EUROPEAN UNION LAW

W.B. Fisch, Winter 2006
Assignment #12

 

Ch. 8. THE RECEPTION OF COMMUNITY LAW IN THE MEMBER STATES

A. Community Law in France

  • Constitution of 1958, arts. 54 and 55, p. 284
    • what is the status of treaties in French law, as against constitution and statutes?
    • how big a hurdle is revising the Constitution? (Const. Art. 89)
      • proposal from President or a member of Parliament
      • adoption
        • 2-house passage, followed by referendum, or
        • 3/5 vote of Parliament assembled in Congress (joint session)
  • Power of judicial constitutional review in France
    • Regular courts have no power of constitutional review of legislation
    • Constitutional Council (1958) has pre-promulgation review of legislation
    • Administrative courts have power of constitutional review over executive acts, which by 1958 Const. includes much legislation in the form of decrees
    • All courts apply rules for resolving conflicts between laws, including those of equivalent status
  • CAFES JACQUES VABRE, p. 285 (Fr.Ct.Cass. 1975)
    • conflict between customs law and Art. 95 EC
    • should the court rely on Const. art. 55? Why not? What alternative theory does the Procureur Generale propose?
      • does art. 55 make treaty law superior to municipal law, regardless of time?
      • can the courts apply the reciprocity requirement?
        • generally?
        • to the EC treaty?
  • Boisdet, n. 4 p. 287 (Fr. Cons. d'Etat 1990).
    • under French law, can the Council of State give primacy to EC law over a statute?
    • CE has no power of constitutional review of statutes (lois)
    • Semoules de France (1968) held that it also has no power to ignore a statute in favor of treaty law
    • did the CE invalidate the statute delegating power to the Ministry, or
      • the Ministry's exercise of that power?
      • the Ministry's interpretation of the delegating statute?
  • COHN-BENDIT, p. 289 (CE 1978)
    • does the CE have the power to refer questions of EC law to the ECJ for preliminary ruling?
    • did the administrative court have the power to give primacy to an unimplemented Council directive, over an otherwise authorized administrative act?
    • cf. Federation Francaise, n. 2 p. 290 (1984): regulation contrary to the objectives of a directive is to be annulled


B. Community Law in the Netherlands, Belgium and Luxembourg

  • Netherlands: arts. 92-94 Constitution give community law, as treaty and international institution law, primacy over national law
  • Belgium:
    • Constitution art. 34 (1970): does it go beyond incorporating IL into national law?
    • Fromagerie Franco-Suisse, p. 293 (Belgian Ct. Cass. 1971): does the fact that a treaty is adopted by legislation make it equivalent in status to a statute?
    • ORFINGER V. BELGIUM, p. 295 (Belg. Cons. d'Etat 2000): does EC law take precedence over a provision of the Belgian constitution requiring citizenship for civil service appointments?
  • Luxembourg: in general, treaty law is superior to legislation

G. Community Law in the United Kingdom

  • no written constitution, Parliamentary supremacy, one Parliament can't limit the next
  • strict dualism: treaties have no domestic effect without Act of Parliament
  • European Communities Act of 1972
    • does it provide for "direct effect"?
    • does it ensure against subsequent inconsistent legislation?
  • MACARTHYS LTD. V. SMITH, p. 338 (C.A. 1979).
    • what was the difference of opinion between Lord Denning and the other judges?
      • on what the UK statute and EC art. 119 mean?
      • on the necessity for a reference to the ECJ?
    • what principle of interpretation do the UK courts adopt with respect to Acts of Parliament in relation to Community law?
      • those that implement Community law (that they should interpreted "teleologically")?
      • those that may be inconsistent with Community law (that they should be interpreted so as to avoid the conflict, in so far as possible)?
  • FACTORTAME, p. 342 (HL 1990). If Community law requires that national courts implement it and invalidate national laws that conflict with it, regardless of national rules of procedure limiting the power of courts to enjoin legislation, is there any room for argument with that position by the UK? Did the HL clearly address the issue?
  • THOBURN V. SUNDERLAND CITY COUNCIL, Supp p. 104 (QB DC 2003)
    • Can you state exactly how Justice Laws disagrees with the argument of the City Council’s counsel as to the effect of the European Communities Act?
    • What is the end result of the case?
  • UK Human Rights Act of 1998 (eff. 2000)
    • does it do away with Parliamentary supremacy?
    • how does it deal with that problem?
      • how does a “declaration of incompatibility” differ from invalidation?
      • what role does ECtHR interpretation of the Convention play in the process of declaring incompatibility?
      • what courts have the power to declare incompatibility?