Establishing European Law's Superiority

Why and how the doctrine of supremacy of EU law has been developed through the jurisprudence of the Court of Justice of the European Union (CJEU) ?

The European law is designed in a way that it is placed at a superior position in respect to the law of member states in the entire European Community laws. The new world order is demanding new legal measures to incorporate international law to respective municipal laws ECJ primarily developed the ‘Doctrine of Supremacy’ only relying on the existing need to cater to the revolutionary changes in the legislative system. It has been argued by multiple research scholars that certain elements are a pre-requisite to gain the supremacy. Along with CJEU, the elements have been designed to ensure the position of European Law, firstly, through the position of prominence. The EU law must be higher in recognition than the law of member states in any case of conflict. European law must have complete independence in deciding cases which it applies to and especially, in cases there arises a conflict between the member states and the European Law, European Law must gain precedence over anything. however, the European law must abide by the guiding principles of European law and must not go beyond the spirit of it. It can declare its supremacy over the member states if the European Law has the power to tie the hands of member states and keeps the control over member states pertaining to the decision making of policies or legislative measures. Along with the flexibility to adhere by the principles and judgments set out by the European law and abide by the restrictions and limitations set out by the European Law.

The composition of European laws has also given birth to such supremacy with the treaties and the legislative policies which are designed in such a broad and vague manner, leaving sufficient room to build up on the law along with the changing times and need. The judges are more equipped and has the freedom to interpret the treaties making it an all-inclusive system.

In the case of Costa v. ENEL, it was established that the European Union law holds a significantly supreme position over the municipal or national law. It was further observed that there are two significant perceptions with respect to the connection between Community law and public law being made by the ECJ., has been an instrumental decision in order to establish supremacy of the European Law as the member states have limited sovereign powers since they are a part of the community and hence their powers are automatically limited.

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1. Chalmers, D et al (2015). ‘European Union Law’, pgs 204-215
2. Costa v ENEL [1964]
3. The Brudges Group, 2016, “Holding back the incoming tide: Why EU law has supremacy over national law and why attempts at reform will never succeed”, < https://www.brugesgroup.com/images/papers/eulawsupremeovernationallaw.pdf> accessed on 8th December, 2020.
4. Flaminio Costa v ENEL (Case C-6/64) [1964] ECR 585, 593

Hartley had discussed a few methods that were undertaken by the European law to have effective authority by mostly allowing to interpret and hold discussions over any new legal doctrine which when is placed before the court becomes a matter of critical importance. The court sufficiently deliberates the new issue and if it adheres by the core spirit of the law, it establishes the doctrine as a well formed principle. The doctrines are then followed and applied in cases that amy arise in future and relies on it, making it authoritative in a way. The decision in the case of Costa v. Enel had established the supreme position of the EU law which was also discussed in the case of Van Gen den Loos. This position of EU law also instilled a sense of dependency amongst individuals who could approach the court when there was conflict with their laws applied domestically. The court has also elaborated on the fact that it would be futile to rest the onus of decision making which could be applicable uniformly, on the member states. The Union was the right fit to handle the uniformity and align the spirit of EU law. If the member states had been at a higher position, the different positions and sensibilities of member states would fail to create a basis of unified law that would be applicable all over, and would only result in chaos. The judgment laid out in Simmenthal only substantiated this position of the court and strengthened their views.

Q. 2

A. How can the EU Regulation be relied upon by Damilola? Set out a brief plan using the IRAC method.

Ans.

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1. Hartley TC (2010). ‘The Foundations of European Union Law’, pg 74.
2. Van Gend en Loos [1963] E.C.R. 1., Case C-26/62
3. Amministazione delle Finanze dello Stato v. Simmenthal SpA [1978] E.C.R. 629.

Issue - This fictional scenario leaves a situation where a conflict between the Eu law and the national law arises. Therefore, the main issue that arises is, Should the (EU) Study Leave Regulation, 2018 prevail over the Italian legislation, Study and Training Entitlement in Education Provision, 2019?

Rule - The well proclaimed rule that has been accepted is the doctrine of supremacy. In cases there is a conflict between the European Law and the member states legislation, the EU law gains prominence over the national law, hence the ‘Doctrine of Supremacy.’

Analysis – In this case, Damilola is a working teaching assistant in a primary school situated in Rome. Along with her current employment, she is a student as well. The question arises as she has been ill and requires study leave from her employer. The EU adopted regulation under Study leave regulation Act 2018 states that any person who is employed in state schools are eligible for a leave of seven days, whereas Italy had passed a new legislation after the regulation adopted by EU in 2019 that only three days leave will be provided under the Study and Training Entitlement in Education provision 2019. In this case, the position of EU law had been made sufficiently clear in the case of Costa v. Entel, however, the position of court in the case of Simmental clarified and stated that the supreme authority of EU law affects any legislation either prior to the EU law or comes later to it. Since, in this scenario, Italian legislation Study and Training Entitlement in Education Provision, 2019 comes later to the EU legislation, the question might arise that the national legislation should be prioritized as was discussed in the Simmenthal case by Italian authorities and second issue was raised that since the law was not declared unconstitutional therefore it is eligible for application despite being in contradiction with its treaty obligations. However, the court finally held that it was mandatory that Italian legislation complies with its treaty obligation.

Conclusion – Since the legislation in question is an EU regulation, therefore, it has the power to directly enforce its laws over the national state like Italy in this scenario. Here, the position of Damilola Is sufficiently clear as individual rights concerned, as per the case of Van Gen den Loos, she should be protected under the treaty obligations entered into by Italy and the EU Regulation shall prevail and enforced , letting the employer to provide her with an extension of study leave.

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1. Supra 2
2. Ibid
3. Van Gend en Loos [1963] E.C.R. 1., Case C-26/62

b. If the legislation Damilola is seeking to rely upon was an EU Directive (for which the transposition date for implementation by Member States has passed), rather than an EU Regulation, explain how your plan under Question 2(a) would change.

Ans. The EU regulation is considered to have a binding effect as the legislation obliges its treaty members to follow but an EU directive does not have a binding effect. Rather, it is merely a goal that is set out to help member countries to devise laws keeping the guiding principle in mind while devising laws. The EU directive sets out the rule or a principle that gives the member countries a period of two years and in some cases longer to incorporate those laws in the domestic legislation. However, the date of transposition in this case has passed and in such a scenario, then Damilola would not be able to resort to the relaxation provided in the directive as it is mostly up to the domestic legislation to incorporate and the implement the laws. Damilola would be refused to get the extra leave for four days and may incur heavy loss professionally and personally. However, in the case of Francovich v Italy , it was held by CJEU that member states are liable to pay some amount of compensation as there was sufficient delay and discrepancy in implementing the law or transposing the law into national within the due time frame. The compensation is to be paid for harming the individual rights, in this case Damilola would be eligible for receiving compensation since she would have suffered significant loss. This rule of failure to transpose EU directive into the national legislation is often known as the “Rule in Francovich” and assumed as the liability of state.

1. Francovich v Italy (1991) C-6/90
2. Francovich and Bonifaci v Republic of Italy (Cases C-6 and 9/90) [1991] ECR I-5375

BIBLIOGRAPHY

CASES

• Van Gend en Loos [1963] E.C.R. 1., Case C-26/62
• Francovich v Italy (1991) C-6/90
• Flaminio Costa v ENEL (Case C-6/64) [1964] ECR 585, 593
• Francovich and Bonifaci v Republic of Italy (Cases C-6 and 9/90) [1991] ECR I-5375
• Van Gend en Loos [1963] E.C.R. 1., Case C-26/62
• Amministazione delle Finanze dello Stato v. Simmenthal SpA [1978] E.C.R. 629.
• Costa v ENEL [1964]

ARTICLES / JOURNALS

• Hartley TC (2010). ‘The Foundations of European Union Law’, pg 74.
• Chalmers, D et al (2015). ‘European Union Law’, pgs 204-215
• The Brudges Group, 2016, “Holding back the incoming tide: Why EU law has supremacy over national law and why attempts at reform will never succeed”, < https://www.brugesgroup.com/images/papers/eulawsupremeovernationallaw.pdf> accessed on 8th December, 2020.

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