Supremacy and direct effect of EC law - Position of the constitutional court
| Author | Noela Ruço - Kaliona Nushi |
| Pages | 143-153 |
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o
. 1
M
arch, 201
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ISS
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cces on
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ine at www.ii
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.or
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A
cademic Journal o
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Business,
A
dministration, Law and Social Sciences
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PCCL Publishin
g
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A
ustria
S
upremac
y
and direct e ect of EC law - Position of the constitutional court
LLM Noela Ru
ç
o
LLM K
alio
n
a
N
u
s
hi
Ab
str
a
ct
A
lthough it was originally established with the aim of cooperation and economic integration
o
f
its Member States, The
E
uropean
U
nion (
EU
) got a universal nature, becoming a real
s
upranational organization whose legal acts, adopted by its institutions are directly applicable
b
y Member States and when a con
fl
ict arises between the internal law o
f
a Member State and
the
E
uropean Community (
E
C) law, the la er prevails
.
By accepting the supranational jurisdiction, the
EU
Member States also accept to transfer
p
arts of their sovereignty. However, not in all countries is easily accepted the renunciation o
f
p
art of national sovereignty and the recognition of certain competencies to the supranational
i
nstitutions.
I
n this sense, the constitutional courts have o
en opposed to a complete trans
f
er o
f
n
ational legal sovereignty and have insisted on their role as the “guardian” of the Constitution.
Generally, these objections are based on the question whether
E
C law is capable to o
er the
s
ame protection of rights with that o ered to the national level.
If
the national constitutional order limits the trans
f
er o
f
powers or the e
ects o
f
supremacy,
the hi
g
hest national courts should decide whether these restrictions have been violated. This
r
aises the issue of the “ultimate authority” or “ultimate arbitrator” in the case of confl ict
b
etween national and community law.
I
n this sense main objective of this manuscript is the
di
r
e
ct
e
e
ct
o
f
EU
l
a
w
i
n
A
lb
a
n
ia
a
s
a
C
a
nd
i
d
a
t
e
st
a
t
e
f
o
r th
e
EU
.
Ke
y
words
:
A
lbania,
EU
law, Constitutional court.
I
nt
odu
ct
io
n
Due to the lack o
f
a legal basis regarding the relationshi
p
between communit
y
and
n
ational law, the solution o
f
this issue was le
to the
E
uro
p
ean court. There
f
ore, the
E
uro
p
ean Court o
f
Justice (
E
CJ) strengthened its image as the “engine” o
f
E
uro
p
ean
i
ntegration, b
y
creating the doctrine o
f
su
p
remac
y
o
f
E
C law.
I
n its o
p
inion, the
p
rimac
y
and direct e
ect o
f
the
E
C law is based on its “s
p
ecial and original nature”,
e
s
p
eciall
y
to the
f
act that it constitute an inde
p
endent legal s
y
stem that derives
f
rom
an autonomous legal source
.
A
rticle 6 o
f
Constitution Treat
y
(not a
pp
roved)
1
esta
bl
is
h
e
d
a “su
p
remac
y
” or
“
p
rimac
y
clause”, according to which “the Constitution and law ado
p
ted b
y
the
i
nstitutions o
f
the
E
uro
p
ean
U
nion in exercising com
p
etences con
f
erred on it shall
h
ave
p
rimac
y
over the law o
f
the Member States.”. This
p
rovision was not trans
f
erred
t
o the Lisbon Treat
y
, which instead stated that based on the juris
p
rudence o
f
the
E
uro
p
ean Court o
f
Justice, the Treaties and law ado
p
ted b
y
the
E
uro
p
ean
U
nion,
p
revail over the law o
f
the Member States, under the conditions
1
The Treat
y
establishing a Constitution for
E
uro
p
e of 2004 was an unratifi ed international treat
y
intended to create a consolidated Constitution for the
E
uro
p
ean
U
nion
.
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