European Law versus National Law

Concept
European Court of Justice
Principle of Supremacy
Principle of Direct and Immediate Applicability
Principle of Subsidiarity
Limitations of the Community Law

Romanian Law

Legal basis for the adoption of Community Law

European Union Law with regard to National Law

Concept
The European Union (EU) is constantly accused of invading the nooks and crannies of
national life. In 1974 Lord Denning famously compared what is now EU law to an incoming
tide that cannot be held back. By 1990 he considered EU law had become a tidal wave
bringing down our sea walls and flowing inland over our fields and housesto the dismay of
all. More generally, citizens lament the erosion of national sovereignty in areas such as
policing, border control and national security; they feel too much politically sensitive
decisionmaking occurs at EU level. Concurrent with the claim that the EU does too much, is a
claim that the EU does not do enough. As the 2001 Laeken Declaration recognises, citizens
demand that the EU be empowered to do something about key issues such as terrorism,
immigration, employment and the environment.
European Union Law designates the juridical norms which apply in the juridical order
of the European Union, comprised in the institutive treaties of the European CommunityParis and Rome, in the treatises that have modified the institutive treatises Single European
Act, Treaty of Accession, Treaty of Maastricht, Treaty of Amsterdam, Treaty of Nice, Treaty
of Lisbon, as well as other communal acts adopted by the European institutions - directives,
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decisions, regulations and so on. The European law represents a new juridical order,
autonomous from the international order and in the same time integrated in the juridical
system of the member states. The primary source of law is considered to be the first three
institutive treatise and the treatises that brought some changes to them. Whereas, we call the
derived legislation, those acts that are adopted based on the European treaties. At the
beginning, the first European juridical norms were the result of the sovereign will of the
member states, which, through classical international treaties, agreed to give away part of
their sovereignty and started to obey the will of supranational institutions. Later on, these
institutions created, by their own power, norms that are applied at a supranational level.
The European law, being, in a direct manner (treaties) or indirect (adopted acts) the creation
of the member states, can be understood in the following context
a) It is a supranational law
b) It is a legislation distinct from the internal law of the member states
c) It is at the same time, integrated in the internal law of the member states, in the
national juridical order.

European Court of Justice

Concept
It is the fourth European institution with headquarters in Luxembourg and has the mission to
apply, interpret and safeguard the community law throughout the whole territory of the
European Union. The European judges cannot be influenced in their decisions by their
belonging to a member state, and they must follow the community interest. The litigations
brought before it are between European institutions, between European Commission and
member states, between member states, or, between natural or juridical persons and the
European Union. All litigations have civil or administrative nature, as the Court does not have
criminal competences.
The Court is formed by 28 judges, one for each member state. It is also assisted by
Advocates General, the Council of the European Union having the possibility to increase their
number by unanimity vote to the proposal of the Court.
The Court performs two functions
a) A jurisdictional function; 1. When it behaves as a constitutional court, judging the
recourses against an European institution or a member state that does not fulfill its
obligations from the treaties or when it interprets community acts. 2. When it behaves
as an administrative court, controlling the legality of community acts and judging the
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recourses of community officials. 3. When it exercises the functions of civil

jurisdiction, solving the cases that have as object the granting material damage. 4.
When it acts as a court of appeal, judging the recourses against the decisions of the
General Court (known before as the Court of First Instance).
b) A consultative function, as it issues notifications in the case when the revision of
treatise is debated or the need to complete international accords.

Principle of Supremacy
The Community Law is applicable with priority in national juridical order of the member
states, over the internal law of them. The supremacy of the European law implies 2 things:
a) Through later national laws (or other normative acts) it cannot be modified or
abrogated community normative dispositions, any such rule being null and
inapplicable.
b) Later community norms modify or make inapplicable the national juridical norms. The
administration and the national judges will assure the necessary correlation and will
leave inapplicable, if such be the case, the internal norms contrary to the community
law.
The founding treatise are silent on the issue of priority between national and community law.
The European Court of Justice (ECJ) had no hesitation in declaring that the community law
must take priority over, and supersede any national provision which clashes with the
community law. This was established in the case Costa vs. E.N.E.L. Primacy, at least as
asserted by the ECJ, is over both ordinary national law and national constitutional law of
Member States, even when the national constitutional law refers to the protection of the
human rights or to the internal structure of the member states. It follows from the principle of
supremacy that a national court is bound to enforce community law and give full effect to it, if
necessary refusing on its own motion to apply any conflicting provision of national
legislation. When faced with a national provision which clashes with Community law, a
national court should apply community law and should not wait for annulment or repeal of
inconsistent national law by domestic legislatures or constitutional organs. The doctrine of
supremacy necessarily limits the sovereign right of the Member States.
There is no mention of the supremacy of Community law in the founding Treaties. The
absence of any express provision is not, however, a gap in the Community law but a result of
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diplomacy and caution. Indeed, an express provision would have confirmed the federal nature
of the community and thus dissuaded some member states from acceding to the Communities.
For this reason less controversial phraseology was used, for example, in article 249 EC, which
confers binding effect upon measures adopted by the EC institutions, and in article 10 EC,
which requires that member states abstain from taking measures capable of compromising the
attainment of the objectives of the Treaty.
The supremacy of the community law is based on the fact that, contrary to ordinary
international treaties, the founding Treaties have created their own legal system. According to
the ECJ the supremacy results from the peculiar nature of the community and not from
concessions made by constitutional laws of the member states. For that reason, the primacy of
the community law does not depend on which theory each member state applies in order to
determine the relation between national and international law. From the perspective of the
ECJ the supremacy of the community law is unconditional and absolute. All community law
prevails upon all national law. This means that the national laws are subservient to all sources
of community law.
When it comes to the hierarchy of the community norms, they can be ordered based on
an scale that does not expressively result from the treaties, but rather from the corroboration
of several articles and principles of them. The hierarchy of the community law does not
presuppose that there are differences in the application of them and does not institute
differences in their juridical power. The constitutive treaties are at the top of the pyramid. The
classification of the other juridical norms of the community cannot be done in an abstract
manner and with general applicability. Hence, for every particular situation, there has to be
established, concretely, through the application of the principle of specialty (lex specialis
derogate lex generalis) and/or the principle of succession in time (lex posteriori), which norm
has superior juridical power.
Principle of Direct and Immediate Applicability
The juridical norms of the community law are applied immediately in the juridical
order of the member states. In order to better understand this characteristic of the European
law, we must refer to the two principles applicable to the relation between international law
resulting from treaties and the internal law of the states signing the treaty the monism and
dualist principles.
According to the monist principle, between the international juridical order and the national
one, there is a continuity, therefore the treaties are applied immediately and directly in the
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national order without the necessity of them being received through internal juridical norms.
The international juridical norm will maintain this character in regard to the national juridical
norms. The dualist principle, on the other hand, presupposes the distinct existence of the two
juridical orders, national and international, and requires the taking/adoption of the
international treaty in the national juridical norms so as to be applied at the national level. The
treaty becomes, consequently, internal law , having the same juridical power, it is
nationalized and in this respect will be applied by the national institutions.
At the level of the European Union, the monist principle has been preferred, because
the other solution would have affected the European integration due to the fact that the
European law would have had different juridical force from country to country, depending
upon the juridical instrument through which it was adopted. Consecrated therefore in the
community treaties, the monist principle was recognized by the European Court of Justice, in
the already famous Decision 6/64, Costa vs. E.N.E.L. It follows from all these observations
that the law stemming from the treaty, an independent source of law, could not, because of its
special and original nature, be overridden by domestic legal provisions, however framed,
without being deprived of its character as community law and without the legal basis of the
community itself being called into question.
In conclusion, the community law is directly applicable in the juridical order of the
member states immediately after its adoption, more precisely published in the Official Journal
of The European Union. The Direct applicability of the community law implies two aspects:
a) Once adopted at the community level, the norms apply directly and immediately in the
national juridical order of the member states without them being taken into internal
juridical norms. Moreover, as the Court of Justice specifies, it is strictly forbidden that
they are taken into internal laws.
b) Direct applicability determines the direct effect of the European law, hence the
possibility to institute rights and obligations to all the subject of the community
juridical order not just for the member states. In theory, the international treaties cant
create rights and obligations directly for the benefit of natural or legal persons from
the member state, but only to the states as such, they being the only subjects of classic
international law. However, this concept has been dented by the creation of European
Court of Human Rights, in which, the issues of individuals from the member states
can be addressed. So, in this case the member states have agreed upon, by the
signature of the institutive treaties, giving right and obligations directly to individuals.

Principle of subsidiarity
The small democratic legitimacy of the European institutions and their more expanded
rights in the adoption of legislation applicable to member states, had lead to the adoption in
the community law of the principle of subsidiary, meant to bring a sense of security to the
Europeans beginning to fear the bureaucracy in Brussels. The principle of subsidiary
governs the repartition of competences between the Union and the member states.
The treaty on European Union (Maastricht) and to a lesser extent the Single European Act
formalize a subsidiarity principle. This much debated principle holds that the union can act in
areas where it does not exclusively have power only if the member states cannot sufficiently
achieve the objectives i.e. by reason of scale or effects [the] proposed action [can] be better
achieved by the community.In all cases, the European Union action must go beyond what is
necessary to achieve the objectives of the Treaty of Rome (proportionality principle). Thus
subsidiarity is a kind of states rights amendment intended to limit the growth of regional
government in Europe. An international agreement by the Council, Commission, and
European Parliament on the application of the subsidiarity principles by all EU institutions
has been negotiated. Subsidiarity guidelines were adopted by the European Council in
December of 1992
There are two concepts characterizing the community law: subsidiarity and
proportionality. Whilst subsidiarity refers to the subject called to complete certain objectives,
proportionality refers to the intensity of the action with regard to the necessity of the
objective. Consequently, the principle of proportionality has as a goal the quantitative
limitation of the community action to what is strictly necessary. The subsidiarity is being
discussed only in the cases of shared competences of the Union and member states and not in
the case where the competences belong to the Union exclusively. The tendency to regulate
everything in Brussels has numerous explanations and cant be stopped easily. Thus, the
European integration presupposes the uniform regulation of sensible fields such as trade,
agriculture, industry, in order to ensure o fair competition within the community. There rest in
the exclusive competence of the member states fields such as services of public health,
culture, education. We can identify the desire of the European Commission to transform itself
in a fully-fledged European government and the frustration of the European Parliament that it
is not a genuine parliament;
Limitation to the community law
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It has always been clear that there are limits to the scope and field of application of EU
law. This goes to the heart of the legitimacy of the EU project. The question is what are those
limits and where do the outer limits actually lie?Even in a single state identifying the limits of
public power can be a difficult exercise. A federal system adds the complexity of knowing
which part of the public sphere is properly authorised to exercise that power, and identifying
the limits imposed in the division of competence between the central and local levels. For
example, in one period criminal law matters or national security appear to fall wholly outside
the scope of EC law and go to the core of national sovereignty; gradually Community law
begins to encroach even upon these fields. In the context of the EU, it has long been known
that the Union is not a self-authenticating entity. Instead, the EU is limited to exercising the
powers conferred upon it by the Member States. This is made clear at a formal level in Article
5(1) EC, which provides that [t]he Community shall act within the limits of the powers
conferred upon it by this Treaty and of the objectives assigned to it therein. This attempt to
define the limits of the Communitys competence creates the presumption that all which is not
conferred remains with the Member States. The Lisbon Treaty makes this point expressly:
Article 4(1) TEU-L provides that in accordance withArticle 5, competences not conferred
upon the Union in the Treaties remain with the Member States. Article 5(1) TEU-L states The
limits of Union competences are governed by the principle of conferral. Conferral is
defined in Article 5(2) TEU-L as the Union acting only within the limits of the competences
conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
For good measure it adds Competences not conferred upon the Union in the Treaties remain
with the Member States.
So far we have concentrated on the most obvious and visible limit to the Communitys
competence: its capacity to legislate in defined areas only. This means that, in principle, all
other areas are left to the Member States. But this is not the only way that the Treaty creates
space for Member States to act. Another obvious example is the derogations from the four
freedoms (such as public policy, public security and public health). However, a study of cases
decided in 1984, 1994 and 2004 reveals that increasingly the Court is saying that, on the facts
of a particular case, the Member State has failed to make out a justification or, if it has made
out a justification, the steps taken do not comply with the principles of proportionality,
fundamental rights, effective judicial protection and legal certainty. This has marked a
significantshift in the balance of power between the EU and the Member States.

While it is clear that there are limits to EU law, there is also evidence that the
Community and the Union stray beyond those limits. Eurosceptics cry foul. Europhiles are
more benign: they recognise that the EU must stay within the limits laid down as part of the
process of legitimising the endeavour but they also realise that the EUs legitimacy is under
threat if it fails to deliver. Thus the EU must be able to function effectively and, at times, this
requires a generous interpretation of rules which are themselves open textured.
We can still say that there are things that the EU does not do and ought not do: it does
not have a police force or an army, it does not provide social welfare, education or health care.
Nor does the EU have the competence to do any of these things. However the EU, and the
Court in particular, is prepared to control the exercise of these powers by the Member States
where national rules affect free movement. As the health care cases demonstrate, this
inevitably has an impact on the shape of provision by the national systems. It is in this context
that some of the allegations of competence creep are most pronounced. And it is here that the
EU must tread most carefully since the legitimacy of the EU is at its most precarious.

Romanian Law
According to Romanian Constitution an international treaty is a source of
constitutional law if it accomplishes the following conditions: it is licit; its application is
direct, immediate; the treaty must be ratified according to the international norms; it must
contain provisions of constitutional law. The Romanian State pledges to fulfill as such and in
good faith its obligations as deriving from the treaties it is a party to; Only the treaties ratified
by the Parliament, according to the law are part of the national law; Under Romanian Law,
ratification of a treaty in accordance with the procedure for which the constitution provides,
followed by its publication in the Official Journal is sufficient to incorporate it into domestic
law, whereby giving it the force of positive law. In practice, the self-executing method is
applied whenever possible. Otherwise, domestic law has to be amended to make it compatible
with the international law concerned.
The essential feature that community law enjoys in comparison with general
international law is its specific direct effect nature, meaning that it enjoys supremacy, direct
applicability and by itself and not because the national constitution or the national law
provides so. Thus, the accession of new member states assumed ab initio the transfer to the

Union of powers of state sovereignty, and thereafter the common exercise of some powers
that traditionally fall within the scope of state sovereign power.
Institutional guarantees provided by Romanian constitution endorse all the three
branches of government: legislative, executive and judiciary to the extent that the integration
to EU assumes their participation to the observance and the enforcement of community
norms, within the limits of their constitutional powers. Thus, in the context of the European
integration the need for rethinking the concept of sovereignty flourished, new concepts
emerging like: open statehood, post-sovereignty, late-sovereignty, multilevel governance.
Starting from the rethinking of this concept, all the constitutions of the members states should
contain provisions regarding: the delegation of competencies to the EU; the exercise of the
sovereignty at national and European level as well, the latter through the European
Parliament; the relation and the interaction between national and European law.
The Romanian Constitutional Court stated that, through the transfer of the
competencies to the EU institutions, these do not acquire a supra-competence, their own
sovereignty. In fact, the member states decided to exercise in common some competencies
that traditionally are by the domain of national sovereignty. The transfer of the member states
national competencies to the supranational level is not possible without a democratic control
of the citizens of the member states, realized through the European Parliament.
Prior to the revision in 2003, Romanian Constitution did not contain provisions
concerning the transfer of state powers to international organizations or the joint exercise with
other states of competencies specific to state sovereignty. It only contained the general rules
of article 11 and 20, developed in the second chapter of the paper. After the revision, article
148 regulates an exception from the rule, applied only to the European integration, article
which provides special rules for the accession to EU. According to this article, Romanias
accession to the constituent treaties of the European Union, with a view to transferring certain
powers to community institutions, as well as to exercising in common with the other member
states the competencies stipulated in such treaties, shall be carried out by means of a law
adopted in the joint session of the Chamber of Deputies and the Senate, with a majority of two
thirds of the number of Deputies and Senators.
The law of ratification of Romanias accession is an atypical law in the Romanian
legal system, irrespective of the formal or material aspects. Regarding the material aspect, this
is a law of ratification of international treaties. It is neither a law of the revision of the
Constitution because it does not modify the fundamental law, nor an organic or ordinary law,
the transfer of the competencies to the European institutions or the exercising of powers in
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common with other member states prevailing over the domain of ordinary and organic laws.
Concerning the formal aspect, this law is approved with a majority of two thirds of the
number of Deputies and Senators, which is different from the majority of two thirds of the
number of deputies and senators, taken separately required for the revision of the constitution
on a first phase.
Article 148 par. 4 and 5 provides institutional guarantees for all the three branches of
government regarding transposition into national law of the community law through primary
or secondary acts and the real enforcement of this legislation through administrative and
judiciary bodies. This provision of the Romanian constitution is in accordance with the
general norms of public international law, ECJ establishing a wide jurisprudence concerning
the state liability for breaches or infringement of community law, irrespective of the facts are
of legislative, judiciary or administrative bodies. The next paragraph establishes constitutional
rules for well functioning of state institutions within European institutions. Thus the executive
branch, the Government shall send to the two Chambers of the Parliament the draft mandatory
acts before they are submitted to the European Union institutions for approval.
Concerning the state liability for breaches or infringement of community law,
irrespective of the facts are of legislative, judiciary or administrative bodies. The next
paragraph establishes constitutional rules for well functioning of state institutions within
European institutions. Thus the executive branch, the Government shall send to the two
Chambers of the Parliament the draft mandatory acts before they are submitted to the
European Union institutions for approval.
Article 148 par. 1 of the Romanian Constitution provides the priority of the
community law over the national one and par. 2 adds that this is an original priority because
only the constitutive treaties and other mandatory community regulations have priority over
the internal contrary provisions. Irrespective of the words used by the Romanian derivative
constituent power, the enforcement of the principle of priority is the task of all Romanian
authorities involved in the process of compliance of Romanian legislation with the European
norms. The Romanian constitutional court in the decision 148/2003 concluded that
community norms have supra-legislative but infra-constitutional force, thus acquis
communautaire having an intermediary position between constitution and other laws, when
speaking of mandatory European legal norms.
Regarding the conflict between national law and European law, the same court in the
decision no. 558/2007, concluded that national courts should address to the European Court of
Justice in order to assure the effective and homogeneous enforcement of the community law.
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In a relatively new decision, the Court said that the aspects concerning the compatibility of
internal provisions with community law do not represent issues of constitutionality, being
aspects of enforcement of legislation by the judicial courts, superseding the competence of the
Constitutional Court.
Romanian judges expressed their position also regarding the relation between national
law and community law, for example in the decision no. 4403/31.05.2007, the High Court of
Cassation and Justice concluded that the community law has priority over the contrary
internal law, producing concrete effects within the national order, the national judge being
obliged to sanctionate the contrary. In other decision no. 2620/23.03.2007, the High Court
stated that if the internal norms are in contradiction with community norms, the later have
priority in accordance with the principles of priority and direct effect of the community law.
Thus, given the special character of EU, some features of federal arrangements can be
find, features which had been taken into consideration by the Romanian constitutional power:
the limitation of national sovereignty in favour of the EU; three levels of competencies: some
competencies are given exclusively to the EU, others are shared with member states and
others resting to the member states; recognition of the principle of subsidiarity which allows
national parliament to signal a particular decision does not comply with the principle.
Going beyond this point, there remain the judges, who alone, with the instruments
available to them (legislation, case law, legal theory, domestic and international law) and with
their desire to learn about, familiarize themselves with, and develop these, are responsible for
the dispensation of justice, and ultimately for applying the law, taking appropriate action in
each individual case under the general provisions.

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