question 7. Van Gend en Loos. sovereignty.


Question 7 Some commentators argue that the judgments in Van Gend en Loos and Costa make it clear that once the transfer of sovereign rights is completed by the ratification of the Treaty, these sovereign rights have been relinquished to the Community [EU] and are amalgamated in the hands of a new legal entity. Under this new order ‘the effect on national law occurs as a result of a breach or a breakthrough of sovereignty. In other words, the result of this constitutive process is that when a member state enacts law that is contrary to directly applicable Community [EU] law, it attempts to act beyond and outside its sovereign rights and thus its law is a nullity’. (E.Stein) To what extent does EU Law violate national sovereignty? Discuss, with reference to the doctrine of supremacy.








General remarks This question refers to the constitutional implications of the supremacy and its impact on uniform application of EU law. Law cases, reports and other references the examiners would expect you to use C-6/64 Costa v ENEL [1964] ECR 585; C-106/77 Simmenthal (No 2) [1978] ECR 629; Joined Cases C-6 and C-9/90 Francovich [1991] ECR I-5357. Common errors Simply listing cases without discussing their implications. A good answer to this question would… discuss the significance of the doctrine of supremacy and in particular its impact on the use of international treaties and the new concept of limited sovereignty. A reflection on the very rigid stance adopted by the Court in cases such as Costa and Simmenthal should be developed as the question clearly invites you to reflect on the strategic use of supremacy to ensure the effective and uniform application of EU law via national courts. A case such as Francovich on state liability can also provide some useful pointers. Poor answers to this question… merely listed the requirements for direct effect of Treaty, Articles, regulations and directives. Did not discuss the implication of supremacy. Student extract The necessity of the Member States consent] can be seen in Brenner in which after the Maastricht Treaty, the German Constitution was still held to be sovereign. This judgment implies that while the Member State have give LA3024 EU law 8 up sovereignty that can always take it back and therefore they can be considered as the ‘Masters of the Treaties ‘ so they have not truly lost their sovereignty. One must also consider that the EU law is not truly sovereign. Firstly as it has only limited competence ie it only affects certain areas of the legislation of Member states, some areas of national soveireignity are left untouched. Secondly Member states are allowed by the Treaty itself to derogate from some provisions of EU law on the basis of arguments such a cultural and social differences (BWIN) or public safety (Italian mopeds) . Comment on extract This essay is generally good. In passages not quoted here, the candidate analyses the seminal cases on supremacy such as Costa v ENEL and Simmenthal. Then the candidate turns to some critical issues and asks the question: what are the possible limits of the supremacy doctrine? The candidate does this cleverly, by referring to the reaction of national courts (using the most prestigious – the German constitutional court) and by reminding us that the EU does not have unlimited competence and that member states still enjoys some ‘pockets ‘of sovereignty as EU law itself allows them to derogate from certain basic EU principle to protect their aims. The essay shows, therefore, a capacity to not only analyse the specific issue (EU doctrine – national courts reaction) but to link it to other parts of the syllabus showing an overall command of the topic. On the minus side, the style is slightly too informal and sometimes the passages could have been better written. The mark is in the 2.1 range. Interpretation of the question: very good Relevance of the answer to the question: very good Substantive knowledge: good Use of authorities: good Articulation of argument: good Accuracy of information: good Clarity of expression: satisfactory Legibility: good


About Calers

Born Belfast 1971. I read history at Edinburgh. I did a Master's at UCL. I have semi-libertarian right wing opinions. I am married with a daughter and a son. I am allergic to cats. I am the falling hope of the not so stern and somewhat bending Tories. I am a legal beagle rather than and eagle. Big up the Commonwealth of Nations.

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