Constitution française. Cours. Droit européen. Droit communautaire
This quotation makes truly central the question of the relations between Community Law and national laws. Community Law enjoys the privilege of primacy over national laws, as a result of the Costa judgment of the European Court of Justice (ECJ) in 1964. In contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on coming into force , became an integral part of the legal system of the member states and which their courts are bound to apply. This was reinforced by the prior Van Gend En Loos Act on direct effect of Community Law (1963), the Internationale Handgesellschaft Act of 1970, the Nold Act of 1974, and the Simmenthal Act of 1978 to name but a few. This European Institution has established a broad application of the "primacy" and "direct effect" theories. More recently, it was the final project for European Constitution, in article I-6, that had re-affirmed this principle. The Lisbon Treaty's position is however less clear: only in the annex 17, does it state that the primacy principle is a "fundamental principle".
Primacy is indeed an "essential condition" (P. Pescatore) for Community Law; otherwise it has no reason to exist. Member States have transferred sovereignty to the European Union, whose legal order cannot hence be overridden by national laws. In this matter, the French case is particular: apart from the numerous times France has been an impediment to European Integration, it was only in 1992, with the addition of title XV to the Constitution that Europe entered the French supreme law. Indeed the Constitution, which is accorded supreme power in France, is the warrant of the national sovereignty, while Community Law truly puts borders to it. As a result, conflicts between the two legal orders cannot be avoided.
[...] In addition, it is placed away” from the first title which shows that little importance is given to Community law and European Integration within the French normative system. Article 88-1, added in 1992 and revised since, states that Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union, as they result from the treaty signed in Lisbon on 13 December, 2007.” The inclusion of this article was a significant improvement, because it officially acknowledged that France accepted to be part of an organization which would necessarily need to be transferred sovereign powers from its Member States. [...]
[...] What are, hence, the relations between Community Law and the French Constitution? Have they ever managed to cope with one another? We will first demonstrate that what is written in the text is an initial source of ambiguities, and that they are reinforced by the action of the French supreme institutions. I.THE CONSTITUTIONNAL TEXT ALREADY INCLUDES AMBIGUITIES The constituents gave little place to Europe, and showed a moderated will of its supremacy. The Constitution written in 1946 for the IVth Republic seemed to welcome and totally accept Community Law. [...]
[...] Community Law enjoys the privilege of Primacy upon national laws, as a result of the Costa judgment of the European Court of Justice (ECJ) in 1964 contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal system of the member states and which their courts are bound to apply”). This was reinforced by the prior Van Gend En Loos Act on direct effect of Community Law (1963), the Internationale Handgesellschaft Act of 1970, the Nold Act of 1974, and the Simmenthal Act of 1978 to name but a few. This European Institution has established a broad application of the “primacy” and “direct effect” theories. More recently, it was the final project for European Constitution, in article that had re-affirmed this principle. [...]
[...] This was reinforced by the decision of September 3rd, 1986: il appartient aux divers organes de l'Etat de veiller à l'application des conventions internationales dans la cadre de leurs compétences respectives The “Cour de cassation” was also understanding: in May 1975 with the Jacques Vabre judgment, it admitted that Community Law prevails over posterior national laws. This decision was however based not only on the specificity of Community Law, but also on the article 55 of the Constitution. On that matter, the most difficult body to convince was notwithstanding the Council of State (the supreme administrative court): already in 1968, it refused to take into account the primacy of Community Law in the famous “Semoules” judgment. [...]
[...] And this position was taken in spite of the 2000 Tanja Kreil ruling of the European Court of Justice, which stated that Community Law would prevail over article 12A of the German Fundamental Law, that is, over any Constitution. The Constitutional Court often had to face this challenge of primacy not only with the judicial review of Treaties, but also with the control of transfer laws. A breakthrough decision was made on 10th June 2004 with the judgment related to the law on digital economy. [...]
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