The Lisbon Treaty is silent about the principle of the supremacy of the European Union law over national law. However, Declaration number 17 was attached to the aforementioned Treaty to this effect. There can be seen a very unambiguous perspective on the issue of supremacy of European Union law over disagreeing national law: ‘under the principle of supremacy, precedence must always be given to Community law over conflicting national law however framed and including national constitutional provisions’.
As it is firmly known, the discussed principle of supremacy was established as well as developed in almost historical case of Costa v. Enel. In that case the collision between the law of the European Community and the Italian national law had been analysed. The conclusion of the European Court of Justice (hereinafter referred to as ‘ECJ’) was based upon the limitation of sovereignty of each Member State and also on the transfer of powers from the States to the Community. The ECJ’s core justifications for the discussed principle are ‘independence, uniformity and efficacy’ of Community law. From this point of view, European Union law is ‘an integral part of … the legal order applicable in the territory of each of the Member States’.
The ECJ has developed arguments that would validate the conclusion about the Community law being accorded supremacy over national law. Undoubtedly, integration and co-operation were the crucial aims of the Treaty. They might be destabilised by one Member State which refuses to give effect to the Union law that should equally bind all. Therefore, in Costa the Court did seek to establish a universal principle of the supremacy of all binding Union law.
The aforementioned case stands for the conceptual basis of the supremacy of the EU law since the strength and, evidently, scope of it were developed in later decisions. The subsequent case provides that the legal status of an inconsistent national measure were not the issue whether Community law should prevail. This particular decision of the Court gave rise to the serious conflict between the German Constitutional Court and the Court of Justice. Even thought the ECJ has wanted to avoid any direct constitutional conflict with a national court, Germany has never withdrawn its claims. In German cases of the Solange I and Solange II the German Constitutional Court showed concerns for the protection of fundamental rights. Also, the Kompetenz-Kompetenz doctrine has been introduced by the same court first in Kloppenburg and then in Maastricht decision. Eventually, the Bundesverfassungsgericht, stepped back by deciding to put ‘in stand by’ its power to review secondary community legislation. The ground for its decision can be found in protection of fundamental rights as the level of protection in the European Union was found to be satisfactory.
In the case of Ciola, the government of Austria did disagree with the supremacy being automatically applied to ‘specific individual administrative acts’, since it may undermine the doctrines of both legal certainty and legitimate expectations. The Court by dismissing the Austrian government did confirm that the principle of primacy is equally asserted and also required by the ECJ whenever directly effective EU law is concerned. Italian Constitutional Court in case of Frontini said that ‘priority is accorded to EU norms only in so far as they do not conflict with fundamental principles of the national Constitution’. However, the ECJ announced that even a fundamental rule of national constitutional law could not be invoked to challenge the supremacy of a directly applicable Community rule.
The doctrine of supremacy has been further developed in the case of Simmenthal providing the applicability of the EU law regardless of the national law pre-dating or post-dating the Community law. The unambiguous message from the ECJ concerned the matter that even in the situation where the Constitutional Court was the only national court that has been given the power to pronounce on the issue of continuality of a national law, the beforementioned court must give the immediate effect to the EU law. It must happen even without awaiting the ruling of the constitutional court. The supremacy concept was and is of great importance since it did penetrate national legal systems in order to be applied by all national court. The Simmenthal standard was applied and extended in the Factortame case which would be discussed in the further chapter. Besides, in the case of Larsy the ECJ stated that also the relevant agencies of administration are in duty to disapply national laws being in conflict with Union law as to give effect to the primacy of EU law.
It is essential to notice that the Simmenthal principle does not oblige the national courts to annul the provision being in conflict with the EU law but to refuse to apply it. It includes the reflection of mentioned above legal certainty which leads to the conclusion that the inapplicability of the national law will not expose those who relied on it to penalties.
The case of Kapferer is significant as to understand that a national court would not be always required to review a final judicial decision that evidently violates Union law. There the importance of res judicata has been recognised by the ECJ as to the definitive decision that can no longer be questioned. Worth bearing in mind, is that the appropriate national rules of procedure must conform the principles of equivalence and effectiveness. From this perspective the relationship between Community and national law is encapsulated in the concept of ‘unconditional supremacy’.
The vision of the ECJ of supremacy of the European Union law over every norm and provision of the municipal law and its constitution, has raised the discussion regarding the ECJ having overstepped its competencies. One may notice that the role of the European Court of Justice lies upon interpreting European law not questioning how the Member States handle conflict between national law and Union law.
The supremacy of Community law and the requirement that national courts must ensure its practical effectiveness is hence established beyond question in a consistent line of case law. There are certain provisions of the EU Treaty which some may view as a partial strength of the supremacy principle, such as Article 307, which relieves Member States of the obligation to ensure the primacy of EU law in certain circumstances, or Article 297, which appears to carve out an area within which the Member States retain a degree of sovereignty. Nonetheless, these are provisions of limited scope, and the basic principle of supremacy articulated by the ECJ is a broad and general one. On the other hand, this constitutes only part of the supremacy story. Ultimately, the acceptance and practical application of the primacy of EU law are dependent on the adaptation and acquiescence of the legal and constitutional orders of the Member States.
Should one acknowledge that supremacy is inherent in the nature of community law and derives as an implication by the Founding Treaties, then it is quite logical to claim that it carries the legitimacy of the Treaties and given by the Treaties. Furthermore, the substance of written law can never be considered as exhaustive or all – conclusive. There are always gaps to be filled through jurisprudential interpretation and new important principles might be formulated. This way of formulating them does not reduce their legitimating force.
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