Law of the European Union Essay Example | Topics and Well Written Essays - 2000 words

Law of the European Union - Essay ExampleThe doctrine of pre-emption differs from the Supremacy clause of EC fairness ruled in Costa v. ENEL4 in that the latter is a guide when cardinal existing norms regulating the same thing be in conflict,5 whereas pre-emption consists in determining whether in that location is a conflict between a depicted object measure, be it in application or decision, and a rule of lodge law.In a further step, in ( discipline 11/70) Inter field of studye Handelsgesellschaft GmbH6, the Court held that Community law took precedence even over a fundamental rule in the German national constitution. The clearest story of the implications of the supremacy of Community law came in (Case 106/77) Simmenthal SpA (No. 2)7 where the Court held that national courts, even a belittled court of first instance, have a duty to set forth provisions of national law, which are incompatible with EC law. There was no need to wait for the national law to be revise in line with national constitutional procedures the national rule had to be set aside forthwith if it conflicted with a directly applicable or directly effective Community provision. Nor does the obligation to set aside conflicting national rules only apply to national courts even an administrative agency dealing with a national social insurance scheme was held to be required to do so in Case C-118/00 Larsy v INASTI8. Although the national measure is rendered inapplicable, this does not absolve the subdivision State from the need formally to revolutionize it.In Case 22-70 the ERTA case (European Road Transport Agreement) the ECJ decided that where the EC concludes a treaty in pursuance of a common policy (Transport, in this case), the possibility of concurrent authority on the part of MS towards non-member states is excluded and any other purported exercise of concurrently authority will be over ridden to the extent that it conflicts with Community law. However, the ECJ develop pre-emp tion legal principle. The Court first formulated a principle of pre-emption in the ERTA case where the Court held that once a Community common policy has been initiated,9 Community competence pre-empts Member State competence. Subsequently in Costa v. ENEL10, the principle of pre-emption has been made pragmatic and more than flexible. In the interests of legal certainty, the Court said that Member States must also repeal the offending national rule (Case 167/73) Commission v France (French Merchant Seamen)11.Even if it is not yet clear whether a soul actually has a right which they claim under community law (i.e. it is a putative right, not a definite one), the doctrine of supremacy requires a national court to set aside any national procedural rules which might prevent them from getting the full benefit of the Community right if it IS eventually demonstrate that they have itThis was laid down in the case (C-213/89) R v Secretary of State for Transport, ex parte Factortame Ltd an d others12. Spanish fishermen claimed that the UKs Merchant Shipping Act breached a number of EC Treaty articles and wrongly prevented them from look for in British waters. They asked for interim relief (an injunction setting aside the offending clauses of the Act unfinished the full hearing of the case). The problem was that under English law, courts could not