Supremacy (European Union law)

The supremacy (sometimes referred to as primacy) of EU law is a principle of by which the laws of European Union member states that conflict with laws of the European Union must be ignored by national courts so that the European Union law can take effect. The legal doctrine emerged from the European Court of Justice through a number of decisions.

Development

In Costa v. ENEL.^[2] Mr Costa was an Italian citizen opposed to nationalising energy. Because he had shares in a private corporation subsumed by the nationalised company, ENEL, he refused to pay his electricity bill in protest. In the subsequent suit brought to Italian courts by ENEL, he argued that nationalisation infringed EC law on the State distorting the market,^[3] The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make. The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.^[4] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law.

It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.^[5]

Many countries' highest courts have stated that Community law takes precedence provided that it continues to respect fundamental constitutional principles of the Member State, the ultimate judge of which will be the Member State (more exactly, the court of that Member State), rather than the European Union institutions themselves^[6] This reflects the idea that Member States remain the "Master of the Treaties", and the basis for EU law's effect. In other cases, countries write the precedence of Community law into their constitutions. For example, the Constitution of Ireland contains a clause that, '"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..."

• C-106/77, Simmenthal II [1978] ECR 629, duty to set aside provisions of national law which are incompatible with Community law.

• C-106/89 Marleasing [1991] ECR I-7321, National law must be interpreted and applied, insofar as possible, so as to avoid a conflict with a Community rule.

Article I-6 of the European Constitution stated that "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." However, the constitution was never ratified but its replacement, the Treaty of Lisbon did include a declaration on primacy attached at the end (see box to the top right).

Particular countries

Depending on the constitutional tradition of member states, different solutions have been developed to adapt questions of incompatibility between national law and EU law to one another. Community law is accepted as taking precedence to the law of Member States, but not all Member States share the analysis used by the European institutions about why EU law overrides national law, when a conflict appears.

France

• Raoul George Nicolo [1990] 1 CMLR 173

Germany

• Solange II (Re Wuensche Handelsgesellschaft, BVerfG decision of 22 October 1986 [1987] 3 CMLR 225,265). In German Maze Case, the ECJ ruled not even a fundamental principle of national constitutional law could be invoked to challenge the supremacy of directly applicable Community law. This created a serious conflict between the ECJ and the German Constitutional Court.

Czech Republic

• Constitution of the Czech Republic states in the Article 10 of the Head 1 that every international treaty ratified by parliament of the Czech Republic is a part of the Czech legislative order and takes precedence over all other laws.^[7]

Italy

• Frontini v. Ministero delle Finanze [1974] 2 CMLR 372. In the Italian Vet Fees Case, the applicant sought to have a national law disregarded without having to wait for the Italian constitutional court do so. The ECJ ruled that every national court must apply Community Law in its entirety.

Poland

• The Constitutional Tribunal of Poland ruled that while EU law may override national statutes, it does not override the Constitution. In case of a conflict between EU law and the Constitution, Poland can make a sovereign decision as to how this conflict should be resolved (i.e. by changing the Constitution, leaving the EU or seeking to change the EU law)^[8].

United Kingdom

• C-213/89 Factortame I [1990] ECR I-2433, Duty on national courts to secure the full effectiveness of Community law, even where it is necessary to create a national remedy where none had previously existed. The House of Lords accepted supremacy of EU law in this case. This is important in context of British Parliamentary Sovereignty. Lord Bridge held that Parliament had voluntarily accepted this limitation of its sovereignty, being fully aware that, even if the limitation of sovereignty was not inherent in the EEC TReaty , it had been well established by jurisprudence before Parliament passed the European Communities Act of 1972.^[9]

Ireland

• An amendment to Article 29 of the Irish Constitution establishes the supremacy of EU law in Ireland. Article 29 endeavours to reconcile EU and Irish law by authorising enactments of laws and adoption of measures which are necessitated by EU membership.

• In Crotty v. An Taoiseach the court held Ireland could not ratify the Single European Act without a constitutional amendment as it would alter sovereignty regarding foreign affairs enshrined in Article 1 and 5. As amendments could fall outside of the mandate given at the time of accession, Ireland has held constitutional referendums for every new treaty since.

• In Meagher v Min of Agriculture, the court held the use of statutory instruments to transpose directives was necessary under Article 29, but the court indicated certain circumstances would require an act of the Oireachtas.
• The SC re-examined the issue in Maher v Min of Agriculture. Keane CJ held that the Oireachtas could delegate legislative power to the executive in cases where a statutory instrument merely transposed EU legislation into Irish law, but where discretion of how EU legislation was implemented exists, such a delegation is unconstitutional.

• Conflict between the Irish Constitution and supremacy of EC law was seen in SPUC v Grogan. SPUC had been granted an injunction preventing the distribution of abortion information by the defendant. The case was referred to the ECJ. Although it was held provision of abortion services fell under Article 50, the students were receiving no remuneration so their actions fell outside the scope of the treaty.

See also

• Thoburn v Sunderland City Council
• Van Gend en Loos v Nederlandse Administratie der Belastingen

Notes