][Supremacy of EU Law Notes
What is supremacy?
Definition
The doctrine of supremacy is stated in Declaration 17 attached to the Treaty of Lisbon:
"In accordance with the well settled case law of the CJEU, the Treaties and the law adopted by the Union … have primacy over the law of member States, under the conditions laid down by said case law"
NOTE: declarations are not legally binding. However, this does not seem to matter - an annex to the Declaration provided an opinion of the Council Legal Service which states that
"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 of
Justice"
Dashwood has described the principle of supremacy as being a manifestation of the principle of sincere cooperation (Article 4(3) TFEU).
 The principle does not render contrary national provision to be invalid, but rather requires them to be "disapplied" so far as they are incompatible with EU law
(IN.CO.GE)
De Witte has said that there are two possible interpretations of primacy:

1. It merely requires national courts to find a way to recognise the principles and achieve the result imposed by the CJEU

2. National courts have no choice and cannot resist the authority of EU law
This latter interpretation implies that national Courts are exercising a jurisdiction attributed to them by EU law, and not a jurisdiction granted by their own constitution.
 Many EU law scholars adopted the latter view, whilst national courts (with the possible exception of the Netherlands) adopted the former view
Limitations
It is important to note that, supremacy is not totally unconditional. There are two important limitations on its operation:

1. CJEU Case Law

Under the CJEU's own case law, it can be seen that supremacy is limited -
sometimes it must be balanced against equally fundamental principles of the
EU legal order (for instance, legal certainty or legitimate expectations.
 EU law therefore constitutes a limit to primacy

Kuhne and Heitz
 Facts: The question was asked whether or not supremacy might require national authorities to reopen decisions that have become final where it becomes apparent from a subsequent CJEU judgement that the national cases were decided on the basis of a misinterpretation of EU law
 Held: Legal certainty is one of the general principles of EU law and implies that there is no general requirement in principle to reopen a decision even where it is incompatible with certain provisions of EU
law

Asda Stores
 Held: The CJEU refused to sanction the enforcement against individuals of (valid) EU legislation which had not been adequately published

Defrenne
 Held: the CJEU limited the effects of its judgement to the future in order to preserve legal certainty

2. Member State Courts

Member State courts have, for the most part, had difficult accommodating the
CJEU's vision of supremacy into their domestic constitutional structures
 The UK
 s2 ECA 1972 is a clear attempt to give legislative force to supremacy, but it clashes with fundamental principles of British constitutional law

In particular, it conflicts with parliamentary sovereignty which prevents Parliament from curtailing the fullest legislative prerogatives of a subsequent Parliament
 In Factortame (No 2) the House of Lords accepted a compromised through the implied supremacy clause which was inserted in to all pieces of subsequent legislation

Whilst this gave practical force to the principle of supremacy, its source and justification remained in
Parliamentary sovereignty

The consequences of the implied supremacy clause is that if Parliament expressly derogated from s2 ECA 1972, then
English courts would be obliged to give effect to that subsequent provision over supremacy
 In Thoburn, Laws LJ said that "the fundamental basis of the UK's relations with the EU rests with the domestic, not the European,
legal powers"
 Germany
 Whilst German judges remain open and friendly to the process of
European integration, the principle of supremacy is condition and its continued enforcement with Germany should not be taken for granted
 Solange I - it was suggested that in the event of a conflict between EU rights and rights contained in the German constitution, the latter would prevail
 Solange II - as long as the EU generally ensures an effective protection of fundamental rights, substantially similar to the level guaranteed under German law, the national courts should refrain from exercising their jurisdiction to review the legality of
EU acts according to the German constitution
 Brunner - supremacy is not unconditional within the German legal system.
o The BVerfG has the ultimate jurisdiction to police the compatibility of EU law with the German constitution with regards to fundamental rights but also with regards to ultra vires review
 Bananas - the BVerfG refused to exercise is reserved jurisdiction to review because Solange II and Brunner had been respected

NOTE: the German administrative and tax courts had declared the bananas regulation unlawful and inapplicable in German territory
 Lisbon - even after Lisbon, the EU remains an association of sovereign states founded upon international law, whereby
Member States continue to provided the primary focus of democratic expression for their own citizens

The BVerfG warned that this "union of national states"
must be taken seriously by reasserting its ultimate right of review
 Honeywell - this developed the terms on which ultra vires review would be conducted - it will apply in relation to a
"sufficiently serious" violation

The position of supremacy in relation to national courts has been met with mixed views
 MacCormick argues that it encourages a constructive dialogue
 BUT: Reich question the legitimacy of a dialogue where domestic courts unilaterally reject Treaty obligations entered into by elected bodies
How have the EU courts developed the supremacy of EU law?
General
The EEC Treaty contained no provision dealing with the supremacy of Community law over national law. The development of the principle has been the result of the CJEU's case law.
It first touched in the issue in in the early years of the Community, where the court referred to the Community as establishing a new legal order 

Van Gend en Loos

Facts: The reclassification of a product imported into the Netherlands resulted in a higher level of customs duty. This was contrary to Article 20 TFEU which provided that no new customs duties would be imposed.
 There was, as such, a conflict between the national customs regulation and the Treaty article

Held:
 AG: AG Romer said that Community law does not just consist of contractual relations between a number of States considered as subjects; it has its own institutions, independent of the Member
States , endowed with the powers to […] make rules of law which directly create rights in favour of and impose duties on Member States as well as their […] citizens
 The Treaty creates provisions which are clearly intended to be incorporated in national law and to modify or supplement it;
but on the other hand "large parts of the Treaty" expressly refer to the obligations of Member States and do not contain rules having a direct internal effect
 NOTE: AG Romer's Opinion highlights the complexity of EU
law. If the EU is more than contractual relations, it nevertheless remains that it does consist of contractual relations between
Member States who are masters of the Treaties. It has its own institutions, but these institutions represent various interests in the Union. It can make laws that directly create rights and duties for citizens, but these powers must be exercised within limits of competence. The Treaty itself is a complex instrument,
with provisions clearly intended to be incorporated in national law, provisions that expressly refer to the obligations of
Member States, and provisions that are ambiguous and could go either way
 CJEU: The purpose of the EEC Treaty is to create a common market,
the functioning of which directly affects the citizens of the Community.
The treaty is thus more than an agreement creating only mutual obligations between the contacting parties.
 This interpretation is confirmed by the preamble to the Treaty which, in addition to mentioning governments, affects individuals.
 The creation of organs institutionalizing certain sovereign rights, the exercise of which affects both member-States and citizens is a particular example. In addition, the nationals of the
States, united into the Community, are required to collaborate in the functioning of that Community. Furthermore, the role of the Court of Justice, the aim of which is to ensure uniformity of interpretation of the Treaty by the national courts, confirms 

that the States recognised in Community law have an authority capable of being invoked by their nationals before those courts.
We must conclude from this that the Community constitutes a new legal order in international law, for whose benefit the
States have limited their sovereign rights, albeit within limited field, and the subjects of which comprise not only the Member
States but also their nationals

The CJEU relied on the various creations of the Treaty
(institutions and so forth) and their ultimate effect on both the Member States and the citizens of the
Community

The Beginnings of Supremacy
Very shortly after its allusion to supremacy in Van Gend en Loos, the CJEU established the doctrine properly.
 Costa v ENEL
o Facts: An Italian law sought to nationalise electricity production and distribution. It was claimed that this breached EU law.
 The Italian Government argued that the matter was one of Italian law and that the Italian legislation post-dated the EC Treaty and so should prevail

Held: The CJEU fleshed out the idea of supremacy
 By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity for representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the Community, the Member States have limited their sovereign rights, albeit within limited filed, and have thus created a body of law which binds both their nationals and themselves
 The integration into the laws of each Member State of provisions which derive from the Community, and more generally the terms and spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on the basis of reciprocity
 BUT: question the extent to which this is actually true. Is this new legal order what the Member States signed up for? As
Jeremias asks, what does this new legal order actually entail?
 The executive force of Community law cannot vary from one state to another in deference to subsequent laws without jeopardising the attainment of the Treaty objectives
 The law stemming from the Treaty, an independent source of law,
could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the
Community itself being called into question Scope: Supremacy Applicable Against All National Law
In Costa v ENEL the CJEU set the foundations for supremacy, but did nothing to tell us the scope of the principle.
The CJEU has subsequently ruled that the legal status of a conflicting national measure was not relevant as to whether or not EU law should take precedence.
 International Handelsgesellschaft

Facts: The applicant argued that a Community regulation under which a deposit would be forfeited if the goods were not exported within the period of time set was contrary to principles of national constitutional law, including freedom of action and of disposition, economic liberty, and proportionality.
o Held: Recourse to the legal rules or concepts of national law in order to judge the validity of measures adopted by het institutions of the Community would have an adverse effect on the uniformity and efficacy of EU law. The validity of such measures can only be judged in the light of Community law
 In fact, the law stemming from the Treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called int to question.
 BUT: an examination should be made as to whether or not any analogous guarantee inherent in Community law has been disregarded… (that is, we should see if there is a basis for finding the EU law invalid on the basis of another EU law.
Scope: Supremacy Applicable to Laws that Pre-Date and Post-Date EU Law
The CJEU has made it clear that supremacy will apply irrespective of whether or not the national law pre-dated or post-dated EU law
 Simmenthal

Facts: An Italian system of fees for veterinary inspections of beef imports had been held by the CJEU to breach EU law. An Italian magistrate asked the CJEU
whether he was required to disapply the relevant Italian law, a power enjoyed only by the Italian Constitutional Court

Held: The magistrate was required to disapply the law
 Every national court must, in a case within its jurisdiction, apply
Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of law which may conflict with it, whether prior or subsequent to the
Community rule
Scope: Supremacy Applicable By All National Courts The CJEU has ruled that all national courts are under an obligation to disapply conflicting national law, regardless of whether or not only a superior court has the domestic jurisdiction to do so
 Simmenthal

Facts: An Italian system of fees for veterinary inspections of beef imports had been held by the CJEU to breach EU law. An Italian magistrate asked the CJEU
whether he was required to disapply the relevant Italian law, a power enjoyed only by the Italian Constitutional Court

Held: The magistrate was required to disapply the law
 In accordance with the principle of the precedence of Community law,
the relationship between provisions of the Treaty and directly applicable measures of the institutions on the one hand and the national law of the Member States on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law but — in so far as they are an integral part of, and take precedence in, the legal order applicable in the territory of each of the Member States — also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions.
 Any recognition that national legislative measures that are incompatible with provisions of Community law had any legal effect would amount to the denial of the effectiveness of obligations undertaken unconditionally and irrevocably by
Member States pursuant to the Treaty and would thus imperil the very foundations of the Community
 Every national court must apply Community law in its entirety
 Any provision of a national legal system and any legislative,
administrative or judicial practice which might impar the effectiveness of Community law by withholding from the national court the power to do everything necessary to set aside national legislative provisions which might prevent
Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law
 NOTE: in this case the supremacy of EU law expands domestic judicial review by giving national courts the power to disapply administrative and legislative acts - this potentially constitutes a serious domestic constitutional amendment
 It further constitutes a dispersion of power within the judiciary.
The Simmenthal principle has been applied in a range of later cases
 Melki, Abdeli

Facts: This case concerned the compatibility of the QPC mechanism with
Article 267 TFEU (the QPC mechanism imposed a requirement for an interlocutory procedure to review the constitutionality of a national law before making a reference to the CJEU

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