SUPREMECY OF EU LAW

It is one of the cornerstone principles of EU Law. This principle entails that in the
case of conflict between a measure of National Law and a measure of EU Law,
primacy has been given to EU Law. Supremacy can be looked at from two
perspectives. Firstly, from the European Court of Justice (ECJ) point of view: which
has a rather absolute opinion on this principle; and secondly from the Nation Courts
point of view: which has a nuance opinion of this principle.

What does the Principle of Supremacy mean?

EU law prevails over all forms of national law, including the national constitutions.
Moreover, it prevails over prior and subsequent national law. In other words, it is not
possible to circumvent this primacy by adopting a conflicting legislature later.
This principle was derived from ECJs two fundamental case rulings

VAN GEND

EN

LOUS

The ECJ ruled that, the EC Treaty did not merely regulate mutual obligations
between Member States, but established what the court called a:
new legal order of international law for the benefit of which the states
have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only the member states but also their
nationals.
Moreover, in addition to imposing obligations upon individuals, community law also
infers upon them right that become a part of their legal heritage. These rights can
be found expressed in the Treaty, but they also arise by reasons of obligations that
the treaty imposes upon individuals, Members States and EU Institutions.

COSTA

ENEL

The ECJ extended the principle in VAN GEND EN LOOS in this case. It ruled that the
European Economic Community (EEC) Treaty has created its own legal system
which, on the entry into force of the Treaty, became an integral part of the legal
systems of the Member States and which their courts are bound to apply. there had
been a transfer of power by Member States from domestic to Union institutions".

In other words, there had been a transfer of legal systems by Member States from
National law to Community law. As a consequence, the rights and obligations arising
under the treaty carries with it a permanent limitation of their sovereign rights,
against which a subsequent unilateral act incompatible with the concept of the
Community cannot prevail.
There are two practical effects of the principle of supremacy:
1. conflicting national legislation has to be set aside
2. the national judge has to do this on his own motion.
These claims of ECJs are examined critically for they may represent only a partial
statement of the authority of EU law. The real power in the Union remains firmly
with the national administrations. The execution or administration of EU law is a
matter for domestic authorities and national governments within Member States.
Administrative actors are central to not just enforcement of but also popular
awareness and acceptance of the authority of EU law.

Declaration 17
There is no mention of primacy of EU law in the Treaties. However, Declaration 17
attached to the Treaty of Lisbon states:
the treaties and the laws adopted by the Union on the basis of the
treaties have primacy over the laws of the Member States.
This Declaration is essentially a codification of the ECJs two fundamental case law
rulings: COSTA and VAN GEND EN LOUS.

Opinion of the Council Legal Service: EU Council Doc.

11197/07, 22 June 2007
An opinion of the Council Legal Service was also attached to the Lisbon Treaty,
which provides only sparse information:
It results from the case law of the Court of Justice that primacy of EC law
is a cornerstone principle of Community law. According to the Court, this
principle is inherent to the specific nature of the European Community. At
the time of the first judgment of this established case law (Costa V ENEL)
there was no mention of primacy in the Treaty. It is still the case today.
The fact that the principle of primacy will not be included in the future
treaty shall not in any way change the existence of the principle and the
existing case law of the Court of Justice.

This document merely provides a reassurance of the uninterrupted continuity of

primacy principle, established in Costa. However, a broader interpretation of this
document notes that this is the first time that the Costa case law has been explicitly
endorsed and ratified by all Member States. Such ratification suggests that the
primacy of EU law can no longer be relegated to merely being the view of the Court
of Justice. Instead, primacy now represents the political consensus as to the status
of EU law. National Courts would have to take into account this political vindication
when they apply the principle in future. If a national constitutional law were to deny
the primacy of EU law, it would correspondingly be placing itself in an institutionally
isolated position.

Primacy of EU Law
The primacy principle established in COSTA illustrated ECJs decision in INTERNATIONALE
HANDELSGESELLSCHAFT, which stated that:
Recourse to the legal rules or concepts of national law in order to judge the validity
of measures adopted by the institutions of the Community would have an adverse
effect on the uniformity and efficacy of Community law. Then validity of such
measures can only be judged in the light of Community law
Moreover, this principle applies whenever a conflict appears before any court or
body, which is competent to take legal decision.
The ECJ in SIMMENTHAL held:
every national court must, in a case within its jurisdiction, apply Community
law in its entirety and protect rights which the latter confers on individuals and
must accordingly set aside any provision of national law which may conflict with it,
whether prior or subsequent to EU law.
However, national constitutional courts willingly grant EU law authority provided
that its not violating certain national taboos. Their assertion of national sovereignty
is rather an assertion of the power to put ultimate safeguards into action rather
than an assertion of regular control of the application of EU law: GAUWEILER.

Exclusive Competence
In fields of exclusive competence only the Union may legislate, with Member States
being able to legislate only if authorized by the Union or to implement EU measures.
From a national perspective this is the most draconian of competences as it involves
a complete surrender of jurisdiction to the Union. The fields of exclusive
competences are therefore limited:

The Customs Union;

The Competition rules necessary for the functioning of the internal market;

Monetary policy for the Member States whose currency is the euro;

The conservation of marine biological resources under the common fisheries

policy;
Common commercial policy.

Shared Competence
Fields of shared allow the Member States to legislate to the extent that the Union
has not legislated. This model is one of co-operative federalism, in which a shared
responsibility is granted to both the actors to realize a common policy. It applies to:

The internal market;

Social policy;

Cohesion policy;

Agriculture and fisheries, excluding the conservation of marine biological

resources;
Environment;

Consumer protection;

Transport;

Trans-European networks;

Energy;

Freedom;

Security and justice;

Common safety concerns in public health matters.

Other fields of Competence

The three final types of competence relate to fields where the Union has no formal
legislative competence and where, in a conflict between EU measures and national
laws, national law is to have formal precedence. They are found in the TREATY ON THE
FUNCTIONING OF THE EUROPEAN UNION (TFEU):

Economic and Employment Policies: ARTICLE 2(3) TFEU;

Common Foreign and Security Policy: ARTICLE 2(4) TFEU;

Supporting, Coordinating and supplementing action: ARTICLE 2(5) TFEU.

Limits of EU Legal Sovereignty

Doctrine of Conferred Sovereignty
ARTICLE 5 OF THE TREATY OF THE EUROPEAN UNION (TEU) holds:
1. The limits of Union competences are governed by the principle of
conferral
2. Under the principle of conferral, the Union shall act only within the
limits of the competences conferred upon it by the Member States in
the Treaties to attain the objectives set out therein. Competences not
conferred upon the Union in the Treaties remain with the Member
States.
Alongside this, reference is made to the same principle in ARTICLE 1 OF THE TFEU:
This Treaty organizes the functioning of Union and determines the
areas of delimitation of and arrangements for exercising its
competences.
The principle of conferral powers expresses two complementary ideals:
1. the EU Treaties alone determine the material limitation of EU legal authority.
EU institutions cannot act beyond them, and informal political
accommodation by national governments cannot determine the limits of EU
law. They have to act within the parameters of the Treaties in determining the
remit of EU law.
2. the EU has limited government. It is only to operate in specific confined
fields. This was given concrete expression in the Treaty of Lisbon, which set
out a catalogue of powers for the Union: ARTICLE 2; ARTICLE 37 TFEU.

The Fidelity Principle

A requirement on Member States simply not to breach EU law would be insufficient
to secure the full effectiveness of the EU legal system. All legal systems confer
responsibilities upon public bodies to ensure that the law is generally applied,
policed and accessible and that there are sufficient remedies for breach of the law.
This is known in the United States as the fidelity principle. EU law sets out this
principle in ARTICLE 4(3) OF THE TEU:
The Member States shall take any appropriate measure, general or
particular, to ensure fulfillment of the obligations arising out of the
Treaties or resulting from the acts of the institutions of the Union

This provision applies not only to Member States but also to the EU institutions,
which must co-operate with national bodies to secure the full effectiveness of EU
law.