National Courts and Democracy

The Reaction of National Courts to Direct EffectGerman Courts/ BVERFG:Solange II: The Federal Constitutional Court of Germany asserted a constitutional power of its own to police the application of fundamental rights itself  Brunner: Germany secured the right to ensure respect from EU constitutions in their power Re Ratification of the Treaty of Lisbon: They also asserted the right to upon Germany's constitutional Identity.  UK courts:Factortame: European Communities Act is protected against implied repeal- Union law takes precedence over an act of parliament. Thoburn: If there was an English Measure which contained a rule of guaranteed fundamental/constitutional right over the EU, would it have primacy over an EU act? There could be no appeal to the ECJ  Open for any individual to bring action.  EC Commission can bring infringement proceeds against resisting member states.  An attempt of reunion and resolution would be made through political proceedings.  If the member state still resists the member sate may be considered to withdraw depending upon their importance and significance in the EU. The ECJ responds though securing rights by forming general principles of Union Law and took more responsibility for policing the Union's powers.  Treaty establishing the Constitution of Europe would replace all other treaties enforcing coded primacy over the member states. However, this was not passed as France and the Netherlands voted it down.  The Treaty of Lisbon diluted the doctrine of primacy by conditions laid down in case law. Czech Courts:Slovak Pensions: Czech Republic constitutional court declared the EU powers as ultra vires (beyond powers/ without authority)  and consequently choose to disapply EU law and apply their own.Article 4(2) TEU: Union must respect member states national identities and their political/ constitutional structures. Neil MacCormick: "Avoiding conflict between national and EU law is a matter for circumspection and for legal judgement. ECJ must consider their national constitutions and national courts ought not to interpretate laws without regard to compatriots of the EU."

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