Overlapping norms in the EU legal order
Item statusRestricted Access
Embargo end date09/07/2020
Hancox, Emily Victoria
In this thesis I draw attention to ‘overlapping norms’ as a distinct feature of EU law, show why EU lawyers should be concerned about how they inter-relate, and make the case for clearly articulated and consistently applied principles that govern their interrelationship. Norm overlap occurs when more than one norm could apply in a particular case and each of those norms is a variation on the same basic right, command, prescription or permission. As this thesis shows, norm overlap is prevalent in EU law as a result of three main factors: the highly substantive content of the Treaties, the close relationship between unwritten general principles of Union law and written sources of EU law, and the quality of legislative drafting. Despite the frequent occurrence of norm overlap in EU law, its existence has gone largely unacknowledged in legal scholarship. Similarly, so have the constitutional consequences that stem from how the ECJ determines the interrelationship between overlapping norms. Through a series of case studies, linked by the EU’s commitment to protection against discrimination, I examine how the ECJ determines questions of priority between overlapping norms. Specifically, I test the role of basic priority principles – such as respect for express clauses and the principles of lex superior, lex posterior and lex specialis – in determining the inter-relationship between norms. Although under-discussed in the case law of the ECJ and EU legal scholarship, these priority principles provide a useful starting point against which to compare ECJ practice. Extensive doctrinal research leads to two important findings. First, the ECJ usually applies existing priority principles to determine the inter-relationship between overlapping norms, even though it does not tend to refer to these principles explicitly. Secondly, when the ECJ does depart from these priority principles, it is usually without proper justification and often negatively impacts upon legal certainty, institutional balance, the balance of powers between the EU and the Member States, and rights protection.