Exam Answers on EU Law
(a)The UK Parliament wishes to challenge the draft Directive on the basis that it infringes the principle of subsidiarity. The UK Parliament has a system of scrutiny committees that are responsible to review the proposal established by the EU Commission. In the given scenario, the draft Directive touches on the area of ‘Research, Technological Development and Space’. According to Article 4 of Lisbon Treaty, the EU and Member States have shared competence in this field, but paragraph 3 further stipulates that the exercise of the EU’s competence in this field does not limit the competence of the Member States.
Therefore, the scrutiny committees may issue a reasoned opinion on the basis that the draft Directive has infringed the principle of subsidiarity set out in Article 5(3) of the Lisbon Treaty of European Union. According to Article 6 of Protocol 2, the UK committees must issue the reasoned opinion that oppose the draft Directive within eight weeks from the date of transmission. Here, the draft Directive was established on 15 December 2012 and thus the deadline for the UK Parliament to issue the reasoned opinion will be 9 February 2013.
It must be noted that, if at least one third of the national parliaments have given the reasoned opinion, it is considered as a ‘yellow card’ and the Commission can be required to review the draft Directive. However, in case of more than a simple majority, this is an orange card and this allows the European Parliament and the Council to reject the draft Directive before the first reading.
(b)The German Association of University Professors and Lecturers (hereinafter referred to as ‘the association’) wishes to challenge the regulation, in order for it to be declared invalid. There are two ways available: a direct action under Article 263 of the Treaty on the Functioning of the European Union (hereinafter referred to as ‘TFEU’); or an indirect action under Article 267 of TFEU.
Direct Action under Article 263
In order to strike down the directive successfully under Article 263, there are three procedural requirements: there is a legal act, the action is raised within the prescribed limit of two months and the applicant must have sufficient legal standing to initiate the action.
By virtue of Article 288 of the TFEU, a directive is a ‘legal act’ that fulfil the Article 263 requirement. We are told that the directive was adopted on 1 July 2013 and thus the latest date for the association to bring the action is 1 September 2013. Further, the association is a non-privileged applicant who has no automatic standing and thus it is necessary for the association to satisfy that the adopted Directive is of both the direct and individual concern to them. Nevertheless, as shown in the Salamander case, it may be extremely difficult for a non-privileged applicant to prove that a directive is of direct concern to him. According to Plaumann, it is likely that the directive casts no individual concern to the association as they cannot be differentiated from the other researchers. Thus, the action under Article 263 looks unlikely materialise to the association.
Indirect Action under Article 267
Alternatively, under Article 267, the association may have to be a party to an action in a national court and the court would have discretion as to whether or not to make a reference on this issue to the CJEU. According to Rau v BALM, the facts that the association has no standing under Article 263 would not affect their ability in bring an Article 267 action. But it is still not advisable for the association to bring an action under Article 267 as it has been pointed out by Advocate General Jacobs in UnioÌ’n de PequenÌƒos Agricultores that it is wrong to expect someone to ‘breach the law in order to gain access to justice’.
(c)Professor Moltisanti wishes to bring an action against Italian government for its failure to implement the directive. There are two actions available to him: the doctrine of direct effect; or the Francovich principle.
The Doctrine of Direct Effect
According to the leading case of Van Gen den Loos, in order for directive to give rise to direct effects, certain criteria has to be satisfied. First of all, as shown in Ratti, the court held that the applicant is only allowed to rely on a directive that the deadline for implementation has been expired. On the facts, the grant scheme runs from July 2014, this indicates that the deadline for transposition (1 November 2013) has already expired and thus Professor Moltisanti may be able to rely on the directive directly in the court.
Next, in Marshall v Southampton & SW Hampshire AHA, it was held that a directive could be invoked vertically against a public body. In the other words, Professor Moltisanti can rely on the directive vertically against the Italian government.
On the other hand, an alternative way that available for Professor Moltisanti is the principle established in the Francovich case that a right to damages against the member states is available to individuals if they have suffered loss as a result of the member state’s failure to implement a directive. This principle is further developed Factortame, where the court laid down the criteria in replying the Francovich principle that there must be a sufficiently serious breach and direct causal link can be established between the breach and the loss suffered by the individual.
Applying this to the facts, the failure to implement the directive is automatically a sufficiently serious breach within the SchoÌˆppenstedt formula and it is clearly that the Italian government’s failure to implement the directive makes Professor Moltisanti lost the opportunity to gain support under the scheme. Therefore, it is likely that he may seek redress under the Francovich principle.
The statement suggests that the principle of supremacy of EU law is merely a myth originated from the Court of Justice case law, where in fact the national courts have constantly challenged on this concept.
In this essay, we will deal with the principle of supremacy of EU law from both the Court of Justice and national courts’ perspectives and argue that the given statement is correct in the context that the supremacy principle enunciated by the Court of Justice is itself fictional and its application in the national courts is not absolute.
The Principle of Supremacy of EU law from the Court of Justice’s Perspective
When a State joins the European Union, it is considered that there will be a transfer of sovereignty for certain specific areas of policy from the state to the community. Nevertheless, the community treaty does not contain specific reference in the relationship between the EU law and national law and this leads to a situation where both law are in conflict.
Not surprisingly, the Court of Justice (hereinafter referred to as ‘CJEU’, previously known as the ‘European Court of Justice’, ‘ECJ’) is on the view that the EU law must prevail in such conflict. The court took its first step in preserving the uniformity of application of EU law among the Member States in the landmark case of Van Gend en Loos. The stance was affirmed in Costa v ENEL, where the ECJ held that the community has ‘created its own legal system which became an integral part of the legal systems of the Member States and which their courts are bound to apply’. The ECJ further added force to the supremacy principle in the Simmenthal case, where it held that the national courts must set aside the national law if it is in conflict with the community law.
At this point, it can be argued that the supremacy principle established by the CJEU is ‘fictional’ as it merely requires a disapplication of national law. In Factortame, the ECJ made clear that if there is a dispute between the national law and the community law, the national courts must set aside its national law, instead on striking down the provision as ultra vires. Furthermore, the supremacy principle from the CJEU’s perspective is not absolute and this was shown in the Asda Stores case in which the ECJ had forfeited the EU supremacy and applied the conflicting national law. 
On the other hand, because of the wide variation of the constitutional background between the member states, the national courts have responded differently in interpreting the supremacy principle into their own legal system.
The Principle of Supremacy of EU law from the National Courts’ Perspectives
There are mainly two approaches to the incorporation of EU law by the national courts, namely monist or dualist approaches.
In monist States, such as Belgium and France, all law is treated equally, it is not necessary for an international law to be implemented into national law and the national courts can apply the law
For states with a dualist system, such as Germany and United Kingdom, international law and national law are considered to be fundamentally distinct. This means that international law cannot be directly applied by the national courts but requires the translation into the national law.
As to give a clearer analysis, we will deal with the legal system of the member states separately:
Belgium provides a good example of acceptance of the supremacy of EU law based upon reasoning which is closest to that employed by the ECJ itself. Even though there has no provision in the Belgian Constitution that supports the supremacy of EU law, the Belgian Court demonstrated its willingness to accord the supremacy principle in Le Ski case. In this case, it was held that if there is a conflict between the Belgian Constitution and a provision under EU treaty that imposes direct effect in the national legal system, the EU law prevails.
Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the Belgian court’s perspective?
It is submitted that Belgium manages the supremacy principle of EU law with relatively ease. Can this be argued that as an evidence of the supremacy principle? Bribosa commented on this issue that the approach taken by the court was actually a consideration of Kompetenz-Kompetenz (competence-competence) doctrine but rather than the ruling of ECJ. In other words, instead of treating that the EU law is superior to the Belgian law, it may be more appropriate to recognise that the Belgian courts has sought to emerge the new community rule with its established domestic legal framework.
In France, the court’s willingness to accord the supremacy of EU law was shown in the Administration des Douanes case, where it was held that by virtue of Article 55 of the French Constitution, if there is a conflict between national law and a ratified international treaty, the latter should be give precedence over the former. This approach was only affirmed in Nicolo case where the court suggested that Article 55 enables the courts to review the validity of French legislation with the EU provisions and thus the community law should be given precedence over the national law.
Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the French court’s perspective?
Even though the French courts have recognised the supremacy of EU treaty, it is arguable that the supremacy of EU law in the context of French jurisdiction is not absolute. The Constitutional Council had made it clear in the reasoned Decision given on 9 April 1992 Maastricht I that France could derogate its sovereignty to the Union, only if the particular community rule is not contradictory to the French Constitution and will not violate the exercise of national sovereignty. Such reasoning can be regarded as putting a limitation to France’s acceptance of supremacy and thus it may casts ambiguity on the supremacy principle that derived from the CJEU’s ruling.
In Germany, the EU supremacy principle is shaped with the terms of Article 23 of the German Basic Law. In Internationale Handelsgesellschaft mbH v EVGF (Solange I), the Federal Constitutional Court held that although Article 23 allowed the transfer of legislative power to EU law, the German Constitution would still take priority over the EU treaty if the community has not removed the possible conflict of norms between EU law and the fundamental rights provision under the German Constitution. However, having considered the development of fundamental rights doctrine by the ECJ, the position has been altered in the case of Re Wuensche Handelsgesellschaft (Solange II), where it held stated that the court would no longer review EU provision in light of the German Constitution.
Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the German court’s perspective?
By observing the change of attitude of Federal Constitutional Court in adopting the supremacy principle, it is likely that the ECJ’s wish that the EU law should prevail over national law may be fulfilled. However, in has been made clear in Brunner v European Union Treaty the supremacy of EU law within German jurisdiction is not unconditional, the EU law will be applied only because the national law says it does.  Therefore, it may not be appropriate to say that the EU law is supreme over German domestic law because the German courts have not surrendered Germany sovereignty but merely fulfil the obligations of EU membership.
The situation becomes more complicated in the UK jurisdiction because of its doctrine of Parliamentary Sovereignty. As a dualist states, the EU treaty will only have effect in the UK legal system with the incorporation of UK Act. This led to the publication of the European Communities Act 1972 (hereinafter referred to as ‘ECA 1972’), whereby it incorporates the EU provisions into the English legal system. In R v Secretary of State for Transport, ex parte Factortame, Lord Bridge stated that it had ‘always been clear that it was the duty of a United Kingdom court when delivering final judgment, to override any rule of national law found to be in conflict with any directly enforceable rule of Community law’. Nevertheless, it must be noted that, the effect of this case would not actually nullify the existing UK legislation and this indicates that the UK national law is still superior to the EU law.
Is the Supremacy of EU law over national law a fantasy of the Court of Justice with reference to the British court’s perspective?
It is arguable that the EU law does not take precedence over the UK law since the community legislation may only be effective within the UK legal system with the incorporation of ECA 1972. Such approach has been adopted by Lord Justice Laws in the case of Thoburn v Sunderland City Council, where he pointed out that the relationship between the UK and the EU depends on UK law, not EU law. 
According to Maduro, ‘the acceptance of the supremacy of EU rules over national constitutional rules has not been unconditional’. It is apparent from the discussion above, despite the distinction between monistic and dualist system, the application of EU law under the national legal framework is ultimately influenced by the national law. Therefore, it might be true that the supremacy principle is a fantasy of the CJEU.
However, notwithstanding talk of any legal fiction, it can be observed from the case law that the national courts do give effect to supremacy of EU law. The fact that EU law has been consistently and uniformly applied in the member states’ courts today creates no real dispute over the application of supremacy principle in practice.
- Tables of cases
Aktien-Zuckerfabrik SchoÌˆppenstedt v Council (5/71)  ECR 975
Amministrazione delle Finanze dello Stato v Simmenthal (106/77)  ECR 629
Brasserie du PeÌ‚cheur/Factortame III (C-46/93 & 48/93)  ECR I-1029
Consorzio del Prosciutto di Parma and Another v Asda Stores Ltd and Another (C-108/01)  ECR I-5121
Costa v ENEL (6/64)  ECR 585
Francovich v Italy Republic (6/90)  ECR I-5357
Marshall v Southampton and South West Hampshire AHA (271/91)  ECR I-4367
Ministero Pubblico v Ratti (148/78)  ECR 1629
P UnioÌ’n de PequenÌƒos Agricultores v Council (C-50/00)  ECR I-6677
Plaumann & Co v Commission (25/62)  ECR 95
Rau v Bundesanstalt fuÌˆr Landswirtschaftliche Marktordnung (C-133/85)  ECR-2289
Salamander and others v European Parliament and Council (T-172 & 175-177/98)  ECR II- 2487
R v Secretary of State for Transport, ex parte Factortame Ltd and Others (C-213/89)  ECR 2433
Van Gend en Loos v Nederlandse Administratie der Belastingen (26/62)  ECR 1
Minister for Economic Affairs v SA Fromagerie Franco-Suisse ‘Le Ski’  CMLR 330
Administration des Douanes v SocieÌ’teÌ’ CafeÌ’s Jacques Vabre & J. Weigel et Cie. SARL  2 CMLR 336
Raoul Georges Nicolo and another  1 CMLR 173
Brunner v European Union Treaty  1 CMLR 57
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel  2 CMLR 540
Wünsche handelsgesellschaft,Re  3 CMLR 225
United Kingdom Cases
Thoburn v Sunderland City Council  QB 151
R v Secretary of State for Transport, ex parte Factortame  AC 603
- Table of Legislation
Consolidated Version of the Treaty on European Union  OJ C115/13, art 4
Consolidated Version of the Treaty on European Union  OJ C115/13, art 5
Consolidated Version of the Treaty on the Functioning of the European Union  OJ C115/47, art 263
Consolidated Version of the Treaty on the Functioning of the European Union  OJ C115/47, art 264
Consolidated Version of the Treaty on the Functioning of the European Union  OJ C115/47, art 267
Consolidated Version of the Treaty on the Functioning of the European Union  OJ C115/47, art 288
Protocol (No.2) on the Application of the Principle of Subsidiarity and Proportionality  OJ C 83/206, Art 6
Protocol (No.2) on the Application of the Principle of Subsidiarity and Proportionality  OJ C 83/206, Art 7
Conseil Constitutionnel, decision n.92-308 DC of 9 April 1992, Treaty of Maastricht I
French Constitution, art 55
Basic Law, art 24
United Kingdom Legislation
European Communities Act 1972
- Secondary Sources
Chalmers D, Davies G and Monti G, European Union Law (3rd edn, Cambridge University Press 2014)
Hartley T, European Union Law in a Global Context: Text, Cases and Materials (Cambridge University Press 2004)
Benvenisti E and Downs G, ‘The Premises, Assumptions, and Implication of Van Gend en Loos’  25 EJIL 85
Martinoco G, ‘Is the European Convention going to be ‘supreme’? A Comparative-constitutional overview of ECHR and EU law before national courts’  EJIL 401
Maduro M, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ 1 EJLS 2
Craig P, ‘The ECJ, National Courts and the Supremacy of Community Law’ <http://www.ecln.net/elements/conferences/bookrome/craig.pdf>
accessed 29 December 2014
 Protocol (No.2) on the Application of the Principle of Subsidiarity and Proportionality  OJ C 83/206, art 7.
 Ibid, art 6.
 Consolidated Version of the Treaty on the Functioning of the European Union  OJ C115/47, art 264.
 Ibid, art 263.
 Joined Cases T-172 & 175-177/98 Salamander and others v European Parliament and Council  ECR II- 2487.
 Case 25/62 Plaumann & Co v Commission  ECR 95.
 Case C-133/85 Rau v Bundesanstalt fuÌˆr Landswirtschaftliche Marktordnung  ECR-2289.
 Case C-50/00 P UnioÌ’n de PequenÌƒos Agricultores v Council  ECR I-6677, Opinion of AG Jacobs,
 Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen  ECR 1.
 Case 148/78, Ministero Pubblico v Ratti  ECR 1629.
 Case 271/91, Marshall v Southampton and South West Hampshire AHA  ECR I-4367.
 Case 6/90 Francovich v Italy Republic  ECR I-5357.
 Joined Cases C-46/93 & 48/93 Brasserie du PeÌ‚cheur/Factortame III  ECR I-1029.
 Case 5/71 Aktien-Zuckerfabrik SchoÌˆppenstedt v Council  ECR 975.
 Van Gend en Loos (n 10).
 Case 6/64 Costa v ENEL  ECR 585, 593.
 Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal  ECR 629, 21.
 Case C-213/89 R v Secretary of State for Transport, ex parte Factortame Ltd and Others  ECR 2433.
 Case C-108/01 Consorzio del Prosciutto di Parma and Another v Asda Stores Ltd and Another  ECR I-5121.
 Paul Craig, ‘The ECJ, National Courts and the Supremacy of Community Law’ <http://www.ecln.net/elements/conferences/bookrome/craig.pdf> accessed 29 December 2014.
 Eyal Benvenisti and George Downs, ‘The Premises, Assumptions, and Implication of Van Gend en Loos’  25 EJIL 85, <http://www.ejil.org/pdfs/25/1/2477.pdf> accessed 9 January 2014, citing Minister for Economic Affairs v SA Fromagerie Franco-Suisse ‘Le Ski’  CMLR 330, 347.
 Paul (n 21), citing H Bribosia, ‘Report on Belgium’, in A-M Slaughter, A Stone Sweet and J H H Weiler (eds), The European Court and National Courts, Doctrine and Jurisprudence (Oxford: Hart Publishing 1998) p.21-22.
 Paul (n 21), citing Administration des Douanes v SocieÌ’teÌ’ CafeÌ’s Jacques Vabre & J. Weigel et Cie. SARL  2 CMLR 336.
 Paul (n 21).
 Raoul Georges Nicolo and another  1 CMLR 173, as translation can be found in <http://www.utexas.edu/law/academics/centers/transnational/work_new/french/case.php?id=1440> accessed 9 January 2014.
Conseil Constitutionnel, decision n.92-308 DC of 9 April 1992, Treaty of Maastricht I, as translation can be found in <http://www.utexas.edu/law/academics/centers/transnational/work_new/french/case.php?id=998> accessed 9 January 2014.
 Giuseppe Martinoco, ‘Is the European Convention going to be ‘supreme’? A Comparative-constitutional overview of ECHR and EU law before national courts’  EJIL 401.
 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel  2 CMLR 540, as translation can be found in <http://www.utexas.edu/law/academics/centers/transnational/work_new/german/case.php?id=588> assessed 9 January 2014.
 Re Wünsche handelsgesellschaft  3 CMLR 225, 265, as translation can be found in
assessed 9 January 2014.
 Brunner v European Union Treaty  1 CMLR 57, as translation can be found in
<http://www.ecln.net/documents/Decisions-Germany/summary-maastricht.pdf> assessed 9 January 2014
 Trevor Hartley, European Union Law in a Global Context: Text, Cases and Materials (Cambridge University Press 2004) 159.
  AC 603 (HL) 658.
  QB 151, 69.
 Miguel Maduro, ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional Pluralism’ 1 EJLS 2.Order Now