Supremacy of the EU and the Single Market

Supremacy of EU Law

In order for the EU to operate with some sort of authority over the Member states, its very existence means that it must take precedent over National Law. This has caused a fair amount of conflict between individuals and member states, specifically with the UK (having in their constitution the doctrine of Parliamentary Supremacy, which is now not so supreme).

There are a series of cases which represent this principle in different ways.

Van Gen den Loos (a recurring case throughout EU Law) showed that the EU law will over rule any past National law that was created. In a way it is similar to a national legislature bringing out a conflicting bit of legislation, the courts will give rise to the latter law. However, it is different from the National law as it does not render the national law repealed. It stays part of national law (unless it is actually repealed by the legislature) but the EU law will take precedence over it when being relied on it court.

Costa v ENEL is an infamous EU case which says that EU law will even take precedence over National law created after the EU law. If this was not the case, any law that the member state did not like, they would be able to essentially repeal it without authority from the EU. This would render the EU obsolete and in effect, non-binding on their member states. There would be no unity among the EU if national states could pick and choose which EU law to abide by.

The case of ‘Handelsgesellshaft’ went one step further and said that EU law would even take precedence over Constitutional law. This means that member states may have to change their constitution, the way that the country is run, and the general rules governing people of their member states to fit in line with EU law. This although is expected as the EU law needs to take precedent otherwise it will have no effect on member states, is a sizable request from the EU and is potentially going to create a lot of unrest in that country.

For example, looking at the USA (even though it is outside the EU), they are a prime example of a country that has a lot of opinions and can cause much unrest at a change in their constitution. They certainly would not like any other organisation to attempt to change their constitution, especially one that isn’t elected as a national leader of the country. Therefore, this is a big point for critical evaluation.

Even more of a relevant example is the British case of Factortame no 2. This is another infamous EU case relating to Spanish fisherman, fishing in British fishing waters. The ECJ rules that due to the fundamental free movement rights, the Spanish could continue fishing in the British waters. This was seen in many ways to be a constitutional change to the UK as they did not have ‘parliamentary supremacy’ any more. This is the view of one school of thought on the matter. Others retain the view that parliament is still supreme as they are the ones which gave the EU power, and they can repeal this at any time.

This is a big taking point at the moment as it can be said that it is exactly rules like this that lead the people the UK to vote against the UK in the referendum. It is evident that this is a side of the EU that can be seen by some to have gone too far from the original trade bloc of the European Economic Community.

This debate can also stretch into the EU creating constitutional law for its member states. For example, the 4 fundamental freedoms; goods, services, establishment, and workers, have all been imposed on each member states which have a big impact on all of the citizens of the EU. It gives certain rights to all of these citizens, which may or may not see positive.

On the one side, these freedoms encourage a health expansion of the EU’s economy. It gives everyone accesses to 28 other countries to work, trade, live and access very easily. The benefits of this have immense impacts on everyone living in a member state.

The down side of this is that some services may suffer as a result. For example, in the case of Factortame no 2, the British fishing industry now had to compete with the Spanish fishing industry, which made it suffer. This negatively impact on the British industry. The same can be said for some national services, for example the NHS, is a free health service in the UK, which potentially could be abused. It is a debate that occurred extensively throughout the Brexit campaigns (and we all know how that turned out).

The case of ‘Semmenthal’ rules that any national court can and should declare any national legislation incompatible with EU law. It is not only for the upper courts to make these decisions, and if they could feel this way incline, no matter on what level, then can and should made the declaration. This process will be dealt with when looking at the Article 267 reference, however from a supremacy point of view, it is important as it how’s that any court which deals with issues of minor importance, that may go no further than a magistrate’s court, or big issues that could go all the way to the supreme court can rely on EU law. It has been made accessible to everyone, and supreme in enforcing its citizens rights in any national courts.

 

The Single Market

There seems to be a lot of confusion as to whether the EU is a single market, common market, internal market… or any other market you can think of. The differences in this case are not so important. These phrases are used to describe the market of the EU, which I will refer to the Single Market.

The single market is the removal of all obstacles between member states and adopt a common policy towards all countries that are not EU member states. In addition to this, they provide fundamental freedoms such as those mentioned above, goods, services, establishment, workers, capital. This can also be seen to be a Customs Union.

There is also something known as the Free Trade area. All EU countries are a part of this, and they trade with non-EU countries without any trade barriers. Simply we are talking about the relationship between the EU and EFTA countries (Liechtenstein, Norway, Iceland and Switzerland). There countries trade with the EU without any barriers and pay no import and export tax. They are not part of the EU, and therefore they create their own trade deals with the rest of the world.

The Economic Union is the countries that have adopted the use of the Euro (the Eurozone) they adopt the same fiscal policy and have no difficulty in transferring between countries. The UK and Denmark are countries that have not adopted the Euro. They still benefit from Article 62 TFEU and have the free movement of capital, however due to the difference in currency and monetary policy in general, conversion rates rise and fall, and therefore they cannot be strictly included in this Economic Union.

The 4 main freedoms which are all located in the TFEU will all be explored in more depth in later posts. They are:

  1. Free movement of Goods Article 34
  2. Free movement of Workers Article 45
  3. Freedom Establishment Article 49
  4. Free movement of services Establishment Article 56

There is also the free movement of capital. This basically states that member should be able to set up a bank account in any member state as they would in their own national states, and transfer across boarders into that account free of charge. This I won’t be looking into in any further detail.

 

By Woodrow Cox

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