decleration concerning primacy

wylo

Could someone please explain what this means?
In that wise journal article (which I know is rubbish from going through it) it mentions this, what do these paragraphs actually mean? The no sayers say it gives a european constitution priority over our own?

Im not fully sure.
Thanks

17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
"Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/6411) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice."

Scofflaw

wylo wrote: »

Could someone please explain what this means?
In that wise journal article (which I know is rubbish from going through it) it mentions this, what do these paragraphs actually mean? The no sayers say it gives a european constitution priority over our own?

Im not fully sure.
Thanks

EU law takes primacy over national law, within the limits established by various cases - something explicitly recognised in our Constitution, but accepted throughout the EU.

The EU's constitution - the rules in the treaties by which it works - don't, and can't, really take priority over ours. If they did, we wouldn't require an amendment to our Constitution to allow their ratification.

cordially,
Scofflaw

wylo

Scofflaw wrote: »

The EU's constitution - the rules in the treaties by which it works - don't, and can't, really take priority over ours. If they did, we wouldn't require an amendment to our Constitution to allow their ratification.

But isnt that the very argument? That we would be allowing it to take priority over ours with a yes vote? Hence, we would require no more amendments to our Constitution after that?

Scofflaw

wylo wrote: »

But isnt that the very argument? That we would be allowing it to take priority over ours with a yes vote? Hence, we would require no more amendments to our Constitution after that?

People are certainly claiming that, but how would it happen? Where in Lisbon - or our amendment - is the constitution of the EU given priority over ours? And however would doing that mean that we had no more referendums?

cordially,
Scofflaw

wylo

Well thats what Im trying to figure out. Isnt it not from the Lisbon treaty that that text is added no?
Also could you please show me where Id find info on what would actually be changed in our constitution? To see nothing mentioned there about an EU constitution having priority over our own would be enough for me.
Thanks for the help

Scofflaw

The proposed Amendment to the Constitution is here. This is the bit that might worry you:

6° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, before, on or after the entry into force of the Treaty of Lisbon, that are necessitated by the obligations of membership of the European Union referred to in subsection 5° of this section or of the European Atomic Energy Community, or prevents laws enacted, acts done or measures adopted by—
i the said European Union or the European Atomic Energy Community, or by institutions thereof,
ii the European Communities or European Union existing immediately before the entry into force of the Treaty of Lisbon, or by institutions thereof, or
iii bodies competent under the treaties referred to in this section, from having the force of law in the State.

That's a rejigging of the existing version of 29.4.10:

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.

The point of those two versions is the same - that EU law has primacy, and cannot be challenged on the basis of the Constitution. The existing version has been modified a couple of times before - it's been in the Constitution since 1973.

cordially,
Scofflaw

wylo

Thanks for that, there is no difference really, I guess at the end of the day if something needs to be changed in our constitution due to decisions made in Europe we will still have to have a referendum.

Also I noticed from reading the white paper, it says that a declaration is not legally binding. Its more of a state of intention so I guess that clears it up even more.