The European Court of Justice (CJEU) purports that EU law holds supremacy over national law and has created an autonomous legal order, which will remain in force until the Treaty is amended to say otherwise. This assertion seems plausible in light of the supranational nature of the EU. EU law does not share the usual remit of international law whereby international decisions are reached by consensus among the States. It is supranational in nature meaning that the Member States have delegated some of their decision making powers (sovereignty) to the EU Institutions (the European Parliament and the Council of the European Union) and as a result, decisions can be made above and without their consent an intergovernmental level. On the other hand, the national courts insist that EU law does not hold ultimate supremacy. In their opinion the EU legal order holds supreme status because they have accepted its existence in their national legal orders.
The following analysis aims to put the supremacy argument to bed at a speculative level, whether the national courts will ever accept the CJEU's view is another question entirely. What remains clear is if the CJEU are correct then the foundations of the EU legal order are strong because it is uniformly applied across the Union. However if the national court's approach is correct then EU law is nothing more than a mere form of ordinary international law. Thus, exposing the theoretical weakness in the EU legal order, namely as Kowalik-Banczyk highlights the ‘EU may lose its battle as a supranational state because of this power show’ by the Member States.
Interestingly, the supreme status of EU law is not expressly included in any Treaty Articles under the Treaty on the Functioning of the European Union (TFEU) or the Treaty on European Union (TEU). The CJEU have justified this by stating, it is so obvious that it does not need to be there and is implied into the Treaty. This argument is supported by Principle of Sincere Co-operation Article 4(3) (TEU) which states;
‘pursuant to the principle of sincere cooperation, the Union and the Member States shall in full mutual respect, assist each other in carrying out tasks which flow from the Treaties ... 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 ... the Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’.
Arguably, this does put forward evidence that the supremacy of EU law flows from the Treaty because Member States are required to take any steps the EU deems appropriate in upholding EU law. As the Member States are obliged to comply with these rules and are duty bound under Simmenthal II to apply EU law in their domestic legal systems as will be discussed later, it is perfectly clear why the CJEU argue that the supreme status of EU law is inherent in the EU legal order.
Further justification for the inherent supreme status of EU law can be found in Article 267 (TFEU), also known as the preliminary reference procedure which requires that if there is any doubt in the interpretation/ application of EU law should be referred to the CJEU. This highlights that the CJEU sits at the top of the legal order and due to this system of precedent rests above the national courts. Evidentially the EU legal order is hierarchical rather than co-operative because the CJEU is purporting itself as the Supreme Court. As identified in Rheinmuhlen Dusseldorf there can be no discretion held by the Member States in deciding whether to refer the matter to the CJEU. This would compromise the EU legal order and in my opinion place it in a state of high vulnerability. As Hartley states the;
‘importance of this is that it gives the CJEU the last word on the meaning of any provision of Union law that is in dispute ...thus, the CJEU is enabled to penetrate directly into the judicial process of the Member State and to an extent is permitted to take control of the process'.
Before the EU was formed Member States took differing approaches to the primacy they gave to international law/ treaties. The majority of States such as the United Kingdom, Germany and Ireland were dualist meaning that when an international Treaty was ratified it did not become part of their national law unless the passed a national provision to incorporate the international law into their legal system. The remainder of countries such as France and Belgium were monist, meaning that when an international treaty was passed it becomes part of their national law immediately without the need for national law to be passed. Monist States gave primacy to their international obligations over the ordinary national law that had been created at the time the international treaty was ratified. However they did not give international law primacy over constitutional law and not necessarily to laws passed after the international treaty had entered their legal system. Problematically, dualists could simply not pass provisions to incorporate law they did not agree with into their legal systems. Furthermore, monists could stop international law taking effect in their legal systems by passing law at a subsequent date to the treaty.
Identifiably, these approaches undermined the uniform application of EU law across the Member States, as loop holes were provided and opportunities were available to disapply Union law. In order to uphold the Union legal order membership of the EU required that dualist and monist States adjusted their position with regard to EU law as an international treaty. To ensure Member States could not escape their Union obligations, they were obliged to become enhanced monists. This meant that dualist states were to pass a national law incorporating past; present and future EU law into their national legal systems and precedent should always be given to Union law regardless of the date that it came into force. With regard to monist States they were obliged to give primacy to all Union law over national law regardless of its enforcement date and more significantly, over all their constitutional laws.
It has become clear that the so called implied primacy principle is paramount to the existence of the Union. This was made clear from the creation of the Union under the European Coal and Steel Community (Treaty of Paris 1953), where the original Member States agreed to a loss of sovereignty in some policy areas. This clear transfer of power from the national Parliaments to the EU Institutions is a clear sign that EU law reigns supreme. In relation to this delegation of power, the system of majority voting was empowered, which meant as long as the majority of the Member States agreed to the implementation of Union law, it was applied across the whole of the Member States even those who were against the law. As Hartley states ‘this is an impressive advance on international law’, indeed it does highlight the evolution of the EU which has developed out of the normal remit of international law into the most successful spectrum on international law to date in history.
Another justification given to the implied primacy of EU law is provided by Article 258 (TFEU), infringement proceedings. This highlights two different elements regarding supremacy. Firstly from the perspective of the EU citizens as De Witte highlights this procedure presents an alternative to litigation, which 'justifies that EU law has become a charter of not just economic rights but also of consumer, social, ecological and citizenship rights’. As EU law is concerned with upholding and conferring the rights of the EU citizen Albi and Elsuwege go further and purport that ‘sovereignty should be given to its rightful owners the people or rather the peoples of European, as it upholds the identify of EU citizenship and as 57% of EU citizens regard themselves as European’. If EU Citizens can accept EU law primacy then why can Member States not? Surely they should be supporting the societies that they ultimately uphold? Secondly, from the perspective of the EU Member States the threat of infringement proceedings and the threat of actions before national courts under the Francovich I principle of state liability ultimately enhances enforcement of EU law as Member States fear courses of action against them. As Hartley states this ‘makes clear to the Member States that the CJEU is binding upon them and is an ideal that all international courts should be moving towards’.
Interestingly, one of the controversial aspects that failed the Constitutional Treaty was that it laid down in Article 1-6 the supremacy principle expressly. As can be expected the Member States did not adhere to this politically sensitive term, they thought that they would lose their systems of State governance and in the UK even the Queen! But this was not true it merely stated what the above impliedly justifies. Significantly, the Treaty of Lisbon has annexed this principle to a mere Declaration Number 17 stating: 'the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law’. Although this is not a set in stone Article it is still of great significance and does not as Albi and Elsuwege suggest 'safeguard the Member States from EU primacy and strengthen their position'. It is the first time in which the CJEU’s principle has been expressly endorsed by all of the Member States, thus supporting and providing greater authority for their argument.
The CJEU case law highlights their view that the legal order of the EU is independent with its own autonomous force. In Van Gend En Loos v Nederlandse Administratie der Belastingen the CJEU emphasized the unique status of the legal order that the Treaty of Rome had created purporting that ‘this Treaty is more than an agreement which merely creates obligations between the contracting States’ as now contained in the Article 30 ‘the objective of the Treaty is to establish a common market, implying more than an agreement which merely creates mutual obligations’. Although the CJEU did not make any express statement about the status of EU law within the national legal systems as De Witte highlights;
‘the biggest revelation was the question whether specific provisions of the Treaty had direct effect was to be decided by the CJEU rather than by the various national courts according to their own views on the matter’.
Thus, the creation of the direct effect principle made it clear that ultimate supremacy lay within the EU and Member States acknowledged this under Article 267 (discussed above). The CJEU stated that ‘the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights’ and given full priority to the EU legal order.
The CJEU went further in Costa v ENEL emphasising that the Member States were to apply EU law in the national courts as the ‘executive force of Community law and cannot vary from one state to another otherwise it would not be unconditional but merely contingent’ and undermined. The CJEU upheld the independence of its legal order stating; 'as opposed to other international treaties, the Treaty (ECC) has created its own legal order which was integrated with the national order of the Member States the moment the treaty came into force; as such it is binding upon them ... the transfer, by the Member States from their national order, in favour of the Community order carries with it a clear limitation of their sovereign rights against which a subsequent unilateral law incompatible with that aims of the Community cannot prevail ... the law stemming from the Treaty an independent source of law could not because of its special 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’. Thus, the CJEU made the Member States aware that EU law must be given primacy over all national law because it is a fundamental requirement of the Treaty. It is evident from this that EU law, does indeed flow directly from the Treaty. Furthermore, Costa emphasises that EU law does not only have external supremacy but it also has internal primacy as national courts are to disapply conflicting national legislation. Article 267 the preliminary reference procedure has been used to justify this process and as De Witte purports ‘if States accept legal duties at an international level, they should be prepared to allow for translation of those duties into daily practice, by means of judicial and other instruments’. He furthers this saying that this ‘ingenious judicial mechanism’ has destroyed national legal norms and Member States are now to give total primacy to the EU legal order.
Further emphasising the independent force of the EU legal order the CJEU in Internationale Handelsgesellschaft upheld that ‘recourse to legal rules and concepts of national law to judge the validity of instruments promulgated by Community institutions would have the effect of harming the unity and efficiency of Community law’. The most important outcome of this case, was that it revolutionised the status of Union law and stating that it was to prevail over all national law regardless of its status, what became clear was that the EU was not going to allow constitutional law to hinder its primacy and was no longer to be regarded as the law of the land. Thus, the primacy of the EU ‘cannot be affected by allegations that strike at either the fundamental rights as formulated in the State’s Constitution or the principles of a national constitutional structure’ otherwise it would constantly be undermined.
It has been made clear from Simmenthal II that being a member of the EU carried with it obligations to uphold its unique primacy. Paragraph 17 highlights that when joining the Union, Union law renders ‘automatically inapplicable any conflicting provisions of current national law and also precludes the valid adoption of new legislative measures to the extent to which they would be incompatible with Community provisions’. The significant ruling in this case which underpinned the importance of internal primacy can be found in paragraph 24, which states that the national court's are under a duty to disapply any national law that conflicts with Union law. This is clearly justifiable because if Union law was to be given less status and priority than conflicting national law then uniform application of Union law would be undermined and the Union would cease to be in existence. As the CJEU stated; it ‘would amount to a corresponding denial of the effectiveness of obligations undertaken unconditionally and irrevocably by Member Sates pursuant to the Treaty and would thus imperil the very foundations’.
Hartley emphasises that ‘Community law is therefore an independent legal system that is separate from the legal system of the Member States and from other international law’. However he critically states that the EU ‘owes its continuing existence to the Member States themselves and not the Treaty, as without them there would be no Community’. (This will be discussed at a further date: to be updated).
