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EU Law I: Supremacy
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SUPREMACYOften referred to as the principle of primacy, this principle obliges the national courts to
settle disputes in favour of EU law over domestic law where the two clash. It resolves the
conflict that direct effect creates.
Court of Justice View of EU Supremacy
Supremacy was first recognized in the case of Costa v Enel, which combined with the
decision of Van Gend en Loos, ensured the impact of provisions within Member States. The
issue at hand in Costa v Enel was that by signing the Treaty of Rome, the Member States
had agreed to create an internal market – this would be impossible if conflicts were not
resolved between national and Union law. It was decided in favour of Union law and the
principle of Supremacy was created.
Full implications
The full ramifications of the principle of supremacy made clear in Case 106/77
Simmenthal [1978] ECR 629. The case determined that there were two consequences of
supremacy;
1. Existing national legislation conflicting with Union law are rendered automatically
inapplicable ; and
2. Preclusion of valid adoption of new national legislative measures which would conflict
with Union law.
Paragraph [21] made it clear that this applied to any law which ‘may conflict with it [Union
law], whether prior or subsequent to the Community rule…’
The Court of Justice expects unconditional supremacy over all conflicting provisions of
national law. This can be seen through the stark contrast of Internationale
Handelsgesellschaft and Erich Ciola. The former concerned provisions of the German
constitution on human rights, whilst the latter was concerning an individual administrative
decision granting licences for lakeside moorings. These two cases show that the supremacy
of EU law applied regardless of the level of national constitutional law.
Disapplication
It is important to note that disapplying conflicting legislation does not render it null and void
or invalid in any way. As it does not imply invalidity, it is therefore not disapplied in
situations falling outside the scope of Union law (INCOGE).
Disapplication also does not relieve the Member State of its obligation formally to bring
national law into compliance with Treaty obligations (Commission v Netherlands
(Bathing Water Directive)).
The principle of supremacy may have to give way, in particular situations, to other general
principles of Union law (such as legal certainty). For example in the Asda case, lack of legal
certainty mean that the principle of supremacy could not apply.
Ultimate sovereignty?
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