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Why Have the National Courts of Some Member States Found It Difficult to Accept the European Court’s Doctrine of the Supremacy of Community Law?

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Why have the national courts of some Member States found it difficult to accept the European Court’s doctrine of the supremacy of Community law?

The idea of community law is that it is supreme. However, especially in the earlier days, some national courts of Member States found it difficult to accept this. The reasons for this varied for different Member States such as having unwritten constitutions, a lack of a good administrative system, the ideas of parliamentary sovereignty and the notion that courts did not want to go against their national constitution. It is said that the courts would take a teleological approach rather than textual approach in dealing with this matter. I think that the way the court developed the doctrine of supremacy should be looked at and then the way in which national courts of Member States have chosen to deal with this.

The case of Costa v Enel1 was the first case in which the doctrine of supremacy was developed by the European Court of Justice. In this case it was said that by accepting the idea of a community the result would be that Member States had limited their sovereign rights. Also, that each Member State had to be equal or the idea of uniformity between each State would not be successful and they should not give primacy effect to national law that conflicts with Community law. However, it is said that there is little evidence in the text of the Treaties which suggests that Community law would prevail due to its special status. It is argued that you would not be able to find an express statement within the Treaty stating that Community law is supreme.2 This could potentially make it hard for courts to go against the rules of their Member State if there is no relevant provision that states Community law has to be prevail over national law.

The reasons national courts of Member States do not apply Community law, or refuse...

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