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Which Doctrine has had the Bigger Impact on EU law, Direct Effect or Supremacy

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The doctrines of the supremacy of the European Union (EU) and of the direct effect of EU law are both based on the competence of the EU . The EU can act only within the limits of its competence, and has them only as much as entrusted its Member
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  Dublin Institute of Technology   ARROW@DIT R$L4 2016-6  Which Doctrine has had the Bigger Impact on EUlaw, Direct Efect or Supremacy?  Adrian Berski  Dublin Institute of Technology  , #.!$@+5#.$ F**4 ' # ##* 4 :'9://4.#.$/"'*4$P % '$E$ L4 C++ 8 R$  !&'  5 % %$$ # $ ""$ !5 '$ L4  ARROW@DIT. I ' !$$ ""$$# % "*  R$ !5 '$# #+ % ARROW@DIT. F +$ %+, *$$"" 5$.#$+#@#.$, 4.#+@#.$, !.4##@#.$.8 4  *"$$# #$ C$$ C++ A9!-N"++$"*-S'$ A*$ 3.0 L"$$ R$"++$#$# C B$, A. (2016)W'"' #"$ ' '# '$ !&&$ +"  EU *4, #$" $7$"  $+"5? R$ $$# % S"'* % L&&$, L4 # S"* S"$"$, D!* I$ % T$"'*&5, 2016.    Which doctrine has had the bigger impact on EU law, direct effect or supremacy? Contents Situational Analysis and Introductory Remarks ......................................................... 1   1. Determinants of the Doctrine of the Supremacy of the European Union Law ...... 2   2. Determinants of the Doctrine of the Direct Effect of the European Union Law .... 5   3. Bilateral Relations and Impacts between the Two Doctrines  –   Interpretation of Results ......................................................................................................................... 7   List of Sources ............................................................................................................ 9    1 Situational Analysis and Introductory Remarks The doctrines of the supremacy of the European Union (EU) and of the direct effect of EU law are both based on the competence of the EU . The EU can act only within the limits of its competence, and has them only as much as entrusted its Member States. Before this state of affairs, the competences of the EU were regulated by Articles 5 and 7 of the Treaty Establishing the European Community (Consolidated Version, 2002) 1 : The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein[…]The tasks entrusted to the Community shall be carried out by the following institutions:[…] Each institution shall act within the limits of the powers conferred upon it by this Treaty. The current treaties are linked to the above rules. For example, Article 4 in paragraph 1 of the Consolidated Version of the Treaty on EU states that: “In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States ” 2 . The main purpose of this essay is to analyse which doctrine has had the bigger impact on EU law: direct effect or supremacy. The essay consists of an introductory section which sets the context, three chapters and a list of sources. The first chapter analyses and interprets the doctrine of the supremacy of EU law. It provides a clear definition of the doctrine of supremacy, supported by relevant case law. In addition, it presents a historic account of the determination of the supremacy doctrine. Determinants of the doctrine of the direct effect of EU law is the topic of the second chapter. In this section, the author explains the mechanism of the doctrine of the direct effect and outlines the conditions for direct effect. Finally, it provides information regarding the monist and dualist systems of law ,and the difference between the vertical and horizontal effects. 1   Treaty establishing the European Community (Consolidated version 2002) , Official Journal C 325, 24/12/2002 P. 0033  –   0184. 2   Consolidated version of the Treaty on European Union , Official Journal C 326 , 26/10/2012 P. 0001  –   0390.  2 The third chapter interprets the results and attempts to answer to the question: “ Which doctrine has had the bigger impact on EU law, direct effect or supremacy? ”  This question is answered by using the integral methodology of research, recognised within the social sciences and law. In this instance, the comparative method was relevant to presenting the bilateral relations between both doctrines and their impacts. 1. Determinants of the Doctrine of the Supremacy of the European Union Law The doctrine of the supremacy of EU law is the principle that protects the competences of the EU. In the case of conflict between domestic (national) law and EU law, the second prevails. Therefore, if the European law fully adjusts the particular area, the national legislation is unacceptable. The above statement is regulated by the Article 2.2 of the Treaty on the EU and the Treaty on the Functioning of the EU 3 : When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence. This rule should be treated as the doctrine of pre-emption, which is characteristic of American law and is adopted by the EU legislation 4 . One of the most important cases, which determines the doctrine of the supremacy and its relationship with the doctrine of pre-emption, is the Commission of the European Communities v Ireland 5 . In this case, the Commission complained that Ireland had infringed the exclusive competence of the Court of Justice of the European Union 3   Consolidated versions of the Treaty on the Functioning of the European Union , Official Journal C 326, 26/10/2012 P. 0001  –   0390. 4    A doctrine based on the Supremacy Clause of the U.S. Constitution that holds that certain matters are of such a national, as opposed to local, character that federal laws preempt or take precedence over state laws. As such, a state may not pass a law inconsistent with the federal law. ,The Legal Dictionary, [online:] [http://legal-dictionary.thefreedictionary.com/preemption], acc. 20.03.2016. 5   Case 459/03 Commission of the European Communities v Ireland [2006] ECR 04635.  3 (previously ECJ and now CJEU) to settlement on any disputes concerning the interpretation and application of European law. This particular case concerned the dispute which Ireland brought against the United Kingdom (UK), to the International Court of Arbitration (the Court), acting on the basis of the United Nations Convention on the Law of the Sea 1982 6 . The CJEU held that the “Protection and preservation of the marine environment” is a shared competence of the EU in external affairs. Moreover, the CJEU stated that there are EU Directives related to the dispute, and that the Union is also a party to the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) 7 . Based on that, the CJEU is the only proper court to settle this matter. Article 292 of the Treaty Establishing the European Community was violated by Ireland 8 . This kind of violation leads to the breach some of the responsibilities by EU member states, which is defined in the Treaties. This may interfere with the autonomy of the EU legal order. The Commission of the European Communities v Ireland case was an important affair, which drafted the foundation for the supremacy doctrine 9 . The proper and most common definition of the doctrine of the supremacy of EU law can be found in the significant Italian case, Costa v Enel 10 . This case presented a specific clash between European law and domestic regulations. The CJEU stressed that in the case of conflict between the national law and the European the latter was supreme. This is because nothing should jeopardise the community nature of the European law or undermine the legal foundation of the EU 11 : […] the executive force of community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the treaty set out in article 5 (2) and giving rise to the discrimination prohibited by article 7 […] By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a 6   United Nations Convention on the Law of the Sea 1982 , [online:] [http://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf], acc. 25.2.2016. 7   Convention for the protection of the marine environment of the North-East Atlantic  (OSPAR Convention), [online:] [http://www.ospar.org/convention/text], acc. 28.2.2016. 8   Treaty establishing the European Community, op cit. 9   Commission of  , op cit. 10   Case 6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585. 11  Ibidem.
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