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Published: Wed, 20 Feb 2019
This essay is going to critically discuss the supremacy of European Union law (EU) and the primacy of EU Law over National laws. By using relevant Treaty Articles, decided EU court cases and academic opinion, this essay is first going to briefly set out where EU Law derives from, the impact it has on the sovereignty of Member States, leading onto how the supremacy of EU Law has been entrenched through EU case law and other measures such as Direct Effect to the point that it is arguably indisputable.
Next, it will discuss enforcement measures that were implemented to cover the gap that restricted Directives having horizontal effect; it will do so by addressing specifically the impact Direct Effect had on Directives in particular horizontal effect and how this issue was overcome. To finally, critically discuss whether these measures reinforce the primacy of EU law over National Laws, will ultimately support my conclusion that EU law is supreme and does prevail over national law.
Following World War II, the desire for peace in a war-torn continent, conceived the idea of nations uniting together as one, to prevent such war against each other again and to pool together their coal and steel resources. The European Union (EU) is the voluntarily cohesion of 28-member states on matters such as trade, agriculture and finance etc, with a total population of more than 500 million (1).
The EU provides a political and economic union. Through amended treaties, which was culminated in the Lisbon Treaty 2007 has developed the internal single market. This enables the free movement of goods, people and capital equally through each member state.
The EU has various institutions such as, the European Parliament and the European Council etc, who collectively or independently create and pass EU laws specifically for the member states to adhere to, ensuring the objective of the EU treaties are met. The EU has a supreme court, the European Court of Justice (ECJ), which ensures EU law is interpreted and adopted equally by each member state. The ECJ also makes sure that EU policies are correctly implemented and they can provide penalties on those who infringe or fail to fulfil an obligation (2).
EU law derives from two main sources; the first being primary legislation, which are the EU Treaties: The Treaty on the Functioning of the European Union (TFEU) and the Treaty of European Union (TEU), they set the foundation of EU law. Treaties are ratified agreements between member states, which set out rules for EU institutions, how decisions are made and the relationship between the EU and its member state (3), which are binding in its entirety and directly applicable, meaning once signed and passed it automatically has legal effect on all members states, without the need of any national measures to implement it (4).
Academics such as Lorna Griffiths, argues that the national sovereignty of member states have been fragmented by EU membership and the treaties, provoking the question whether this was a deliberate act to reduce the sovereign powers of the member state and replace it with an increased supremacy of EU Laws, which is now arguably indisputable (5).
In contrast academic András Jakab’s suggests that ‘…sovereignty itself is untouched’ and ‘forbidding the use of it preserves their sovereignty’, but ultimately as long as member states wish to keep ‘playing the game called EU’ they need to accept restraints on their external freedom of action, in return for the benefits…’ (6), suggesting that EU laws merely limits but is not supreme.
The problem with Jakab’s approach is that it is arguably contradictory, as EU membership still requires compliance with EU law by silencing member states national laws, especially through direct applicability, denoting that it is in fact supreme in comparison to Jakab’s lightened view of it simply ‘taming sovereignty through compromise strategies’ (7).
Nevertheless, the EU treaties give superiority to EU laws and perhaps this varying opinion of not just academics but also member states, highlighted the need of further clarification. Michael Dougan, supported this notion in his writing, as he questioned who exactly benefitted from the Treaties, as this symbiotic and confusing relationship between the EU and member states, is in his words ‘surprisingly murky’ (8).
The revolutionary case of NV Algemene Transport-Expedite Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen (9), addressed this matter, but also the issue of supremacy. In regard to Article 12 EEC (now Article 30 TFEU), The ECJ held ‘the objective of the EEC treaty… implies that this treaty is more than an agreement which merely creates obligations on individuals but is also intended to confer upon them rights’ (10), giving the article direct effect. This permits the rights of individuals and organisations to be enforceable in national courts, as a way of creating uniformity amongst member states to maximise the efficiency and application of EU law, despite the fact that the treaty articles generally regulated trade between member states (11). Treaty provisions will have direct effect if they satisfy the Van Gend en Loos criteria of being sufficiently clear, concise and unconditional, but also must not require implementation (12). An individual can also enforce these rights in their national courts both vertically (against the state) or horizontally (against a private party) which was later confirmed in Defrenne v SA Belge de Navigation Aerienne (SABENA) (43/75)  1 All E.R. 122) (13).
Academic Joseph Weiler, agrees that indeed Van Gend en Loos had a revolutionary impact but argues that Direct Effect construes mutual obligations among member states as rights owed by states to individuals. This basically ensures the rule of law (the legal principle that governs the relationship between individuals and the state, primarily upholding individual rights and freedoms) is upheld at a transnational level and not an innovative measure that assisted in the supremacy of EU law becoming entrenched, quite simply put, how can you ingrain something that has already been rooted (14).
Other writers such as Penny Kent, take the opposite stance, that the by-product in the Van Gend en Loos ruling on Direct Effect created a systematic genesis to the iconic doctrine of supremacy (15). The ECJ held ‘The European Economic Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals’ (16). The EU ultimately gained significant control over national laws by limiting the sovereignty of the member states by asserting the supremacy of EU Law. At that time Member states where not adhering to their obligations in the treaties and the treaty itself did not provide remedies or sanctions for failure to meet the obligations (17).
Many academics argue that in the Van Gend en Loos judgment, the ECJ overstepped its jurisdiction and writers such as Christie Eaton note that despite the importance, the concept of direct effect & supremacy was not conferred in a treaty but developed by the ECJ (18). This created a varying level of resistance from different member states, who see this as judicial activism and not supremacy and equally their sovereignty is only limited to certain fields and therefore not absolute supremacy.
However, Joseph Weiler suggests the term “a new legal order of international law” already had been established by the member states when they ratified the EU treaties, due to the treaties special legal and institutional nature. The ECJ merely made the courageous choice of reminding the member states of their obligations (19) and therefore supremacy of EU law had already been entrenched through the treaties and other measures.
The second main source of EU law comes from Secondary legislation, which is the main body of law that details treaty principles and objectives, in the form of: Regulations, Directives and Decisions. Article 288 TFEU, permitted the same ability of direct applicability to Regulations and direct effect would apply if the criteria of the Van Gend en Loos criteria was satisfied, enabling it to be relied upon both vertically and horizontally. However, this was not the same for Directives or Decisions, as they would require the adoption of national measures, to enable them to become effective and give the member state the choice of how to achieve the Directive objective within a specified time limit. This in itself created an inconsistent implementation of EU laws across the member states and challenged the very essence of supremacy, by member states failing to comply with its obligations, exceeding the time limit, misinterpreting the directive or not implementing it at all (20).
This highlighted limitations on direct effect and the ECJ through various case law addressed this. The two main ones are, Directives could have direct effect if the criteria of Van Gend en Loos were met, this was established in Van Duyn v Home Office (21)and second the specified implementation date of the Directive must have expired; Pubblico Ministero v Ratti (22).However, in the case of Marshall v Southampton and South West Hampshire AHA (23), the ECJ ruled that Directives could not be enforced horizontally and after much argument that this resulted in injustices. The ECJ developed further measures that would ensure EU law could be enforceable.
Indirect effect was subsequently established in Von Colson & Kamann v Land Nordrhein-Westfalen (24) regarding the Equal Treatment Directive (25) and the ECJ ruled ‘national courts are required to interpret their national law in the light of the wording and purpose of the Directive in order to achieve the result (envisaged by the Directive)’. Author Margot Horspool, noted that indirect effect was an attempt by the ECJ to circumvent the difficulties as to direct effect, by pursuing another line of reasoning (26).
This was echoed by Martin Howe QC who detailed that the ECJ could expand the scope of its own powers and the scope of EU law by creative and politically driven interpretation of the treaties (27). This was evidenced in indirect effect permitting horizontal enforcementin Harz v Deutsche Tradax (28). Limitations however where attached to indirect effect, such as Member states where to Interpret their national laws as far as possible to ensure they were consistent with EU laws, which was established in Marleasing SA v La Comercial Internacional de Alimentacion (29)and if this was not possible to achieve then national law would take precedence; Wagner Miret v Fondo De Garantia Salarial (30).
The ECJ also held that were there is no national laws in place to interpret, indirect effect becomes ineffective; Francovich v Italy (31).
Academic Sophie Robin-Oliver expressed that the limitations make indirect effect seem quite remote from the ideas of: direct applicability, direct effect and the full effectiveness of EU law. This measure is made dependent on the specificity of national substantive laws and methods of interpretation. This highlights a flaw in the doctrine of supremacy, as the effect of EU law in national courts can differ depending on the substance of each member states national law and the techniques of interpretation available to national courts, supporting the notion that limits on member states sovereignty are only within limited fields (32).
However, Costa v Enel (33) echoed the principles in Van Gend en Loos and strengthened the concept of supremacy of EU law. ‘The transfer by the states from their domestic legal system to the Community legal system of rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’ (34). This ultimately laid down the doctrine primacy of EU law over National laws, meaning where there is a conflict; EU laws take precedence over national laws. Each member state by condition of their membership to the EU, limits their sovereignty by permanently giving priority of EU law over their own domestic laws.
With the ECJ’s role explicitly stated in Article 220 TEU, “The Court of Justice shall ensure that in the interpretation and application of this Treaty the law is observed” (35). This concept of supremacy was not conferred in a treaty but developed by the ECJ. In fact it is now stated in a Declaration attached to the Treaty of Lisbon (36) and has received diverse attitudes from member states to the place of European law in their legal order (37).
The doctrine was extended further to include conflicts with national constitutional law; Internationale Handelsgesellschaft v. Einfuhr (38) and even further to include current and future legislation; Simmenthal (39). The full extent of the ECJ powers under the doctrine was evidenced in Factortame No 2 (40); a breach of a EC treaty based on discrimination Lord Bridge stated “…the full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court… granting interim relief in order to ensure the full effectiveness of…Community law” (41).
To conclude, this essay has critically discussed the supremacy of EU law and the primacy of EU Law over National laws. It has highlighted that direct effect of EU law is now firmly established through case law such as Van Gend en Loos etc, which allows the consistent implementation of EU law provisions across all member states. Although indirect effect covers gaps presented by the doctrine of direct effect, it too has limitations. However, these measures together with the doctrine of supremacy, ensure not only that EU law can be enforced in national courts by individuals, but the sovereignty of member states have been limited, making the supremacy of EU law indisputable.
The ECJ has extended the reach and scope of its own jurisdiction but ultimately the provisions of EU law reinforce the primacy of European law over national laws.
- Ibid 2
- Ozlem Ulgen, Sources of EU law – Birmingham City University 15/05/2015
- Millie Polimac, Direct Applicability 11/3/2015
- A Critical Analysis of EU Member State Sovereignty under the Treaty of Lisbon. Sovereignty v Democracy – Lorna Griffiths
- Jakab, A. (2006). Neutralizing the Sovereignty Question Compromise Strategies in Constitutional Argumentations before European Integration and since. European Constitutional Law Review, 2(3), 375-397. doi:10.1017/S1574019606003750
- Ibid 6
- Dougan, M. (2010). Who Exactly Benefits from the Treaties? The Murky Interaction Between Union and National Competence over the Capacity to Enforce EU Law. Cambridge Yearbook of European Legal Studies, 12, 73-120. doi:10.5235/152888712802636210
- (26/62)  E.C.R. 1
- Ibid 9
- Christie Eaton – Direct Effect University of Derby – 29/06/2015
- Ibid 3
- Defrenne v SA Belge de Navigation Aerienne (SABENA) (43/75)  1 All E.R. 122)
- J. H. H Weiler, The Author 2014. Oxford University Press and New York University School of Law. I•CON (2014), Vol. 12 No. 1
- Penelope Kent, Pearson Education, 2001, online version
- European parliament at your service – http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_1.3.10.html
- Ibid 11
- Speech by Joseph Weiler made at the ECJ’s 50 years’ celebration of Van Gend, 12 May 2013, http://player.companywebcast.com/televicdevelopment/20130513_1/en/player
- Ibid 11
- Van Duyn v Home Office (41/74)  Ch. 358
- Pubblico Ministero v Ratti (148/78)  E.C.R. 1629.
- Marshall v Southampton and South West Hampshire AHA (152/84)  Q.B. 401
- Von Colson & Kamann v Land Nordrhein-Westfalen Case 14/83  ECR 1891
- Equal Treatment Directive
- Margot Horspool, Matthew Humphreys & Michael Wells-Greco, European Union Law, 9tyh Editions, Oxford University Press2016
- http://www.lawyersforbritain.org/eulaw-ecj-primacy.shtml Martin Howe QC, EU Law – the ECJ and primacy over national laws
- Harz V Deutsche Tradax (Judgment): ECJ 10 Apr 1984
- Marleasing Sa V La Comercial Internacional De Alimentacion Sa: ECJ 13 Nov 1990
- Wagner Miret V Fondo De Garantia Salarial (Rec 1993,P I-6911) (Sv93-477) (Judgment): Ecj 16 Dec 1993
- Francovich v Italy (1990) C-6/90
- Sophie Robin-Olivier; The evolution of direct effect in the EU: Stocktaking, problems, projections, International Journal of Constitutional Law, Volume 12, Issue 1, 1 January 2014, Pages 165–188, https://doi.org/10.1093/icon/mou007
- (Costa v Ente Nazionale per l’Energia Elettrica (ENEL) (6/64)  E.C.R. 585
- Ibid 33
- Article 220 TEU
- Declaration Treaty of Lisbon
- Ibid 26
- Handelsgesellschaft v. Einfuhr 
- Simmenthal SPA 
- REGINA V SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME (NO 2): HL 11 OCT 1990
- Ibid 40
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