What does Supremacy of EU law mean?
The concept of EU law supremacy is european law always prevails over our own national law in the event of a conflict between the two. Put simply:
- If English law says something that contradicts or undermines european law, normally the european law provision will prevail. The English national law usually will be unenforceable.
- The concept of EU supremacy was not in the original Treaty, but the concept was developed in caselaw.
- The Lisbon Treaty however talks about the primacy of EU law.
What about Parliamentary Sovereignty?
The idea of EU law being supreme over national law is to a large extent true, at least in the UK. This arguably goes against the doctrine of Parliamentary Sovereignty, which says that Parliament is the supreme law maker in the UK. Put simply, UK Parliament is no longer supreme, because an inconsistent EU law normally would override an Act of Parliament. The EU is therefore arguably the supreme law maker and not UK Parliament.
However it could be argued that Parliamentary Sovereignty still exists, for the following reasons:
- Parlament is consenting to the supremacy of EU law by virtue of the provisions in European Communities Act 1972; and
- Parliament could repeal the 1972 Act at any time
Parliament arguably therefore is still in control. In fact there would be no legal consequences as such from repealing the 1972 Act. The reality however is there would be political and economic consequences, which may limit Parliament repealing the Act.
Why is EU Supremacy necessary?
Without EU law being supreme:
- National law could be created whenever desired to override EU law;
- As a consequence Member States would all likely have different laws, meaning that there would be no consistency in laws;
- Citizens would find that their European Law rights may be available in some Member States but not in others; and
- Enforcement would be impossible. Member States could simply introduce or rely on a national law provision overriding EU law whenever challenged.
Put simply, without EU law being supreme over national law, the enforcement and availability of EU law would be pointless. The idea of the Union is that we are a unit, rather than individual countries. The same rights and obligations created by EU law should be enforceable and available in all Member States.
Why do some countries not like EU Supremacy?
Politically, it sounds bad to most people to say that they are giving up their law making powers to a foreign body. In the UK, for example, the press talks about us ‘giving up rights to Brussels’. Regardless of your personal views on this point, politicans in this country at least talk about giving up power as bad. They focus on the fact that Westminster has ‘lost’ their power to Brussels.
Arguably a lot of people prefer the idea of national sovereignty. This is the idea that their country determines their own destiny through their laws, rather than a foreign power doing so. Some people may argue that this is why (at least in part) why the Brexit vote went through. The idea of ‘taking back sovereign power’ inevitably would have led to some votes in favour of Brexit.
Regardless of the above, when the concept of EU supremacy was created by the (then) European Court of Justice in cases such as Van Gend en Loos, there was still reluctance in some Member States to accept EU law as supreme.
Despite the decision in Costa v ENEL, some Member States arguably tried to ignore the concept of european law supremacy. Partially this could have been, because in international law normally States usually consent to decisions, rather than have decisions imposed on them. Some Member States, possibly, may not have anticipated the scope that european union was to take.
Supremacy of EU law is not universally accepted
In recent years at least the UK seems to have accepted through caselaw that EU law is supreme over national law.
The reality is however that some member states do not consider european law as having absolute supremacy. There would not be possibly enough room to discuss all Member States, but in brief concerning some Member States:
- In the Czech Republic there is the Landtova case where the Czech Constitutional Court declared that a CJEU decision was ultra vires (i.e. outside of its powers/void). This flies in the face of EU supremacy.
- In Germany its Constitution guarantees fundamental rights. It has been argued in various decisions that the courts would uphold these rights if EU law sought to take any of these rights away.
- The situtation in France is similar to Germany.
Essentially some member states do not consider EU law to be absolutely supreme. It appears that, to some extent, some Member States feel that they have the right to override EU law. They argue that they could override EU law where the law seeks to take away fundamental rights. Essentially in those Member States european law will prevail only to the extent that fundamental rights are not eroded. This clearly goes against the concept of EU law supremacy.
Regardless of the law, the Union depends on co-operation
All Member States have agreed to give up supremacy and this is accepted to a large extent by the Member States discussed. It should be noted however that all Member States have the power to withdraw from the Union and take back their sovereign law-making power. This could be done through the official procedures or potentially (but much less likely) unilaterally.
Arguably therefore the Union has to keep Member States satisfied that the laws are overall for their benefit. If it fails to do so, the supremacy would be rejected by the individual Member States. Without the co-operation of the Member States the Union is powerless. In essence regardless of the legal status of national and European laws, the Union has to co-operate with national governments.
This is meant to be just a brief disussion of EU law supremacy, but hope that it gives you an insight into the topic. It is subject to copyright. You must not therefore copy or adapt it. It is intended for general information purposes only.
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