive
competence, the Union shall act only if and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States, either at central level or at regional and
local level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level. (…).
4.   Under the principle of proportionality, the content and form of Union action shall not exceed
what is necessary to achieve the objectives of the Treaties. (…)
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EU Competences
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•Why is it important? Compared to national parliament, if EU legislates, it needs to justify its
authority to do so
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•EU does not have INHERENT powers, they must be conferred
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•i.e. constitutional principle of conferral
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•Legislative competence = material field within which an authority (EU) can act (legislate)
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•Problem: instead of list, different types of competences in individual policies
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EU Competences
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•Understanding of these thematic competences further complicated by
1.Spill-over into other policy areas (i.e. the list is not definitive)
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2.Rise of EU’s general competences according to A 114 and A 352
-These are two different additions to thematic competences EU has
3.Doctrine of implied powers
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1. Spill-over
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•1. Spill-over
•Follows from a soft conferral principle (EU has authority to interpret whether it has a
competence)
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•The Working Time Directive (C-84/94), includes provision that allows the Union to encourage
improvements, especially in the working environment, as regards the health and safety of workers.
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1. Spill-over
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Article 118a. [153 TFEU]
1.Member States shall pay particular attention to encouraging improvements, especially in the
working environment, as regards the health and safety of workers, and shall set as their objective
the harmonisation of conditions in this area, while maintaining the improvements made.
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2.In order to help achieve the objective laid down in the first paragraph, the Council, acting in
accordance with the procedure referred to in Article 189c and after consulting the Economic and
Social Committee, shall adopt, by means of directives, minimum requirements for gradual
implementation, having regard to the conditions and technical rules obtaining in each of the Member
States.
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•Can EU adopt legislation on general organization of working time?
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EU Competences
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EU Competences
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•Case Casagrande C-9/74
•Abolishment of discrimination between different MS  as regards employment, remuneration and other
conditions of work – in order to facilitate the free movement of persons in the internal market. EU
legislation also facilitates integration of worker and his/her family into the host state (children
shall be admitted to general educational etc. courses under the same conditions as the nationals of
that state, if such children are residing in the state’s territory.
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•ECJ interpreted admission of workers’ children as related also to general measures intended to
facilitate educational attendance: including educational grants
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2. General Competence
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•A. Article 114: harmonization, horizontal competence (approximation of national laws which have as
an aim to establish and allow functioning of the internal market)
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•1. Save where otherwise provided in the Treaties, the following provisions shall apply for the
achievement of the objectives set out in Article 26. The European Parliament and the Council shall,
acting in accordance with the ordinary legislative procedure and after consulting the Economic and
Social Committee, adopt the measures for the approximation of the provisions laid down by law,
regulation or administrative action in Member States which have as their object the establishment
and functioning of the internal market.
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•2. The Union shall adopt measures with the aim of establishing or ensuring the functioning of the
internal market, in accordance with the relevant provisions of the Treaties.
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2 General competence
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EU Competences
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•3. Implied powers
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•= treaty-making powers, or external powers
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ECJ’s role
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•Review of all European law measures
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•Review of the acts of member states
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•Infringement proceedings (enforcing the law)
•Actions for annulment (annulling EU legal acts)
•Actions for failure to act (ensuring the EU takes action)
•Preliminary rulings (interpreting the law)
•Actions for damages (sanctioning EU institutions)
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Infringement
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Article 258 TFEU
•If the Commission considers that a Member State has failed to fulfil an obligation under the
Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the
opportunity to submit its observations.
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•If the State concerned does not comply with the opinion within the period laid down by the
Commission, the latter may bring the matter before the Court of Justice of the European Union.
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Article 259 TFEU
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•A Member State which considers that another Member State has failed to fulfil an obligation under
the Treaties may bring the matter before the Court of Justice of the European Union.
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•Before a Member State brings an action against another Member State for an alleged infringement of
an obligation under the Treaties, it shall bring the matter before the Commission.
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•The Commission shall deliver a reasoned opinion after each of the States concerned has been given
the opportunity to submit its own case and its observations on the other party's case both orally
and in writing.
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•If the Commission has not delivered an opinion within three months of the date on which the matter
was brought before it, the absence of such opinion shall not prevent the matter from being brought
before the Court.
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Infringement
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Article 260 TFEU
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1. If the Court of Justice of the European Union finds that a Member State has failed to fulfil an
obligation under the Treaties, the State shall be required to take the necessary measures to comply
with the judgment of the Court.
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2. If the Commission considers that the Member State concerned has not taken the necessary measures
to comply with the judgment of the Court, it may bring the case before the Court after giving that
State the opportunity to submit its observations. It shall specify the amount of the lump sum or
penalty payment to be paid by the Member State concerned which it considers appropriate in the
circumstances.
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•If the Court finds that the Member State concerned has not complied with its judgment it may
impose a lump sum or penalty payment on it.
3. When the Commission brings a case before the Court pursuant to Article 258 on the grounds that
the Member State concerned has failed to fulfil its obligation to notify measures transposing a
directive adopted under a legislative procedure, it may, when it deems appropriate, specify the
amount of the lump sum or penalty payment to be paid by the Member State concerned which it
considers appropriate in the circumstances.
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•If the Court finds that there is an infringement it may impose a lump sum or penalty payment on
the Member State concerned not exceeding the amount specified by the Commission. The payment
obligation shall take effect on the date set by the Court in its judgment.
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Infringement
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•Most famous cases?
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Infringement
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•Most famous cases?
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•Article 258 (initiated by the Commission)
•Poland & Hungary: violation of LGBQI rights
•Commission v Poland (C-791/19)
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•Article 259 (initiated by the Member State)
•Hungary v Slovak Republic (C-364/10)
•Spain v United Kingdom (C-145/04)
•Dutch Tweede Kamer resolution?
•Commission v Poland (C-791/19) intervention of 5 member states
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•Sanctions?
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https://www.thenewfederalist.eu/the-enemy-within-article-259-and-the-union-s-intergovernmentalism?l
ang=fr
Hungary vs Slovakia: Slovak Republic Did Not Violate EU Law in Banning the President of Hungary
from Entering Its Territory. Hungarian President László Sólyom was scheduled to travel on August
21, 2009, to the Slovakian town of Komárno, where he was to help inaugurate a statue of Saint
Stephen, founder and first king of the Hungarian State.7 The timing of the trip was notable for
both countries. In Hungary, August 20 is a national holiday celebrating Saint Stephen, while in
Slovakia, August 21 is considered a “sensitive date” because on August 21, 1968, Czechoslovakia was
invaded by five Warsaw Pact countries, including Hungary
the public security exception to Directive 2004/38
“EU law must be interpreted in the light of the relevant rules of international law, since
international law is part of the EU legal order and is binding on [those] institutions.”37 Thus,
the court reasoned, the relevant inquiry was whether President Sólyom’s status as the Hungarian
head of state “constitute[d] a limitation, on the basis of international law,” on his free movement
rights.
Right to vote - Commonwealth citizens residing in Gibraltar and not having citizenship of the
Union. Spain v. UK concerns the Spanish allega-tion that an extension of the right to vote for the
European Parliament to cer-tain inhabitants of the Crown Colony of Gibraltar who do not have
British nationality (the so-called Qualifying Commonwealth Citizens) is an infringe-ment of EU law.

Annulment
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Article 263 TFEU
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•The Court of Justice of the European Union shall review the legality of legislative acts, of acts
of the Council, of the Commission and of the European Central Bank, other than recommendations and
opinions, and of acts of the European Parliament and of the European Council intended to produce
legal effects vis-à-vis third parties. It shall also review the legality of acts of bodies, offices
or agencies of the Union intended to produce legal effects vis-à-vis third parties.
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•It shall for this purpose have jurisdiction in actions brought by a Member State, the European
Parliament, the Council or the Commission on grounds of lack of competence, infringement of an
essential procedural requirement, infringement of the Treaties or of any rule of law relating to
their application, or misuse of powers.
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•Any natural or legal person may, under the conditions laid down in the first and second
paragraphs, institute proceedings against an act addressed to that person or which is of direct and
individual concern to them, and against a regulatory act which is of direct concern to them and
does not entail implementing measures.
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•The proceedings provided for in this Article shall be instituted within two months of the
publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of
the day on which it came to the knowledge of the latter, as the case may be.
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Annulment
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Article 264 TFEU
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If the action is well founded, the Court of Justice of the European Union shall declare the act
concerned to be void.
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However, the Court shall, if it considers this necessary, state which of the effects of the act
which it has declared void shall be considered as definitive.
Article 266 TFEU
The institution whose act has been declared void or whose failure to act has been declared contrary
to the Treaties shall be required to take the necessary measures to comply with the judgment of the
Court of Justice of the European Union.
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Annulment
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•i.e. Review  of legality of
•Legislative acts
•Acts of Council, European Commission and ECB
•Acts of European Parliament and European Council intended to produce legal effects vis-à-vis
3rd parties
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•Applicants
•Privileged  (MS, EP, Council, Commission)
•Semi-privileged (Court of Auditors, Committee of Regions)
•Non-privileged (individuals)
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•Grounds
•Lack of competence
•Infringement of procedural requirement (C-138/79 SA Roquette Frères v Council and C-139/79 Maizena
GmbH v Council)
•Infringement of Treaties or Charter
•Infringement or RoL related to the application of Treaties
•Misuse of powers
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•Famous cases?
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Action for Failure to Act
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•Article 265 TFEU
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Should the European Parliament, the European Council, the Council, the Commission or the European
Central Bank, in infringement of the Treaties, fail to act, the Member States and the other
institutions of the Union may bring an action before the Court of Justice of the European Union to
have the infringement established. This Article shall apply, under the same conditions, to bodies,
offices and agencies of the Union which fail to act.
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The action shall be admissible only if the institution, body, office or agency concerned has first
been called upon to act. If, within two months of being so called upon, the institution, body,
office or agency concerned has not defined its position, the action may be brought within a further
period of two months.
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Article 266 TFEU
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The institution whose act has been declared void or whose failure to act has been declared contrary
to the Treaties shall be required to take the necessary measures to comply with the judgment of the
Court of Justice of the European Union.
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European Commission v. European Parliament and European Council, European Union Court of Justice
(2014, no. C‑427/12)
472 cases

Preliminary Ruling Procedure
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Article 267
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•The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings
concerning:
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•(a) the interpretation of the Treaties;
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•(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of
the Union;
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•Where such a question is raised before any court or tribunal of a Member State, that court or
tribunal may, if it considers that a decision on the question is necessary to enable it to give
judgment, request the Court to give a ruling thereon.
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•Where any such question is raised in a case pending before a court or tribunal of a Member State
against whose decisions there is no judicial remedy under national law, that court or tribunal
shall bring the matter before the Court.
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•If such a question is raised in a case pending before a court or tribunal of a Member State with
regard to a person in custody, the Court of Justice of the European Union shall act with the
minimum of delay.
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CJEU and domestic courts
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AC: no scope for reasonable doubt, equally obvious to other member state courts, analysis using
authentic interpretation of the EU law, language equivalence, contextual reading

CJEU and domestic courts

Van Gend: dutch preliminary question, on article 12 TEC
Set out the authority of ECJ

CJEU and domestic courts
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•Who refers and why?
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•Judicial attitudes and educational background
•Patterns of transnational economic exchange
•Public support for integration
•Democratic aversion to judicial power
•Legal culture
•Economic clusters
•Institutional differences among domestic courts
• strategic behavior of lower courts
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•“[O]ver the entire life of the Community, appellate courts have been more active than lower
courts  in referring questions to the European Court. If we consider the fact that there are many
more lower than appellate courts, and that lower courts process the vast bulk of national
litigation, this discrepancy is all the more striking. Because a core function of appellate judging
is to resolve disputes involving legal interpretation and conflict of law, we would expect the
appellate courts to be far more involved in the construction of the legal system than Alter
imagines them to be.” (Stone Sweet and Brunell 1998: 90)
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Van Gend: dutch preliminary question, on article 12 TEC
Set out the authority of ECJ

Four Freedoms of Single Market
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•Freedom of movement of persons
•Freedom of movement of goods
•Freedom of movement of Services and capital
•Freedom of establishment

Core principles
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•Direct effect
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•(Su)premacy
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•State liability
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•Fundamental rights

Direct effect and supremacy
•What is the direct effect?
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•Where do you find it?
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•How did the ECJ arrived to direct effect?

What is the direct effect?
Monism v Dualism
M: international law directly applicable as any domestic law
 D: binding only on the state, not in; transposition needed

288 TFEU



Direct effect and direct applicability
•Regulations and decisions: contain directly applicable norms
•Van Gend en Loos (Case 26/62)
•Origins: reclassification of a chemical into a custom category entailing higher customs charges
(BENELUX)
•Van Gend en Loos: postal and transportation company, transporting formaldehyde from West Germany
to the Netherlands
•Opposes import tariff as contrary to the A12 of the Treaty of Rome:
•"Member States shall refrain from introducing between themselves any new customs duties on imports
and exports or any charges having equivalent effect, and from increasing those which they already
apply in their trade with each other."

Direct effect and direct applicability
Van Gend en Loos (Case 26/62)
 The wording of article 12 contains a clear and unconditional prohibition which is not a positive
but a negative obligation. This obligation, moreover, is not qualified by any reservation on the
part of states which would make its implementation conditional upon a positive legislative measure
enacted under national law. The very nature of this prohibition makes it ideally adapted to produce
direct effects in the legal relationship between member states and their subjects.

Van Gend en Loos
The objective of the E[U] Treaty, which is to establish a common market, the functioning of which
is of direct concern to interested parties in the [Union], implies that this Treaty is more than an
agreement which merely creates mutual obligations between the contracting States. This view is
confirmed by the preamble of the Treaty which refers not only to the governments but to peoples. It
is also confirmed more specifically by the establishment of institutions endowed with sovereign
rights, the exercise of which affects member States and also their citizens. Furthermore, it must
be noted that the nations of the States brought together in the [Union] are called upon to
cooperate in the functioning of this [Union] though the intermediary of the European Parliament and
the Economic and Social Committee.
In addition the task assigned to the Court of Justice under Article [267], the object of which is
to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the
States have acknowledged that [European] law has an authority which can be invoked by their
national before those courts and tribunals. The conclusion to be drawn from this is that the
[Union] constitutes a new legal order of international law for the benefit of which the States have
limited their sovereign rights, albeit within limited fields, and the subjects of which comprise
not only Member States but also their national. Independently of the legislation of Member States,
[European] law therefore not only imposes obligations on individuals but is also intended to confer
upon them rights which become part of their legal heritage.

Direct effect and direct applicability
•Van Gend en Loos (Case 26/62)
•ECJ cut the umbilical cord with classic international law
•A12 is capable of creating personal rights
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•European legal order in a new legal order
•It is more than international law
•It has authority which can be invoked by citizens
•It poses the citizens obligations and confers rights, independently on the legislation of member
states

Repercussions of direct applicability
Not all norms are directly applicable: justiciable norms (can be applied by a public authority)
Test:
1.Clear provision
2.Unconditional (does not depend on subsequent legislation – automatic prohibition)
3.Absolute provision (does not allow reservations).
4.
4.
ECJ eventually moved to a more lenient test (widening the interpretation of 3 criteria) – to
simple: provision that can be applicable by a national court

Examples of direct applicability?
Defrenne: Each Member State shall ensure that the principle of equal pay for male and female
workers for equal work or work of equal value is applied.
Reyners: In order to attain freedom of establishment as regards a particular activity, the European
Parliament and the Council, acting in accordance with the ordinary legislative procedure and after
consulting the Economic and Social Committee, shall act by means of directives.
Van Duyn: a Member State, in imposing restrictions justified on grounds of public policy, is
entitled to take into account as a matter of personal conduct of the individual concerned
The prohibition on quantitative restrictions shall not preclude [national] prohibitions or
restrictions on imports, exports, or goods in transit justified on grounds of public morality,
public policy or public security.

1.Is it clear? Yes, in case of direct discrimination
2.Is it conditional on legislative action? No. European rights of establishment in A49 FTEU is DE
3.Relative probihition? Free movement of workers, dutch national, UK denying her an entry permit to
work at  the Church of Scientology
Defrenne: lower retirement age. This led to lower pension rights and that violated her right to
equal treatment on grounds of gender under article 119. CJEU: A119 has horizontal direct effect
Reyners: Dutch lawyer, applied to Bar of Belgium, free movement of services in A56. Is the legal
profession of avocat was wholly exempt under the Art 51 TFEU ? NO
Van Duyn: Scientology. Dutch national, denied entry permit to work at Church of Scientology. Free
Movement of Workers – not implemented by UK. GOV believes Scientology to be harmful to public
interest and mental health. Discouraged, but not illegal. Directive: only refusal based on personal
conduct – not the case
The European Court of Justice held that van Duyn could be denied entry if it was for reasons
related to her personal conduct, as outlined in the Directive 64/22/EEC. TEEC article 48 was
directly effective, even though the application of the provision was 'subject to judicial control'.
Furthermore, the Directive was directly effective against the UK government. First, it would be
incompatible with the binding effect of Directives to exclude the possibility of direct effect.
Second, the practical efficacy of the Directive would be reduced unless individuals could invoke
them before national courts. Third, because the ECJ has jurisdiction to give preliminary rulings
under TFEU article 267 (then TEEC article 177) on 'acts of the institutions... of the Union' this
implied all acts should be directly effective
BUT ALSO: Article 48 of the EEC treaty and Article 3 ( 1 ) of Directive no 64/221 must be
interpreted as meaning that a Member State, in imposing restrictions justified on grounds of public
policy, is entitled to take into account as a matter of personal conduct of the individual
concerned, the fact that the individual is associated with some body or organization the activities
of which the member state considers socially harmful but which are not unlawful in that state,
despite the fact that no restriction is placed upon nationals of the said Member State who wish to
take similar employment with the same body or organization.
Lenience towards new UK

Horizontal and Vertical Direct Effect
Van Gend: Treaties are theoretically allowed to impose obligations on individuals
Horizontal DE:
•Between individuals
•Treaty provisions (Familiapress v Bauer)
•Decisions and Regulations
•Two exceptions:
•1. Reg explicitly calls for a domestic act
•2. Reg is too general and needs a domestic act
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•Directives: binding on states, dualist
•Variola: sets out aim, not the road
•Francovich: vertical direct effect

Familiapress: A34 TFEU, prohibiting unjustified restriction on the free movement of gods. Civil
dispute between 2 companies: Bauer accused of violating the Austrian Law on Unfair Competittion by
publishin prize crossword puzzles: a sales technique deemed unfair. Invoked A 34 – Austrian
provision has to be disapplied in a civil rpoceedins
Francovich – State liability
Under the Insolvency Protection Directive 80/987 (now 2008/94/EC) EU Member States were expected to
enact provisions in their national law to provide for a minimum level of insurance for employees
who had wages unpaid if their employers went insolvent. Mr Francovich, who had worked
in Vicenza for CDN Elettronica SnC, was owed 6 million Lira, and Mrs Bonifaci and 33 of her
colleagues were owed 253 million Lira together after their company, Gaia Confezioni Srl, had gone
bankrupt. The Directive was meant to be implemented by 1983, but five years later they had been
paid nothing, as the company liquidators had informed them that no money was left. They brought a
claim against the Italian state, arguing that it must pay damages to compensate for their losses
instead, on account of a failure to implement the Directive.

Repercussions of direct applicability
Direct applicability => Direct effect and Supremacy of [EU] Law
Direct applicability: no transposing national provision is needed
Direct effect: sets out rights/obligations for individual (sufficiently precise and clear
provision)
Supremacy: only of those provisions, which have direct effect. I.e. not whole system of EU law,
but! Potentially also any norm of EU law, irrespective of its legal force

Supremacy of EU Law?
Two perspectives:
European
Absolute
National
Relative
Ultra vires control

European Perspective of Supremacy
Over domestic law
Fear of decentralization
Costa v ENEL
Principle of autonomous interpretation
Over constitutional law
Internationale Handelsgesellschaft
Solangene?
Over international treaties
A 351 TFEU
The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding
States, before the date of their accession, between one or more Member States on the one hand, and
one ore more on the other, shall not be affected by the provision of the Treaties.
Limits:
Obligations towards third states
Kadi: x derogation from principles of liberty, democracy and respect for human rights and
fundamental freedoms of A2 TEU
Matthiews: the fact that MS delegates part of its sovereignty on IO does not mean that it will stop
complying with FR

IHG: absolute character of supremacy.
GERM argues that uncertainty. Although Community regulations are not German national laws, but
legal rules pertaining to the Community, they must respect the elementary, fundamental rights
guaranteed by the German Constitution and the essential structural principles of national law.
Mr Kadi, a Saudi resident with assets in Sweden, and Al Barakaat, a charity for Somali refugees,
claimed that the freezing of their assets was unlawful. The seizures occurred without any court
hearing, right of redress or allegation of wrongdoing. The UN Security Council had adopted
resolutions under Chapter VII to freeze assets of people and groups associated with the Taliban
and Osama bin Laden. The EU adopted regulations to give effect to which Sweden gave effect.
The claimants were named in the resolution and the regulation. They claimed that the regulation
should be annulled under TFEU Article 263 and was a breach of human rights.
The Court of Justice held the regulation was invalid in EU law. The court had no jurisdiction to
review the legality of Security Council Resolutions, but it could review EU regulations. The
regulation was adopted to give effect to Member State obligations. Although under international law
Security Council Resolutions prevail, under EU law the hierarchy of norms differs. It rejected that
TFEU art 351 protected the Regulation from challenge. The Regulation was annulled in relation to
Kadi, but effect maintained for a limited period.

Primacy or Supremacy of EU Law?
Costa v ENEL (6/64)
 Italian Constitutional Court: in case of conflict, newer law prevails (nationalization statute
over Treaty of Rome)
Should EC law, the Treaty of Rome in particular, be considered dominant over national statutes?
Treaty’s provision on single market did not have direct effect -> only the Commission can bring a
case against Italy. HOWEVER, Mr Costa can turn to Italian courts and contest the compatibility of
national law with the EC law

Mr Costa, Italian, owned shares in Edisonvolta , he opposed nationalization of the electricity
sector in Italy. He argued tha nationalization of the ENEL company violated A21

Primacy or Supremacy of EU Law?
Costa v ENEL (6/64)
 Italian Constitutional Court: in case of conflict, newer law prevails (nationalization statute
over Treaty of Rome)
By contrast with ordinary international treaties, the E[U] 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 integration into the laws of each
Member State of provisions which derive from the [Union], and more generally the terms and the
spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a
unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity.
Such a measure cannot therefore be inconsistent with that legal system. The executive force of
[European] law cannot vary from one State to another in deference to subsequent domestic laws,
without jeopardizing the attainment of the objectives of the Treaty…It follows from all these
observations that the law stemming from the Treaty, an independent source of law, could not,
because of its special and original nature, be overridden by domestic legal provisions, however
framed, without being deprived of its character as [European] law and without the legal basis of
the [Union] itself being called into question.

Mr Costa, Italian, owned shares in Edisonvolta , he opposed nationalization of the electricity
sector in Italy. He argued tha nationalization of the ENEL company violated A21

Primacy or Supremacy of EU Law?
European view: supremacy
 confirmed in Internationale Handelsgesellschaft
Can European legislation violate fundamental rights as granted by the German Constitution?
Are the fundamental structural principles of national constitutions, including human rights, beyond
the scope of Union supremacy?
ECJ:  Recourse to the legal rules or concepts of national law in order to judge the validity of
measures adopted by the institutions of the [Union] would have an adverse effect on the uniformity
and efficiency of ]European] law. The validity of such measure can only be judged in the light of
[European] law.
The whole of European law prevails over the whole of national law

Repercussion of the Supremacy
Simmenthal II
What consequences flow from the direct applicability of a provision of [Union] law in the event of
incompatibility with a subsequent legislative provision of a Member State?
National courts are under a direct obligation to give immediate effect to European law.
Supremacy = rules of [European] law must be fully and uniformly applied in all the member states
from the date of their entry into force and for so long as they continue in force
Effect
Break (x)
Principle of precedence:

ITA const order: only SC or Parlm can repeal national legislation

Repercussion of the Supremacy
Principle of precedence (Simmenthal 106/77)
[I]n accordance with the principle of precedence of [European] law, the relationship between
provisions of the Treaty and directly applicable measures of the institutions on the one hand and
the national law of the Member Stats on the other is such that those provisions and measures not
only by their entry into force render automatically inapplicable any conflicting provision of
current national law but – in so far as they are an integral part of, and take precedence in, the
legal order applicable in the territory of each of the Member States – also preclude the valid
adoption of new legislative measures to the extent to which they would be incompatible with
[European] provisions.
= principle of executing force

ITA const order: only SC or Parlm can repeal national legislation
Second prong: Ministero delle Finanze v INCOGE 90: NO,incompatibility does not render these rules
non-existent. Only an obligation of non-application.

National challenges to Supremacy
Human rights
Competence limits

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