CELS Lunchtime Seminar: 'A Doctrine of Pre-Emption for the European Union'

Speaker: Professor Amedeo Arena, University of Naples 'Federico II' 

Abstract:

While courts in other legal systems (e.g. USA, Canada, Australia, the Andean Community) have developed tests and presumptions to determine when federal law is in conflict with the law of the federated entities, no equivalent doctrine exists under EU law. That determination, which has a direct impact on Member States’ regulatory autonomy, is carried out by the ECJ seemingly on a case-by-case basis. 
 
This makes the application of the doctrine of primacy somewhat unpredictable and the competence catalogue laid down in the treaties an imperfect proxy of the limits placed by EU law upon the exercise of national law-making and treaty-making powers. 
 
The purpose of this talk is to examine whether, from the observation of patterns in the ECJ’s case law, a theory can be formulated to account for the pre-emption of Member States’ powers arising from EU law. 

Understanding the dynamics of the pre-emption phenomenon would increase legal certainty in the adoption, application, implementation, and enforcement of EU law. Most importantly, it would enable a more constructive debate on the extent of Member States' regulatory autonomy in the internal and the external sphere.

After a description of EU pre-emption as it currently stands, some normative recommendations as how that doctrine should develop will be provided.

Enquiries to: cels@law.cam.ac.uk