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Title: The relationship between the primary sources of European Union law : is there a 'hierarchy' within Union primary law?
Author: Sowery, K.
ISNI:       0000 0004 7970 3867
Awarding Body: University of Liverpool
Current Institution: University of Liverpool
Date of Award: 2018
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This thesis explores the interactions between the primary sources of European Union (EU) law. It examines the relations between the primary legal sources not only as they may emerge formally from the text of the Union Treaties, but also how they have been negotiated in practice by various constitutional actors, such as the Court, the Member States and the Union's political institutions. After all, the Treaties themselves do not reveal much about potential hierarchical orderings within Union primary law. The relations between the different sources of Union primary law are important for two reasons which lead to the two framing questions of the thesis. First, the interactions between different values, principles, objectives and rules that have a place in the Union's primary legal framework are now more common. The first question therefore is how are the possible tensions resolved in practice? The thesis explores how the growing instances of tensions are (or should be) managed at the Union level. Second, significant constitutional implications arise from the way these tensions are managed and resolved in practice. Thus, the second question is what are the constitutional implications of the Union's approach to resolving such issues for the development of the Union legal order and the balance of powers therein? In order to explore these questions, the thesis focuses on three specific contexts where the sources of Union primary law interact. The three contexts tell us interesting things about the relationship(s) between the primary sources of Union law. The first context is the operationalization of EU primary law by the Union's political institutions, and by the Court. The second context is the enforcement of EU primary law by the Member States. The final context is the formulation and amendment of EU primary law by the Member States. There are three key findings of this thesis. The first finding is the absence of any real 'hierarchy of norms' within Union primary law, at least of the explicit or readily identifiable kind. This raises the question of whether it is necessary to establish a clearer 'hierarchy of norms' within Union primary law. The thesis argues that the absence of a 'hierarchy' per se is not intuitively problematic, given that it is not entirely necessary for the 'higher legal (or constitutional) sources' to be organised according to a set of 'meta-norms' or principles that function to guide the relationship between Union primary norms. But whilst a 'hierarchy of norms' is not necessary in principle, the situation as regards the relationship between different Union primary norms at present reveals much uncertainty about how they ought to relate to one another, and the actor(s) responsible for making such choices. Indeed, the absence of a clear 'hierarchy' raises problems when combined with the second finding: the increasing breadth of Union primary law and its 'constitutionalisation' within the Union legal order. The fact that Union primary law comprises of numerous different (and sometimes competing) requirements is problematic for determining and identifying the appropriate relationship between the norms. This is evidenced by the ad hoc approach employed by the Court to addressing the challenges that interacting primary norms pose. In turn, this reinforces the third and most important finding: the central role of the Court in dealing with the relations between the primary sources of Union law vis-à -vis other constitutional actors. On the whole, both the uncertainty and the malleability of the present framework in the absence of a clear 'hierarchy of norms' afford a significant degree of discretion to the Court to organise and make choices about the relative value of Union primary law in practice. This is problematic due to the possible incursions into the competences of the Member States and the Union's political institutions set out in the Treaty that follow from the Court's choices.
Supervisor: Dougan, Michael ; Horsley, Thomas Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral