10.1 Issues on supremacy of EU law
The principle of supremacy of EU law has raised some interesting questions for national courts.
Factortame (No 2) demonstrates just how important the principle of supremacy of EU law is in practice, in that it resulted in the English courts providing a remedy that did not previously exist under English and Welsh law. Suspending an Act of Parliament by injunction had never been done before, not least because of the doctrine of parliamentary sovereignty. The ECJ held that it was necessary to safeguard directly effective EU law and ensure that it was applied uniformly across the EU.
In preparation for academic discussion, the next activity looks at a seminal decision of the court, which set the benchmark for how national courts should approach the issue.
Activity 13 Supremacy and the national courts
This was a reference from a case in which a lower court in Italy decided that a national law conflicted with EU law.
Read the facts (paragraph 2 to first issue) but not the Decision. Decide whether you think the statement that follows is true or false and make a note of the reasons for your conclusion.
- The ECJ held that the lower court had to wait until the Italian Constitutional Court (the highest court in Italy) had declared the national law incompatible with EU law. The lower court could not refuse to apply the national law on its own.
The correct answer is b.
The ECJ held that it was not necessary for a lower court to await the setting aside of the contradictory law by legislative or other means, so the correct answer is false. To do otherwise would undermine the effectiveness of EU law.
Activity 14 The role of the court
Read ‘(H) Role of the court’ (Craig and de Búrca, 2015, pp. 62–6). As a focus to your reading, consider the following questions (there is no comment for this activity - the questions are intended as points to look for in this reading):
- Does the court have regard to precedent from its previous cases, or does it see itself as a constitutional court reacting to changing conditions within the EU?
- How far has the court chosen to clarify or obscure its approach to its own previous Decisions?
- To what extent has the CJEU guaranteed a legal base to EU action?