supremacy of law

conchubhar1

Which has higher precedence: eu law or irish law?

Riskymove

short answer: eu law

Freeborn John

conchubhar1 wrote: »

Which has higher precedence: eu law or irish law?

The supremacy of EU law is the key means by which it takes over from national parliaments through a process called 'federal preemption'. Every new EU law obliges all member-states (not just governments, but states in perpetuity) to remove any conflicting national law, and they must never legislate in that area again. The EU law-making machine is never going to stop producing new EU law, so the long-term result is inevitably that national parliaments will slowly be choked of any role in creating the law of the land in the long-term by the ever-swelling body body of EU law.

Furthermore the EU Commission is able to use its monopoly on all proposals for new or changed EU law to ensure that the body of European law only grows (and therefore that of national parliaments shrinks). This process slowly disenfranchises the voters who elect the national parliaments. Ultimately national elections will only be able to decide which party sends representatives to EU meetings.

http://en.wikipedia.org/wiki/Preemption_(law))
http://en.wikipedia.org/wiki/Federal_preemption

Scofflaw

The short answer is EU law where there is an EU law and a corresponding national law - otherwise the question is meaningless.

If European-level law did not trump national law there would be no point in having a European level of law in the first place. It would be like allowing every football club to play according to their own local rules.

cordially,
Scofflaw

conchubhar1

so how does ireland not be affected if the eu decides anything in defence/military etc....?

(we have been assured it will not - great - but that is not law. law is supreme, law is what counts)

is it only a veto that stops it?


obviously it is only where there is conflicting laws - otherwise how would one out-trump the other..

---

is what freeborn john said true? (in any way????)

molloyjh

conchubhar1 wrote: »

so how does ireland not be affected if the eu decides anything in defence/military etc....?

(we have been assured it will not - great - but that is not law. law is supreme, law is what counts)

is it only a veto that stops it?


obviously it is only where there is conflicting laws - otherwise how would one out-trump the other..

---

is what freeborn john said true? (in any way????)

I would very much doubt that!!!!

Nothing in the Treaty forces us to partake in military action. I did an analysis on p.ie that might be of interest. I can PM you the link if you'd like?

Scofflaw

conchubhar1 wrote: »

so how does ireland not be affected if the eu decides anything in defence/military etc....?

(we have been assured it will not - great - but that is not law. law is supreme, law is what counts)

is it only a veto that stops it?


obviously it is only where there is conflicting laws - otherwise how would one out-trump the other..

EU laws only apply within the provisions of the treaties to which Ireland is a signatory, and to the extent that Ireland has accepted those provisions, and to the extent that any decision taken within the EU framework applies to all countries. With respect to, for example, the common defence, we have a Constitutional bar on it:

9° The State shall not adopt a decision taken by the European Council to establish a common defence pursuant to Article 1.2 of the Treaty referred to in subsection 7° of this section where that common defence would include the State.

Unless that constitutional bar is removed, no Irish government can agree to be part of a common defence.

With respect to common foreign policy, it's not really an "EU" matter in the usual way that we mean "EU" - that is, the "community method". The Commission does not make proposals, the ECJ has no jurisdiction, the Parliament has no role, every state has a veto. That's the case for every and any decision that has military or defence implications.

In other words, there's nothing "EU" about it, really - it's an intergovernmental arrangement, agreed entirely by the member states. That makes it no different from a separate multilateral treaty, except that it can take advantage of the existing EU assets like the Delegations, which would otherwise need to be duplicated.

It's worth remembering that the EU is partly intergovernmental, and partly supranational - foreign policy, unsurprisingly, is one of the intergovernmental bits. Nor is any 'creep' of foreign policy possible, because the Irish Supreme Court ruled in the Crotty case that foreign policy is an integral part of sovereignty, and the government may not agree to place restrictions on the free exercise of Irish foreign policy without the agreement of the people at referendum.

is what freeborn john said true? (in any way????)

In very brief, no. The EU's body of law both increases and decreases:

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

2. 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.

cordially,
Scofflaw

marco_polo

In areas of Exclusive Competence such as competition rules within the internal market, the customs union, Euro monetary policy member states have no right to legislate on their own.

In areas of Shared Competence such as the internal market, agriculture and fisheries, environment, consumer protection and the area of reedom, security and justice a member states may not legislate when the EU legislates. In the even of a dispute the ECJ arbitrates.

Shared competencies are subject to the principals of subsidiarity and proportionality which are detailed in additional protocols to the treaties. Under the principal of subsidiarity the Union may act only when the objectives cannot be sufficiently achieved by the Member States themselves. Under proportionality the Union may not take action beyond what is required to achieve those objectives.

There is also limited co-ordinating powers for certain areas like civil protection and improvement of human health.

The way decisions are made is not directly related to the level of competencies. But as a very rough guide in the areas of exclusive competencies, the usual mechanism would be QMV voting. In the areas shared competencies a mixture of both unaminity and QMV depending on the importance of the area to the member states.

Scofflaw

marco_polo wrote: »

In areas of Exclusive Competence such as competition rules within the internal market, the customs union, Euro monetary policy member states have no right to legislate on their own.

In areas of Shared Competence such as the internal market, agriculture and fisheries, environment, consumer protection and the area of reedom, security and justice a member states may not legislate when the EU legislates. In the even of a dispute the ECJ arbitrates.

Shared competencies are subject to the principals of subsidiarity and proportionality which are detailed in additional protocols to the treaties. Under the principal of subsidiarity the Union may act only where the objectives cannot be sufficiently achieved by the Member States themselves. Under proportionality the Union may not take action beyond what is required to achieve those objectives.

And under Lisbon the national parliaments get the power to object to proposed law on the basis that of subsidiarity and proportionality.

cordially,
Scofflaw

conchubhar1

okay - thanks all.

constitutuional bar - so eu law is not always supreme?

Scofflaw

conchubhar1 wrote: »

okay - thanks all.

constitutuional bar - so eu law is not always supreme?

Now there's a simple question with a complicated answer. In fact, the national constitutions of the member states are automatically superior to the Treaties, which are the source of EU law, so the national constitutions take precedence over conflicting EU law, just as EU law takes precedence over conflicting national law.

However, we in Ireland have abrogated the effect of our Constitution, by inserting this clause:

10° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

That prevents us from challenging EU law on the basis of our Constitution (which admittedly doesn't contain much fit for the purpose anyway), so that even though Bunreacht is superior even to the treaties, it can't be used to challenge EU law once we've ratified the treaties (although, having said that, the paragraph is probably not as watertight as it first appears, since 'necessitated' isn't a blanket term). That's part of the reason why the Charter of Fundamental Rights is a particularly good thing from our perspective (unless you have the immigration bug, in which case according rights to Poles is apparently unacceptable).

However, the constitutional provision preventing the Irish government from agreeing to be part of a common defence binds the government, rather than the EU, while the treaties (obviously) do not require any government to agree to such a common defence.

cordially,
Scofflaw

conchubhar1

so - yes and no is the answer but leaning more towards the eu law being more important.

eventually irish law will be ''squeezed out'' as eu law will legislate in more and more areas

Scofflaw

conchubhar1 wrote: »

so - yes and no is the answer but leaning more towards the eu law being more important.

Having precedence, not "being more important". Most law is national law, and national law covers the things most people care deeply about.

conchubhar1 wrote: »

eventually irish law will be ''squeezed out'' as eu law will legislate in more and more areas

Really? Now where do you come by that claim?

cordially,
Scofflaw

Torakx

Freeborn John wrote: »

The supremacy of EU law is the key means by which it takes over from national parliaments through a process called 'federal preemption'. Every new EU law obliges all member-states (not just governments, but states in perpetuity) to remove any conflicting national law, and they must never legislate in that area again. The EU law-making machine is never going to stop producing new EU law, so the long-term result is inevitably that national parliaments will slowly be choked of any role in creating the law of the land in the long-term by the ever-swelling body body of EU law.

Furthermore the EU Commission is able to use its monopoly on all proposals for new or changed EU law to ensure that the body of European law only grows (and therefore that of national parliaments shrinks). This process slowly disenfranchises the voters who elect the national parliaments. Ultimately national elections will only be able to decide which party sends representatives to EU meetings.

http://en.wikipedia.org/wiki/Preemption_(law))
http://en.wikipedia.org/wiki/Federal_preemption

so for example if later on down the road the eu is 100% against marijuana but the country of holland would like it kept legal.
the eu law would be forced on holland or would there be a choice for each state do you think?
if eu law will go against it we will be in a more fascist state imo than america

conchubhar1

well we waivered our right to go against eu laws

as you said also it already takes precedence and is ''supreme'' - therefore in time as the eu makes more laws in new areas given to it where will irish laws be able to legislate?


''precedence
noun
quarrels over precedence priority, rank, seniority, superiority, primacy, preeminence, eminence.''

therefore precedence = more important, essentially.

Scofflaw

conchubhar1 wrote: »

well we waivered our right to go against eu laws

as you said also it already takes precedence and is ''supreme'' - therefore in time as the eu makes more laws in new areas given to it where will irish laws be able to legislate?


''precedence
noun
quarrels over precedence priority, rank, seniority, superiority, primacy, preeminence, eminence.''

therefore precedence = more important, essentially.

Ah - OK, we're talking about something slightly different there - to wit, the growth of EU competences. However, that's not some kind of runaway train. Lisbon grants only one new competence in which EU legislation prevents Irish legislation (shared competence), and that within tight limits. There's no apparent interest in any large expansion of EU competences.

cordially,
Scofflaw

conchubhar1

true - from what i read their is very little/no new exclusive competences

but i was just enquiring about what will happen when the eu does expand in power - as it will, judging on its past growth from economic to where it stands todayl.


thanks.

Scofflaw

conchubhar1 wrote: »

true - from what i read their is very little/no new exclusive competences

but i was just enquiring about what will happen when the eu does expand in power - as it will, judging on its past growth from economic to where it stands todayl.


thanks.

Well, it's worth remembering that the EU's current competences have all been granted by the Irish people, and any further expansion of competences would too.

cordially,
Scofflaw

MrMicra

conchubhar1 wrote: »

true - from what i read their is very little/no new exclusive competences

but i was just enquiring about what will happen when the eu does expand in power - as it will, judging on its past growth from economic to where it stands todayl.


thanks.

That's a good question Conchubar, however the transfer of powers to the EU only takes place with the consent of the national governments (and in our case and some other cases the people). Lisbon is not about a transfer of powers it is about democratisation.

Now that democratisation may well be used to justify a further transfer of powers in the late teens or early twenties but lets cross that bridge when we come to it.

Under the doctrine of Supremacy of EU law the EU commission CANNOT just turn up and start issuing directives in areas where it has not been explicitly given power, if they did that we would tell them to get lost. They only get power AFTER the Irish people ratify a treaty and only over the areas where power has been granted. The principle of supremacy means that nothing in our constitution can be used to challenge our obligations under a treaty that we've already ratified.

nesf

MrMicra wrote: »

Under the doctrine of Supremacy of EU law the EU commission CANNOT just turn up and start issuing directives in areas where it has not been explicitly given power, if they did that we would tell them to get lost. They only get power AFTER the Irish people ratify a treaty and only over the areas where power has been granted. The principle of supremacy means that nothing in our constitution can be used to challenge our obligations under a treaty that we've already ratified.

Indeed! While often the primacy of EU law is held up as a negative, it does very much cut both ways and with the precision that is in place in terms of outlining where EU law has standing and where it doesn't acts as an excellent check against any federalist seeking to expand the EU's powerbase since any further areas cannot be granted without essentially unanimous support from the individual countries, in our case via referendum.

This point is lost on many I'm sorry to say.

conchubhar1

again - from what i have read this has no bearing in the lisbon treaty.

but - and you have to admit - the eu will expand in powers, eventually.

now we may - or the oireachtas may - have to agree to these changes but when they are agreed and laws are legislated in them, irish law can not legislate any more in that area unless it is widthrawn or whatever the scenario was.

also granted the irish people or government would not give up much more power if it was not in their interest as would other states - but it will happen when it is most likely in our best interest.

when that happens and laws that our in our best and everyone elses best interest are legislated for:

will people concede that the eu will become a federalist state/one country or whatever name you want to give it.

borders will be gone (eventually all of them) - flag, anthem and parliament etc.
Nation states will no longer be able to make new laws, meaningful ones anyway and people will start to put more interest in the election of meps etc.

therefore the role of our ''national'' parliaments would be federal/local only.

marco_polo

conchubhar1 wrote: »

again - from what i have read this has no bearing in the lisbon treaty.

but - and you have to admit - the eu will expand in powers, eventually.

now we may - or the oireachtas may - have to agree to these changes but when they are agreed and laws are legislated in them, irish law can not legislate any more in that area unless it is widthrawn or whatever the scenario was.

also granted the irish people or government would not give up much more power if it was not in their interest as would other states - but it will happen when it is most likely in our best interest.

when that happens and laws that our in our best and everyone elses best interest are legislated for:

will people concede that the eu will become a federalist state/one country or whatever name you want to give it.

borders will be gone (eventually all of them) - flag, anthem and parliament etc.
Nation states will no longer be able to make new laws, meaningful ones anyway and people will start to put more interest in the election of meps etc.

therefore the role of our ''national'' parliaments would be federal/local only.

Loaded question? Why would anybody conceed that the EU will become a federalist state when it quite likely that that will never happen. For the EU to become a federalist state would require that all 27 Member States thus far would willingly give up their independence completely, and there is no evidence thus far that that there is any desire to go down such a path.

The EU can only expand in powers to the extent that the members states are willing to bestow upon it. As the EU is an ongoing experiment in many respects, nobody case say for certain where the limit is, but it a proper Federal State seems to me to be one of the least likely answers.

True federalists are very much in the minority in the EU.

conchubhar1

but when it gets to a point where the places the eu can legislate is so far - then states can only legislate in the minority and very local issues.


then it would not be about states voting themselves out of existence nor the people really, but the importance of voting meps etc would be greater as they legislate the vast majority of law.

the other systems or items needed for a country/federal state whatever are already there:

flag, anthem, no borders, parliament, citizens (dual) and a proposed constitution (voted no)

Scofflaw

conchubhar1 wrote: »

but when it gets to a point where the places the eu can legislate is so far - then states can only legislate in the minority and very local issues.


then it would not be about states voting themselves out of existence nor the people really, but the importance of voting meps etc would be greater as they legislate the vast majority of law.

the other systems or items needed for a country/federal state whatever are already there:

flag, anthem, no borders, parliament, citizens (dual) and a proposed constitution (voted no)

All of this is based, though, on your assumption that the EU will inexorably become a federal state. As I've said before, many of us who support the EU in its current form have no interest in a federal Europe - some do, of course, but not a large enough minority to allow it to ever happen.

The German judgement is pretty explicit on what would be required for the EU to become a federal state, and for Germany to be absorbed into it - it would require the abolition of the German Basic Law by referendum. The same here - we'd have to vote to abolish Bunreacht. The UK, and the other monarchies in the EU would have to depose their monarchs, dissolve their constitutions, and abolish the institution of royalty. It's really not something you can do by stealth.

Similarly, the German court was very explicit on putting a boundary on the what is possible through the EU without breaching the limit of German nationhood. Again, that's based on their Basic Law, to which the Treaties are not superior - "the Member States remain the masters of the Treaties", to quote the judgement.

Really, this kind of 'speculation' is like watching the LUAS accelerating away from a station, and fretting about what will happen when it 'inevitably' hits light-speed as a result.

cordially,
Scofflaw

oscarBravo

conchubhar1 wrote: »

but when it gets to a point where the places the eu can legislate is so far - then states can only legislate in the minority and very local issues.

The assumption that's being challenged is that that will happen.

I can remember when the national speed limit was 55mph. Then it went up to 60mph. Now it's the equivalent of 62.5mph. Is it fair to conclude that it's only a matter of time before it's 200mph?

Riskymove

oscarBravo wrote: »

Is it fair to conclude that it's only a matter of time before it's 200mph?

yes, those goddam jet-cars and the sooner the better

marco_polo

oscarBravo wrote: »

The assumption that's being challenged is that that will happen.

I can remember when the national speed limit was 55mph. Then it went up to 60mph. Now it's the equivalent of 62.5mph. Is it fair to conclude that it's only a matter of time before it's 200mph?

Well if those damn Germans succeed with their devious plans to over the EU.....

conchubhar1

again.
sarcasm, the basis of any good legitimate argument.


when the eu gets more powers, lets face it, it will, then the national governments will be able to legislate less and less.

then people will put more emphasis on meps and the eu - people will soon question the point of having a full government to do the job of local governemnt

as i said all the other things needed are there - flag, anthem, parliament, citizens, proposed constitution

K-9

oscarBravo wrote: »

The assumption that's being challenged is that that will happen.

I can remember when the national speed limit was 55mph. Then it went up to 60mph. Now it's the equivalent of 62.5mph. Is it fair to conclude that it's only a matter of time before it's 200mph?

Homosexuality used to be punishable by flogging, then imprisonment, then it was made legal. I'm getting out before it is made compulsory!

oscarBravo

conchubhar1 wrote: »

then people will put more emphasis on meps and the eu - people will soon question the point of having a full government to do the job of local governemnt

And soon we'll have a 200mph speed limit. It's not sarcasm, it's an analogy.

You're using the classical logical fallacy that, because there has been movement in a certain direction, that this means that there will inevitably be continuous movement in that direction without restriction.

I reject your premise.

Scofflaw

conchubhar1 wrote: »

again.
sarcasm, the basis of any good legitimate argument.


when the eu gets more powers, lets face it, it will, then the national governments will be able to legislate less and less.

then people will put more emphasis on meps and the eu - people will soon question the point of having a full government to do the job of local governemnt

as i said all the other things needed are there - flag, anthem, parliament, citizens, proposed constitution

And still you simply repeat your assumption, and still you offer no counter-argument. For the EU to have conferred on it so many competences that the Dáil is reduced to a 'regional parliament' requires the consent of the people, just as the conferral of the EU's other competences has done. The people have conferred those competences - something I'm sure you respect, of course - and if they choose to confer every single government competence on the EU, I'm sure you'd respect that too.

We cannot get from where we are now to a European federal state without the consent of the people of Europe. The people of Europe do not, at this time, want a federal Europe, so there cannot be a federal Europe. If the people of Europe ever want a federal Europe, they will have to explicitly vote for it. If they want to reduce the Dáil to the status of a local government (and there are quite a lot of signs that that's all it's good for) they will have to vote for that too. A limited shared competence on energy and a couple of support roles, which are what's in Lisbon, aren't going to reduce the Dáil to that status - and given that in the seven year gestation of this treaty, that's all that's been added to the EU's competences, we're hardly on a runaway train here.

Should I assume you're simply going to repeat yourself now?

regards,
Scofflaw