European Union law primacy
Encyclopedia
The supremacy 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.
. 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, 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. 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.
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 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..."
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).
European Union law
European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
is a principle of by which the laws of European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
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
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
through a number of decisions.
Development
In Costa v. ENELCosta v. ENEL
Flaminio Costa v ENEL [1964] ECR 585 was a landmark decision of the European Court of Justice which established the supremacy of European Union law over the laws of its member states.-Facts:...
. 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, 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. 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.
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 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
Constitution of Ireland
The Constitution of Ireland is the fundamental law of the Irish state. The constitution falls broadly within the liberal democratic tradition. It establishes an independent state based on a system of representative democracy and guarantees certain fundamental rights, along with a popularly elected...
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
Treaty of Lisbon
The Treaty of Lisbon of 1668 was a peace treaty between Portugal and Spain, concluded at Lisbon on 13 February 1668, through the mediation of England, in which Spain recognized the sovereignty of Portugal's new ruling dynasty, the House of Braganza....
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.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 RepublicCzech RepublicThe Czech Republic is a landlocked country in Central Europe. The country is bordered by Poland to the northeast, Slovakia to the east, Austria to the south, and Germany to the west and northwest....
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.
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 PolandConstitutional Tribunal of PolandThe Constitutional Tribunal of the Republic of Poland is a judicial body established to resolve disputes on the constitutionality of the activities of state institutions; its main task is to supervise the compliance of statutory law with the Constitution....
ruled that while EU law may override national statuteStatuteA statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s, it does not override the ConstitutionConstitution of PolandThe current Constitution of Poland was adopted on 2 April 1997. Formally known as the Constitution of the Republic of Poland , it replaced the temporary amendments put into place in 1992 designed to reverse the effects of Communism, establishing the nation as "a democratic state ruled by law and...
. 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).
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 SovereigntyParliamentary sovereigntyParliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. In the concept of parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions—including any executive or judicial bodies...
. 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.
Ireland
- An amendment to Article 29 of the Irish Constitution establishes the supremacy of EU law in IrelandRepublic of IrelandIreland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
. 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 TaoiseachCrotty v. An TaoiseachCrotty v. An Taoiseach was a legal action taken in 1987 in the High Court of Ireland and in the Supreme Court on appeal by Raymond Crotty, historian and economist against the Irish Government...
the court held Ireland could not ratify the Single European ActSingle European ActThe Single European Act was the first major revision of the 1957 Treaty of Rome. The Act set the European Community an objective of establishing a Single Market by 31 December 1992, and codified European Political Cooperation, the forerunner of the European Union's Common Foreign and Security Policy...
without a constitutional amendment as it would alter sovereignty regarding foreign affairsForeign AffairsForeign Affairs is an American magazine and website on international relations and U.S. foreign policy published since 1922 by the Council on Foreign Relations six times annually...
enshrined in Article 1 and 5. As amendments could fall outside of the mandate given at the time of accession, Ireland has held constitutionConstitutionA constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
al referendumReferendumA referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
s 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 OireachtasOireachtasThe Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
. - The SC re-examined the issue in Maher v Min of Agriculture. Keane CJ held that the OireachtasOireachtasThe Oireachtas , sometimes referred to as Oireachtas Éireann, is the "national parliament" or legislature of Ireland. The Oireachtas consists of:*The President of Ireland*The two Houses of the Oireachtas :**Dáil Éireann...
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 abortionAbortionAbortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
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 CouncilThoburn v Sunderland City CouncilThoburn v Sunderland City Council is an important English constitutional law case. It advances the theory that there exists a hierarchy of Acts of Parliament, whereby those Acts affecting "the legal relationship between citizen and State" or "fundamental constitutional rights" form a special and...
- Van Gend en Loos v Nederlandse Administratie der Belastingen