Supremacy
(or Primacy) of European Union Law
The principal of primacy means that when any
European Union rule applies in a given situation, the conflicting national norm
should be set aside. This is called a duty to disapply national law.
According to the Court in Simmenthal, “a
national court which is called upon, within the limits of its jurisdiction, to
apply provisions of Community law is under a duty to give full effect to those
provisions, if necessary by refusing of its own motion to apply any conflicting
provision of national legislation, and it is not necessary for the court to request
or await the prior setting aside of each provision by legislative or other
constitutional means.”
As the operation of setting aside conflicting
national law has to be repeated by the court, and by other courts, in all
similar individual cases, the result in practical terms is close to
invalidation of the rule. It is important to note, however, that strictly the
Court does not require invalidity of the inconsistent national rule, instead
the non-application or setting aside of it.
A national rule, which is set aside for being
inconsistent with Union law, is inoperative only to the extent of this
inconsistency; the rule may continue to be applied to cases where it is not
inconsistent, or to cases not covered by the E.U. norm, and it may fully apply
again if and when the E.U. norm ceases to exist. Where there are
inconsistencies between an E.U. norm intending to harmonize national laws and a
harmonizing national law, then inconsistencies can only be removed by repealing
the national act.
Treaty
of Lisbon 2007
According
art.I-6 of the Treaty establishing a Constitution for Europe: “The Constitution
and law adopted by the institutions of the Union in exercising competences
conferred on it shall have primacy over the law of the Member States.” This
Article incorporated the principle of primacy into the Treaty text. In a
Declaration attached to the Treaty it was stated that “Article I-6 reflects
existing case law of the Court…and does not cause any additional limitations of
sovereignty.” It was held by the Constitutional Courts of France and Spain that
the new primacy clause did not bring any changes to the existing relationship
between E.U. law and national law.
The
principle of primacy was omitted from the Treaty of Lisbon 2007 and a much
longer Declaration was adopted and attached. According to Declaration no.17:
“The Conference recalls that, in accordance with well settled case law of the
Court, the Treaties and the law adopted by the Union on the basis of the
Treaties have primacy over the law of the Member States, under the conditions
laid down by the said case law.”
According
to the Declaration the entry into force of the Treaty of Lisbon did “not in any
way change” the Court’s established position as regards to primacy.
In
an Annex to the Final Act of the Treaty of Lisbon was also the Opinion of the
Council Legal Service on the Primacy of E.C. Law (set out before the Treaty):
“It results from the case law of the Court that primacy of E.C. law is a
cornerstone principle of Community law. According to the Court, this principle
is inherent to the nature of the European Community. At the time of the first
judgment of this established case law (Costa) there was no mention of primacy
in the Treaty. It is still the case today. The fact that the principle of primacy
will not be included in the future Treaty shall not in any way change the
existence of the principle and the existing case law of the Court.”
Next
week the blog series will introduce the four fundamental freedoms that have to
do with the European Union and its members and are so important for the future
relationship between the United Kingdom and the European Union after Brexit.
NOTE:
This post is based on Chapter 3 in Núñez, Jorge Emilio. 2017. Sovereignty
Conflicts and International Law and Politics: A Distributive Justice Issue.
London and New York: Routledge, Taylor and Francis Group.
Wednesday 13th February 2019
Jorge Emilio Núñez
Twitter: @London1701
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