Supranationalism and the origins of supremacy
EU Law Supremacy is a legal principle involving that, in areas where EU Law is relevant to a case that presents a conflict of norms; EU Law should prevail over national Law. It is one of the key principles created by the ECJ that ensure the enforceability of the European legal order. Supremacy comes along with direct effect, indirect effect and State liability (topics covered in Chapter 4).
Supremacy is rooted in supranationalism. Supranationalism is a method of decision-making by a community of States, wherein officials are representing their Member States. Unlike federalism Member States remain sovereign because they decided voluntarily to be part of the organization and are free at any time to leave it. However, Member States are delegating some of their sovereign powers to the community. They might, for instance, be forced to implement a decision that they did not consent with, as far as decisions are taken by majority votes.
The principle of supremacy is not written in the founding treaties, yet is considered to be a fundamental principle of the European Union. It is linked to the doctrine of autonomy, which implies that EU’s institutions are independent from its Member States, and creates an external source of Law despite being created by the Member States themselves. Supremacy’s main consequence on the EU legal order is to reinforce its autonomy. The importance of supremacy in the integration of the European construction was highlighted by Cruz at the time of the European Communities, which he claimed: “without supremacy community law ceases to be communataire”.
EU LAW SUPREMACY
The rise of the new European legal order
While supremacy is about the relationship between national Law and EU Law, it is necessary to present the different approaches of international Law within the different Member States. On this issue, European States have adopted two different conceptions: monism or dualism. The monistic conception, on the one hand, provides that international accords, which through ratification bind a country in international law, are considered to be part of the internal legal system without the need for specific measures to incorporate them. The principle of monism is well known in many EU countries, such as France for example, and has been accepted quite early by the Court of Justice.
The dualistic conception, on the other hand, implies that international accords do not become part of the internal legal system at the moment of ratification but only if and to the extent that they are specifically incorporated into national law. This approach is normally taken by the United Kingdom. In addition to this, the particular importance attributed to the sacred parliamentary sovereignty worsens the compliance with the principle of supremacy.
The development of EU Law created much more problem within dualist States. At first it appears to be conflicting with the main principles regulating the European legal order: supremacy, direct effect and indirect effect. Supremacy is also known as “primacy of EU law”, from the French primauté du droit de l’Union. The reasons of its development by the Court are various. First of all, while the main objective of the Communities was to create a single Market, Law had to be harmonized through a uniform application of EU Law within the Member States.
In addition to this, the whole structure of Europe was already based on supranationalism which implies that the interests of the community prevail over national interests. Therefore, supremacy was a necessary component of uniformity and consistency across the Union. The recognition of EU supremacy has two major consequences on the competences of national institutions, often referred to as the doctrine of pre-emption:
It places the CJEU above the national Courts in case of conflict of interpretation of EU Law.
It prevents legislative bodies in the Member States from enacting legislation that might be incompatible with EU Law.
The European construction has been going on for more than 60 years and there is still a debate about supremacy. This is probably because it touches one of the most delicate areas of EU Law because it is related to sovereignty. The nationalists’ biggest fear is to lose sovereignty to the benefits of the community. Unionists would rather qualify it as a mere transfer of sovereignty.
While nothing in the founding treaties was expressly mentioning EU supremacy, the closest the pioneers tackled this issue was this so-called “duty of loyalty” enshrined by Article 10 EC (now replaced by article 4(3) TUE) which stipulates: “The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union”.
The abandoned Treaty Establishing a Constitution for Europe (TECE) included a special provision on supremacy. Instead, declaration 17 of the Lisbon Treaty merely mentions the “primacy”, making reference to the CJEU’s case law. However, the recognition of EU supremacy is mostly due to an intense legislative activism of the ECJ, which has built the principle throughout a range of cases.
The Court, in its case law, before going into a detailed definition of supremacy, acknowledged the “specificity” of the EU legal order that has a “special and original nature” (ECJ Costa v ENEL (Case 6/64) [1964]). This is why supremacy is referred as the rise of a new legal order. The EU is a sui generis entity, it is unique and it differs from the traditional models of national or international law.
The famous case affirming the specificity of EU Law is Van Gend en Loos. Nevertheless, it mainly concerns the principle of direct effect of EU Law, another crucial pillar of EU Law enforceability, and will therefore be more fully discussed in the next Chapter.
This brought about academic debate on the concept of parliamentary sovereignty. Authors such as Wade stated that the fact of dis-applying an act of Parliament for an allegedly incompatibility with a superior source meant that “something drastic had happened to the traditional doctrine of parliamentary sovereignty”. He claimed that this was revolutionary on the grounds that the Courts were no longer prepared to uphold absolute parliamentary sovereignty. Alternatively Craig and De Burca argued that sovereignty remained intact. Parliament itself voluntarily decided to set the limits of its sovereignty. The ECJ just used the competence it has been attributed by the Member States. On the other hand McCormick argued that in the modern world it was no longer realistic to speak in terms of absolute sovereignty due to the inter-dependence of economies.
However many English Lawyers, did not accept the European Court’s view. They contended that European law overruled English domestic law only because parliament had chosen to make it so, and that parliament could change its mind at any time. A balance is thus preserved between the supremacy of EU law in matters of substantive law, and the proper supremacy of the UK parliament in establishing the legal framework within which EU law operates. The recent events that led the UK to trigger article 50 TFEU support this last argument. Brexit has shown that the UK Parliament voluntarily transferred some powers to the Union and was entitled to take them back at any time.
Another act is finally enacted in 2011, The European Union Act, by the coalition government that makes a number of statutory qualification about the future relationship between the EU and the UK. A very interesting provision related to the issue of supremacy can be found in section 18 of the act. The latter subjects the UK membership to the continuing will of Parliament. A simple act of Parliament is all that is needed to exit from the EU.
EU LAW SUPREMACY
The impact of supremacy on other Member States
In France, accepting EU supremacy did not raise such controversies. It can certainly be explained by the fact that it has a monist approach of international Law. At quite an early stage, the Court of Cassation in the case Von Kempis v Geldof (1976) 2 CMLR 462, acknowledged the recent CJEU case law in declaring that EU Law takes precedence over French legislation.
However, the UK is not the only country to presented difficulties with supremacy in their national jurisdiction. It was also the case in other European Union member states such as Germany and Poland. For example in Germany, the reluctance to accept supremacy was based on a fear of potential violation of Human Rights contained in the German Constitution.
Solange I judgment,German Constitutional Court (BVerfGE 37, 271) [1974] 2 CMLR 540
Facts: The case involved an A German import/export company for which an export deposit of DM17,026.47 was declared to be forfeited after the firm had only partially used an export licence gran-ted to it for 20,000tons of ground maize.
Preliminary Ruling: The German Constitutional Court complained about the legal uncertainty left by the lack of a codified catalogue of fundamental rights and held that the fundamental rights guaranteed under the West German constitution would prevail over EEC law for so long as this situation continued.
The German Constitutional Court finally abdicated in the case Wunsche Hendelsgesellchaft (1987) 3 CMLR 225 provided that the EU Law could guarantee as least an equivalent protection. On the issue of sovereignty, the German Constitutional Court always maintained a stable position: Germany remains the only sovereign. In the case Brunner v The European Treaty(1994) 1 CMLR 57, the Court states: “Germany is one of the ‘Masters of the Treaties’ … Germany thus preserves the quality of a sovereign state in its own right”.
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