Tuesday, March 22, 2005

Supremacy of the European Union Law

The EC Treaty is considered an integral part of the legal system of the Member States. Such a status implies that the Treaty is applied in the court system of each Member States.

Art. 5 of the Treaty requires Member States to “take all appropriate measures to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks”. Member States “shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.”

The Court of Justice (ECJ) has a jurisdiction on such matters. In the Costa v Enel (Case 6/64) 1964, the ECJ ruled that there is a “permanent limitation” of sovereign rights for Member States.

In 1962, the Italian government passed a law to nationalize the Electricity industry. The law created Nazional Energia Electrico (ENEL). Costa, a citizen, refused to pay his electric bill, on the basis that the new law violated the Italian Constitution and the EEC Treaty.

The Italian Constitution Court ruled that the Treaty was a subordinate to any Italian legislation. The ECJ addressed that issue by affirming that such an action by the Italian court would jeopardize the attainment of the objectives of the Treaty set out in Article 5(2) and causes discrimination, which prohibited by Art. 7.

Art. 189 of the Treaty give precedence to Community law. Regulations issued by Community institutions for example are “binding” and “directly applicable in all Member States.

In 1998 ruling, the ECJ held that a national law adopted after an EC law with which it is incompatible, the national law should be regarded as non-existent. (See Simmenthal in Ministero della Finanze v In. Co. Ge., Case C-10-22/97.) The ECJ considers the effect of EC law as creating a “new legal order.”

For further reading on this subject, see D. Curtin, Directives: The Effectiveness of Judicial Protection of Individual Rights, 27 Common Market L. Review 709 (1990). See also D. Wyatt, New Legal Order, or Old?, 7 Eur. L. Rev. 147 (1982.)

Gabriel Sawma

Copyright 2005 Gabriel Sawma. ALL RIGHTS RESERVED

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