Introduction to European Union law
Introduction to European Union law

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Introduction to European Union law

10 Supremacy of EU law

The Treaties do not expressly provide for the notion that EU law has supremacy over all conflicting domestic law in member states. This genesis of this notion derives from the jurisprudence of the CJEU.

Activity 12 What does supremacy mean?

Timing: You should allow yourself 40 minutes to do this activity.

The purpose of this activity is to introduce you to the concept of supremacy of EU law using primary sources (seminal case law) rather than academic explanation. When undertaking this activity you should recall your knowledge of parliamentary sovereignty, the rule of law and judicial review .

First, listen to this audio, which contains an explanation of supremacy and sovereignty by Sir Francis Jacob, former Advocate General.

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Transcript: Sir Francis Jacob on supremacy and sovereignty

Interviewer:
It was a hint, a signal of what may be about to come. I am keen to do even more, David Cameron told MP’s, to put it beyond doubt that the House of Commons, is sovereign. Ministers are working on a new law which it said will assert that it is the British Parliament, Britain's Supreme Court, that are the ultimate arbiter of British law, not therefore European law and in particular the European Court of Justice in Luxembourg. Could that idea work?
I’m joined here in the studio by Sir Francis Jacobs, a former Advocate General at that European court in Luxembourg. Morning to you, Sir Francis.
Sir Francis Jacobs:
Good morning.
Interviewer:
Let us begin at the beginning. Is European law, as a result of our decision to join the European Community back in 1972, is it always sovereign and must it always be sovereign if this is to work as a club, as an institution?
Sir Francis Jacobs:
I think the answer’s clearly 'yes'. If the European Union is to work at all then European Union Law has to prevail over the law of the member states. If there were 28 member states each taking a different view of what European Union Law should mean then it would be impossible for the European Union to function. So it does require that Union law should be recognised as prevailing over national law.
Interviewer:
So your simple answer to people who say, 'I don’t like that situation, I want British law, I want British democracy to be sovereign.' is 'That’s your choice but you have to vote to leave for that to be the case.'
Sir Francis Jacobs:
I think that is right, yes. I think there is simply no alternative to the view that European Union Law must prevail over national law.
Interviewer:
'And yet', say the critics, 'look Germany has what’s called a Constitutional Court. It makes rulings that occasionally challenge what is said by the EU’s court, the European Court of Justice in Luxembourg. So why couldn’t we in Britain pass a law turning our Supreme Court in to just the same sort of body, able, if you like, to have a dialogue about these issues with the Court of Justice?'
Sir Francis Jacobs:
Well I think it first has to be remembered the German Constitutional Court sometimes raises doubts about European Union Law and that can be very helpful. The Constitutional Court may say to the European Court of Justice, because there is a dialogue between the national courts and the Court of Justice, the Constitutional Court may say this particular provision does give rise to difficulties because, for example, it may infringe fundamental rights that we recognise and the Court of Justice may then take account of that.
Interviewer:
So a body raising doubts you’re happy with so would you be comfortable with the idea and would it work? Proposed originally I think by Boris Johnson but David Cameron is clearly keen. 'Let’s amend' says Boris 'the Communities Act – the European Communities Act – to accept that, yes, EU law has primacy but if and only if parliament has not expressly decided otherwise.'
Sir Francis Jacobs:
Well I think that is difficult. We must distinguish the court and the parliament. As far as the United Kingdom courts are concerned they can already express doubts and they do, about the interpretation of European Union Law, interpretations given by the Court of Justice, and they can ask the Court of Justice to reconsider. So they are already in that situation.
Interviewer:
But there may be people listening to this shouting at the radio, your successor, and they may not know that that’s who it is but has just ruled, the European Court of Justice, that foreign criminals cannot be automatically deported as to do so would breach their children’s rights to live as EU citizens. The simple question many people ask is, 'Who is it for you to decide who can live in the United Kingdom? What on earth gives you, in your old job, the right to make such a judgment?'
Sir Francis Jacobs:
I think the answer to that is that European Union Law must respect fundamental rights and indeed that is one of the concerns which the government itself has raised. The government says that from time to time European Union Law may override fundamental rights.
Interviewer:
A final brief one if I may, as you sat there in Luxembourg as a Brit operating out of that court, did you ever think 'Why me? Who on earth holds me to account?'
Sir Francis Jacobs:
I think that is of course a very difficult question and ultimately it is a question of one’s conscience but one has to try to reach the right decision. What I can say is that the Court of Justice consists of experienced judges and advocates general from the member states who are doing their very best to maintain the requirements of the European legal order.
Interviewer:
Sir Francis Jacobs, thanks for joining us.
Sir Francis Jacobs:
Not at all.
End transcript: Sir Francis Jacob on supremacy and sovereignty
Sir Francis Jacob on supremacy and sovereignty
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Find the following three cases. You can use the Curia case search [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] for this. Law students work a lot with case-law and studies of EU law are no exception. The Curia website is a direct source of EU case law. For each case read the case facts and issues before the court and then complete the empty columns of the grid below. Note down the brief facts of the case and answer two questions: What was the conflict between in each case? Which law do you think had supremacy and why?

  1. Van Gend en Loos v Nederlandse Administratie der Belastingen Case 26/62 [1963] ECR 1
  2. Costa v ENEL (Case C-6/64) [1964] ECR 585
  3. Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case C-11/70) [1970] ECR 01175
  4. R v Secretary of State for Transport ex parte Factortame Ltd and others (Case C-213/89) [1990] ECR I-02433
Case nameBrief factsWhat was the conflict between in each case?Which law do you think had supremacy and why?
1. Van Gend en Loos v Nederlandse Administratie der Belastingen (Case C-26/62) [1963] ECR 1
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2. Costa v ENEL (Case C-6/64) [1964] ECR 585
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3. Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case C-11/70) [1970] ECR 01175
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4. R v Secretary of State for Transport ex parte Factortame Ltd and others (Case C-213/89) [1990] ECR I-02433
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Comment

Case nameBrief factsWhat was the conflict between in each case?Which law do you think had supremacy and why?
1. Van Gend en Loos v Nederlandse Administratie der Belastingen (Case C-26/62) [1963] ECR 1 

A Dutch company imported goods from Germany into the Netherlands. Under a pre-existing Dutch law, the Dutch Customs Authorities (DCA) imposed an import duty, which the company had to pay. Such import duties were prohibited by the Treaty of Rome (now Article 30 TFEU). The company claimed a repayment of the duty from the DCA.

EU law and an earlier national law.

(A Dutch law requiring imposition of an import duty and a provision of the Treaty of Rome (now Article 30 TFEU) outlawing them – with the Dutch law coming into force before the EU Treaty.)

EU law (the EU Treaty provision).

The ECJ held that the EU had created a new legal order in international law, for whose benefit the member states limited their sovereign rights, albeit in limited fields.

2. Costa v ENEL (Case C- 6/64) [1964] ECR 585

Mr Costa was sued for non-payment of an electricity bill, which he had refused to pay because he owned shares in an electricity company that was nationalised by the Italian state. The question arose whether the Italian Constitutional Court’s judgment that an Italian law passed after the EU Treatyof Rome came into force took precedence was correct.

EU law and a later national law. 

(An Italian law and a provision of an EU Treaty with the Italian law coming into force after the EU Treaty of Rome.)

EU law (the EU Treaty provision). 

The fact that the Italian law had been passed after the Treaty came into force was irrelevant because in signing up to the Treaty there had been a transfer of power from the member states to the EU and a member state could not then pass a law that subsequently breached the agreement made between member states under that Treaty.

3. Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (Case C-11/70) [1970] ECR 01175

A German company challenged a system established under EU Regulations whereby deposits had to be paid before import and export licences for cereals were granted as being against the German Constitution. A German Civil Court held that in such a case national law would take precedence over EU law.

EU law and a member state’s constitution.

(EU Regulations establishing an export licence procedure and provisions in the German Constitution protecting freedom of action and economic liberty.)

EU law (the EU Regulations).

The ECJ held that EU law always took precedence over conflicting provisions of member states’ constitutions; otherwise, it would have an adverse effect on the uniformity and efficacy of EU law and would bring into question the legal basis of the EU.

4. R v Secretary of State for Transport ex parte Factortame Ltd and others (Case C-213/89) [1990] ECR I-02433

The UK Government passed an Act of Parliament, the Merchant Shipping Act 1988, to prevent Spanish fishermen setting up British companies to use the British fishing quota. The Spanish fishermen sought judicial review of the Act and an injunction to suspend the Act until the case was concluded on the basis that this national law breached EU law. The suspension of an Act of Parliament was not allowed under English law.

The issue was over, where a UK Act of Parliament was contrary to EU legislation, which took priority.

The ECJ held that even though the case had not yet been determined and no judgment given and even though the Act could not be suspended under English law, the supremacy of EU law was such that the English court had to suspend the Act as it was potentially in breach of EU law.

EU law was held supreme.

National courts must suspend the operation of national legislation that may be incompatible with directly effective EU law pending a final determination of its compatibility.

The conclusion you should have drawn from this activity is that in a conflict between EU law and national law, whenever that national law was passed and whether it be constitutional law or otherwise, EU law will take precedence. As highlighted by Internationale Handelsgesellschaft, the CJEU developed this principle to ensure that EU law is applied evenly across the different member states. If one or more of the member states was able to choose when to apply EU law, or which EU laws to apply, then that would prevent the achievement of the aims of the EU – such as the internal market – which requires uniformity of rules across the EU.

It took a number of years for the English courts to accept the full consequences of the supremacy of EU law over English law but now the principle is firmly established.

Van Gen den Loos was a seminal case in relation to the CJEU’s perception of its constitutional role. That stance enabled the court to propound the principle that the EU was a new legal order. It noted the acquis communautaire and that EU Treaties were directly applicable in all member states, whether or not they were monist or dualist, provided the provision met certain conditions: namely, they were clear, precise and unconditional. In later cases the CJEU enlarged the scope of the concepts by extending them into secondary legislation.

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