The focus of this essay is to analyze the relationship between supremacy in Europe after enlargement, the European constitution, and EU law within individual Member States. The main argument presented is that the concept of supremacy in EU law is going through substantial transformations, leading to debates that impact the constitutional jurisprudence of national courts across various Member States. One question raised is whether surrendering sovereignty and prerogative powers to the Union has been an uncomplicated task for Member States in the European Union.
The issue of the supremacy of the European Union as a fundamental principle arises both practically and theoretically. It is related to the relationship between national law and the EU. This becomes even more interesting with the enlargement of the EU and the ratification process for the European Constitution. The Treaties themselves do not mention the supremacy of EU law or its hierarchy over national law. Instead, this principle has developed through case law from the European Court of Justice.
The case of Costa v ENEL established the supremacy of EU law. This case involved a conflict between several Treaty provisions and an Italian statute. The Italian statute nationalized the electricity company in Italy. The ECJ determined that the creation of EU law was a matter of jurisprudence. Different Member States related to this decision in various ways. The case of Internationale Handelsgesellschaft further reinforced the idea established in Costa. It stated that even secondary EU law, such as regulations, held a higher status than the specific constitutions of Member States.
Even though the UK does not have a written constitution, the doctrine of EU law’s supremacy has a significant impact on most other EU Member States. The ECJ is responsible for developing this doctrine, but it is recognized that EU law has a fictional structure. In general, the majority of member states do not recognize the supremacy of EU law, except for the Netherlands. According to the 1963 constitution,
Joseph Fleuren, an EU academic writer, comments on the amendment regarding supremacy. According to him, self-executing provisions in the treaties and resolutions of international organizations are legally binding on individuals and entities and have superiority over national law. It is noted that the Netherlands’ acceptance of the supremacy doctrine is not based on its own constitution but rather on its acknowledgment of the European Union in its legislation.
According to the European Union (Amendment) Act 2008, EU law has direct effect on national courts, even in retrospect. Steiner’s commentary suggests that member state courts have accepted the supremacy of EU law as long as they consider it to be directly effective. This indicates that supremacy has a broader scope than the EU law’s understanding of direct effect.
According to the general rule, national law is deemed inconsistent with current and recent EU law, as demonstrated in the cases of Von Colson and Francovich. However, the Treaty of Rome stipulates that European Union Law takes precedence over British legislation from 1972. This is exemplified in the case of R v Secchi, where the judiciary members confirmed that the original European Union law conflicts with domestic law. This is because the European Communities Act mandates that English law, both in common and statutory instruments, must comply with European Union law.
The main idea presented in this text is that the United Kingdom has willingly recognized the jurisdiction of EU law. Upon analyzing UK case law, it becomes evident that there is ambiguity surrounding the European Communities Act (ECA). This raises the question of whether it allows for the inclusion of EU law into the English Legal System. The United Kingdom is the initial Member State to be discussed regarding this issue. When a nation joins the EU as a Member State, it agrees to comply with both primary and secondary EU laws.
Upon joining the European Union in 1972, the UK encountered a constitutional issue stemming from its commitment to the dualist theory. Under this theory, international and internal Member State law are regarded as separate legal systems. The Treaty of the European Union mandates that all Member States enforce its provisions, creating a dilemma for the UK as its national laws hold jurisdiction solely within its borders.
In order for EU law to be effective in Member States, a state must either adopt legal provisions from the Treaty or incorporate legal implications into its system. It is evident that the UK can only accept the doctrine of supremacy if it is expressly added to the unwritten constitution or if acts of Parliament are implemented accordingly. The traditional doctrine of parliamentary sovereignty poses another challenge when compared to the European Union’s supremacy doctrine.
The principle of parliamentary sovereignty in a constitutional context states that “Parliament is the ultimate legal authority in the UK, with the power to create and revoke any law.” The Factortame cases illustrate how this supremacy is implied. These cases are significant because they recognize the doctrine only when it directly impacts national law and the British legal system. Consequently, the decision presents an alternative resolution, highlighting that in the UK, EU law originates not from the development of the European Court of Justice (ECJ), but from the principle of parliamentary sovereignty.
In Germany, the doctrine of supremacy is based on a conceptual foundation rather than a voluntary acceptance, as stated by Gerards. According to Gerards, the most crucial aspect is that German courts will only acknowledge the supremacy of European Union Law in specific cases where there is a direct conflict with the German Constitution. This principle was established in the case of Internationale Handelsgesellschaft, where the court rejected the supremacy doctrine of EU law without pre-existing principles.
The German courts have expressed that, in a hypothetical scenario where there is a conflict between the approach of EU law and the national law, the German constitution would take precedence. This is because the German courts rely on the fundamental rights stated in the constitution. The German courts consider themselves to have the highest authority or “Kompetenz” when it comes to deciding on matters related to EU law. Therefore, this contradicts the statement made in the essay question, as the German authorities do not have voluntary competences in accepting the initial doctrine, despite the opposite opinions held by the ECJ.
In France, the national constitutional courts consider their own constitutions as the basis for EU law. The main question is whether there is recognition of the supremacy of EU law and if French courts have limited jurisdiction. One instance of this is seen in the case Semoules where the supreme court rejects the supremacy doctrine, arguing that EU law is incompatible and does not have the authority to review French legislation. However, a different perspective is taken by the French judiciary in the important case Café Jacques Vabres.
According to the French constitution, if there is a conflict between national law and a ratified international treaty, obedience to European Union (EU) law is necessary. In France, EU law holds superiority over statutes but is still subordinate to the constitution. However, it should be noted that the French courts do not fully adhere to the European Court of Justice’s interpretation of EU law as supreme over all national laws.
Just like Germany, both France and Italy require a constitutional amendment in case of a conflict between their respective constitutions and EU law. This ensures the application of EU law within their legal frameworks. Additionally, Italy also incorporates EU law through its constitution instead of solely relying on rulings from the European Court of Justice (ECJ).
The case of Frontini confirms Gerards’ statement that the constitutional court of Italy acknowledges the ability of EU law to infringe upon fundamental principles of the constitution. Therefore, the Italian courts do not recognize EU law as superior to the national constitution. This ruling was later reinforced by Granital, a more recent case in which the Italian constitutional court asserted its authority to decide on matters concerning the relationship between national and European law.
It seems that national authorities see the potential of national law as the basis for EU law. In Poland, a similar structure to the EU law’s supremacy doctrine is recognized. According to the Polish Constitution, national law can be delegated to directly accept international organizations’ law and take priority in specific cases. This indicates that the doctrine has been accepted according to the constitution.
Both articles assert that EU law cannot permit decisions that go against the Polish constitution. The Constitutional Tribunal of Poland has declared that although EU law can supersede national statutes, it does not possess jurisdiction over the constitution. In situations where there is a clear clash between EU law and Poland’s constitution, the Member State holds the authority to decide how it should be implemented. Additionally, Ireland’s constitution supports the doctrine of supremacy.
This amendment asserts that the European Union holds complete supremacy over the national law and constitution of Ireland. However, according to Gerards’ correspondence, the Irish national authorities seem to derive their supremacy from the European Union directly. Nonetheless, in the Unborn Children case, the Irish Supreme Court appeared to reject this doctrine of supremacy. As a result of this case’s injunction conflicting with the free movement of services, particularly regarding student groups, recognition from the EU was denied. Hence, it appears that in certain cases, voluntary acceptance could offer a more accurate perspective.
In contrast, the national court in Ireland rejects the supremacy doctrine, aligning with other Member States and the principles of the Irish constitution. The European Court of Justice’s belief in supremacy has sparked debate over every provision and norm in the constitution and law. The ECJ’s role is not to question how Member States handle conflicts between national and European Law, but rather to interpret EU Law as a whole. Supremacy is inherent in EU law, reflecting the legitimacy granted by the founding treaties. This indicates that written law cannot be considered definitive or exhaustive. Through interpretive jurisprudence and voluntary acceptance of European law by Member State authorities, there may be room for new principles to be formulated. Ultimately, this suggests that the legitimate force of EU law cannot be diminished.
