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Eu Supremacy

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When asked to critically discuss the statement: “The Supremacy or Primacy principle is central to understanding the unique nature of the European Union Legal Order”, there are a few things we must first understand as this statement actually asks us three questions. Firstly what is the “unique nature” of the European Union (EU) Legal Order? Second, what is the supremacy or primacy principle? And finally, how important is the supremacy or primacy principle in achieving the goals of the European Union Legal Order? In my answer I will not separate these issues out, but instead I will attempt to answer the question with these issues in mind.

According to Hendrik Jan van Eikema Hommes “if a multiplicity of legal rules displays a juridical unity, we can speak of a legal order or a legal system.” The European Union represents a supranational legal order within the specific fields delegated to the institutions and the competence of the community. This supranational federation is a new political entity which works above the individual national governments which make up its membership. The European Union is considered unique in this respect due to the level of integration which raises the Union from being merely an international agreement to being a supranational entity. Martin Steinfield describes the EU is a “federal order of sovereign states that has to grapple with legal political and economic relations in the wider world”. He also argues that “mixity” is at the heart of the European Union since the union must balance the integrity of its own new legal order against the sovereignty of member states. “Mixity” however doesn’t explain how conflict is resolved within the EU between higher policies and member states. “Mixity” doesn’t explain how the EU has attained harmony and uniformity.

Supremacy, in legal and political terms, refers to the hierarchy of authority or the superseding power that one entity might exert over another. This hierarchy is important for deciding which of two or more conflicting rules should be obeyed. Richard White commenting on Hans Kelsen’s views on the separation of powers says that when “a constitution divides or distributes law-creation and application between different institutions, a hierarchy is inevitably thereby instituted (to ensure finality and certainty in that process)”. While the member states of the European Union (EU) have steadfastly refrained and shied away from a formal constitution, it is arguable that through the ratification of treaties as a higher source of law, they have in effect created a constitution anyway. Chris Thornhill suggests that “although its attempts at formal constitution writing have to date remained inconclusive, the EU is marked by a historically specific and even sui generis constitutional order”. In studying the European Union, supremacy refers to the relationship between EU law and its institutions and the national laws and institutions of member states. Supremacy, in this context, is concerned with how conflict is resolved since this is how consistency and uniformity within the union can be achieved. The foundations of the European Union as we know it today are rooted in the Schuman declaration of 1950 and the European Coal and Steel Community born from this proposal. In the beginning, this community was an international organisation of six nations co-operating to "make war not only unthinkable but materially impossible." Matej Avbelj comments that this “integration was clearly not yet a union” as the founding states retained their sovereignty in its entirety. The progress of this community from an international organisation into the Union we know today, although revolutionary, was achieved through a slow evolution and sustained growth and expansion to both deepen and widen the powers. However the landmark cases of Van Gend en Loos and Costa v ENEL are commonly attributed to be the birth of the concept of the supremacy of the community. Matej Avbelj points to the European Court of Justice as the “chief initiator”. The ECJ then is an important tool for the protection of the European Union and its higher status. There exists, although silently, an acceptance that “the European Court of Justice, [may act] de facto as a Constitutional Court in comity with national courts”

In Van Gend en Loos the judgement refers to the community as “a new legal order in international law, for whose benefits the states have limited their sovereign rights”. In Costa v ENEL the judgement goes further to say that the EC Treaty has created “its own legal system which… became an integral part of the legal systems of the member states and which their courts are bound to apply”. The judgement also says that the member states have both limited and transferred certain powers of their sovereignty to the community. It is clear that these cases, along with subsequent European Court of Justice judgements, highlight a considerable transformation in the nature of a European community that had perhaps not been previously expected. It is easy to see in hindsight that the doctrine of supremacy of the European Union is a key factor in shaping what is now the European Union and various analysts congratulate “the role of the European Union as a model for supranational endeavour”. However it is likely, despite Shuman’s declaration of supranationalism, that a new European order was an unforeseen consequence, hence the difficulty of national courts in Britain, Germany, Italy and others, in addressing the issue of national and supranational sovereignty. “Over 40 years after Van Gend & Loos the doctrine about invoking norms of EU law is still not fully settled. In particular there is still a lively debate on the exact scope of the key concepts of primacy and direct effect.”

Despite the obvious importance of the doctrine of supremacy, it was not mentioned within any of the treaties. The concept was developed by the European Court of Justice as a logical consequence of the member states agreements to take appropriate measures to ensure fulfilment of their obligations, but “like several other provisions in EU law, Article 10 EC is but a special expression of good faith”. The Treaty of Lisbon does at least mention the primacy of treaty law over the laws of member states however it notes that this is well settled case law and not a treaty invention or design. There is another string to the primacy bow however. Although international law is intergovernmental in nature, “this alone has never been a reason to deny that those instruments may have important consequences in the legal order of the Member States… consequences which can be brought about by individuals relying on these norms.” This is known as direct effect. Direct effect is essentially the rule of law in the European Union. The basic premise of the rule of law is that governing bodies are also bound by the laws therefore, as well as creating rights and obligations for the national governments of member states, rights and obligations are created for the citizens of those states. The landmark case of Van Gend en Loos saw the Court of Justice confirm that individuals did inherit enforceable rights and gives guidelines on how direct effect should apply to individual citizens from Treaty Articles, Regulations and Decisions. Directives are different because they rely on the separate member states to apply them. It was through the growth of these rights, and the use of direct effect, that the supremacy of EU law was established.

In the UK, membership of the EC was ratified in the European Communities Act 1972. Section 2 of this act also incorporated all existing EU law in the UK. This created a problem for British judges however since, although this new act would automatically repeal and over-rule previous existing law in the UK, the UK Parliament is supreme and so later enactments should also repeal and usurp any contradictory statements of the 1972 Europe Communities Act. At the very least, a new method of statutory interpretation would be required in order to construe a compatibility with EU law. However Lord Denning noted in a number of cases from the late 1970s and early 1980s what a growing problem this was since “the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back.” In a later case, Lord Denning said that “if the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provisions in it… then I should have thought that it would be the duty of our courts to follow the statute of our Parliament”. This statement would have the effect of double-edged sword, acting both as a platitude to the UK judiciary who were uncomfortable with the huge constitutional change taking place but also to recognise the importance of EU law that it could not be reversed accidentally or as an oversight by parliament but rather only with a deliberate intention of repudiating the Treaty. The attitude of the UK Judiciary however has been modified by more forward thinking judges with a less entrenched view of UK Parliamentary supremacy. In 1990, Hoffman J accepts that “Entry in to the EC meant that Parliament surrendered its sovereign right to legislate contrary to the provisions of the Treaty””.

It’s clear then that the supremacy of the EU, as maintained by the European Court of Justice, has been essential for what Richard White describes as “finality and certainty”. The uniformity of the law, the rule of law and the enforceability, or acceptance, of the law has allowed the EU to grow into its status as a supranational body. However the enforceability of this law is not limitless. Lord Bridge was sure to note that any surrender of sovereignty under the act of 1972 was of course merely “voluntary”. The nature of each of the sovereign states of the EU is that, although the EU exerts a supranational power, the agreements are essentially international treaties and are reversible. The UK, for example, could extricate itself from the EU any time it wished through an act of its own supreme parliament. Gerhard van der Shcyff argues that “It might even be argued that the only real sovereignty that still accrues to Member States is the power to cancel their EU membership” according to article 50(1) of the TEU. The fact that it does not do this is not due to the supremacy of EU law or the European Union Legal Order, but more to do with the success of the European Union. Hoffman J, in 1990, stated that the “partial surrender of sovereignty was more than compensated for by the advantages of membership”. So together this relative success and the supremacy of EU law over member state national law has helped to forge and create the supranational body of the EU today.

[ 1 ]. Hendrik Jan van Eikema Hommes, ‘Legal order and Legal Principles’
[ 2 ]. Martin Steinfield, ‘Publication Review: Mixed Agreements Revisited: The EU and its Member States in the World’ Edited by Christophe Hillion and Panos Koutrakos CLJ 228
[ 3 ]. IBID
[ 4 ]. Richard White, ‘Separation of powers and legislative supremacy’ 2011 LQR 456, 465
[ 5 ]. Chris Thornhill, ‘The formation of a European Constitution; an approach form historical-poitical sociology’ 2012 Int JLC 354, 355
[ 6 ]. ECSC Treaty of Paris 1951
[ 7 ]. Schuman, Robert. Pour l'Europe. Paris 1963
[ 8 ]. Matej Avbelj, ‘Theory of European Union’ 2011 EL Rev 818, 824
[ 9 ]. Tony Storey and Chris Turner, Unlocking EU Law (3rd Edn, Hodder Education 2011) 10
[ 10 ]. Case 26/62 Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1
[ 11 ]. Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elattrica [1964] ECR 585
[ 12 ]. Matej Avbelj, ‘Theory of European Union’ 2011 EL Rev 818, 825
[ 13 ]. Chris Thornhill, ‘The formation of a European Constitution; an approach form historical-poitical sociology’ 2012 Int JLC 354, 355
[ 14 ]. Case 26/62 Expeditie Onderneming van Gend en Loos v Netherlands Inland Revenue Administration [1963] ECR 1
[ 15 ]. Case 6/64 Flaminio Costa v Ente Nazionale per l’Energia Elattrica [1964] ECR 585
[ 16 ]. R.C. Van Caenegem, ‘Constitutional history: chance or grand design?’ 2009 ECL Review 447, 463
[ 17 ]. Koen Lenaerts and Tim Corthaut, ‘ Of birds in hedges: the role of primacy in invoking norms of EU law’ 2006 31(3) EL Rev 287
[ 18 ]. Stephan Bitter, ‘Loyalty in the European Union. A review’ 3 German Law Journal (2002)
[ 19 ]. Treaty of Lisbon 2007 C306/01 Declaration 17
[ 20 ]. Koen Lenaerts and Tim Corthaut, ‘ Of birsds in hedges: the role of primacy in invoking norms of EU law 2006 31(3) EL Rev 287, 288
[ 21 ]. Bulmer v Bollinger [1974] 3 WLR 202
[ 22 ]. MacCarthys v Smith [1979] WLR 1189
[ 23 ]. Stoke-on-Trent City Council v B&Q Plc [1990] 3 CMLR 897
[ 24 ]. Richard White, ‘Separation of powers and legislative supremacy’ 2011 LQR 456, 465
[ 25 ]. Factortame Ltd. and Others v Secretary of State for Transport [1990] 2 A.C. 85
[ 26 ]. Gerhard van der Schyff, ‘The constitutional relationship between the European Union and its Member States: the role of national identity in article 4(2) TEU’ 2012 EL Rev 563
[ 27 ]. Stoke-on-Trent City Council v B&Q Plc [1990] 3 CMLR 897

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