Today the European Union (EU) consists of 27 Member States; it reaches from the Atlantic coast of Western Europe all the way to the Black Sea of Eastern Europe. In the European Union, the most important and closest collaboration between the Member States happens via the European Community (EC). The forerunner of the European Community dates back to the 1950s, the European Coal and Steel Community (ECSC). In the aftermath of the Second World War, Europe had seen and reaped the bitter fruits of nationalism and fascism and was keen to initiate a cooperation which would promote political stability and economic growth. The ECSC consisted of six countries, France, Germany, Italy and the Benelux States. The collaboration was not purely economical, instead the purpose of establishing a common coal and steel market was also to promote peace and rebuild the countries including Germany while keeping a close eye on it and creating interdependence among the countries.
The forerunner collaboration which now has grown to a massive one was from the start a supranational organization with its own independent institutions and judicial powers. Why then does the struggle on EC supremacy between the Community and the Member States still exist? What problems, if any, arise from EC supremacy? Firstly, some clarification is in place of what supremacy means; as the word suggests, it means that EC law, both primary and secondary, prevails over national law. In the doctrine, there have been suggestions of differentiating between the words ‘supremacy' and ‘primacy', and the European Court of Justice (ECJ) actually use ‘primacy'. In this paper, no such distinction is made because the majority of scholars use supremacy and also does not distinguish between the two terms, the words are used as synonyms to describe EC law prevalence over national law.
[...] Scope and Development of the Principle of Primacy / Supremacy of European Community Law Scope The Treaty of the European Community (ECT) does not contain any single provision, governing the relation between EC law and the national law of the Member States. The only provision, which may be argued to constitute a principle of supremacy but does not explicitly mention the same, is Art ECT. This article inter alia imposes a duty on the Member States, ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community”. [...]
[...] Art doesn't make distinctions between Community law and international law. The new Art. 88-1 creates an obligation for the parliament to participate in the EU. This was interpreted as including an obligation to implement and to respect the primacy of EC law: Republic shall participate in the European Communities and in the European Union constituted by States that have freely chosen by virtue of the Treaties that established them, to exercise some of their powers in common”. With this interpretation, the Conseil constitutionnel came to a different conclusion than in its earlier decisions. [...]
[...] This then must be interpreted to provide limits to the supremacy of EC law in the situation of a Community regulation or an ECJ judgment that would infringe such rights. Since the EU acknowledges the ECHR, this limitation is probably only theoretical.[49] What it means though is that Sweden, like for example Germany, has taken the position that the competence of the EU stems from the Member States and that these therefore are the ones who should decide its limitations. [...]
[...] The courts operate a balance between the supremacy of EC law and the Constitution. But it is always a compromise and the reasoning of the Courts reveals the contrast between developing a Community legal order, and the reluctance of state which wants to keep their sovereignty as far as possible. Sweden At first glance, Sweden seems to have accepted EC supremacy without any controversy whatsoever even though Sweden is a dualistic legal system.[46] There are several rulings where the Swedish courts have set aside national law for Community prevalence or interpreted national law in accordance with Community law.[47] Sweden enacted a law when it became a member of the Union. [...]
[...] The court ruled, that it has no jurisdiction under the conditions developed in the jurisprudence of Solange II and the followed case law in case of a national legal act implementing a Community act.[35] Thus, the German constitution and its catalogue of fundamental rights do not serve as legal examination criteria for any German legal act implementing Community law. It is essential that the legal act in question is determined by Community law as regards content. While this legal opinion has been supported for a long time by German law scholars, it has not been the opinion of the BVerfG until this decree. Before the decree, the BVerfG made a distinction between single implementing acts (administrative acts) and collective implementing acts (legislation). [...]
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