INTRODUCTION:
One of the key elements of the European Union “Hereinafter referred to as EU” is the extraordinary degree to which it has penetrated the individual legal system of its Member States. As the EU comprises 27 Member States each having separate constitutional laws based on the rule of law. Every action taken by the EU is founded on treaties that have been approved democratically by its members. EU laws help to achieve the objectives of the EU treaties and put EU policies into practice. However, EU laws are enforced in a decentralized manner through the medium of the domestic judicial systems. The given question calls on discussing one of the core principles of European Union Law-supremacy. The discussion will be divided into two parts. Firstly, how the case law of the Court of Justice of EU “hereinafter referred to as CJEU” has developed the principle. Secondly, how the member states’ courts such as France and Germany have applied and received it. It will be carried out while ascertaining the extent to which the statement made in the question can be agreed with.
Discussion:
EU Law is separated into two main types: primary(treaties) and secondary (regulations, directives, decisions, recommendations, and opinions)[1]. It has a number of institutions involved in taking decisions and making EU laws that apply to all Member States. The EU only has the powers that its members decide to give it[2]. Whereas, each Member State has its own national law which is derived through the constitution, statutes, or legislations. However, in case of conflict between EU laws and the national laws of Member States, EU law will prevail. If this were not the case, Member States could simply allow their national laws to take precedence over primary or secondary EU legislation, and the pursuit of EU policies would become unworkable[3].
Furthermore, it must be borne in mind at the very outset that the first part of discussion-evolution of the principle of supremacy is not codified in any treaty. Rather, it is a product of the case law of CJEU. The only time it came close to being codified in a treaty was in Declaration (No.17) on Primacy in the Lisbon Treaty[4]. There exists a system of decentralized enforcement for Union Laws which is built upon several main legal pillars. The most important are the principles of direct effect and supremacy. The foundational ruling on direct effect is the very first case to mention it, albeit implicitly, the landmark Van Gend En Loos delivered by the Court of Justice in 1963[5]. The Court declared that the laws adopted by EU institutions were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Member States. EU law therefore has a direct effect. However, the case more closely associated with laying out this principle in Costa. v.ENEL[6].
Subsequently, the courts developed the principle further in the famed Internationale Handelsgesellschaft mbH case[7]. Here, they took a step further by saying that Union law will prevail even where the conflict was with a member state’s core constitutional principle. This can be seen as a further attempt to ensure that the supremacy is not undermined by states being able to rely on the justification that since the matter is of core constitutional importance for them they are going to give preference to their own laws. Because this can form uncertainty and non-uniformity regarding the law to a considerable extent. And, go against the aforementioned aims of supremacy. Thus, evolving further as a tool to ensure supremacy.
Thus, having considerably discussed the formation, evolution, and refinement of the principle of sovereignty along with the reasons now move towards discussing the second part. Which is related to how the member states have received and reacted to this principle. In the study of EU law’s domestic perspective, it has to be understood in light of 28 different views. However, for the purposes of further discussion, the following are the views of German and French courts.
French courts have a split view in relation to this matter. The French courts are divided into two hierarchies, both with their own appeal courts and final appeal, and a Constitutional Court (Conseil Constitutionnel). However, the courts have had different approaches on how they deal with European Law. One of the hierarchies: ‘The Courts of Ordinary Jurisdiction’ (Cour de Cassation) gave supremacy to European Law by creating Article 234 of the Treaty on the European Union (TEU), now known as Article 267 of the Treaty on the Functioning of the European Union (TFEU)[8]. By doing this, this allows The Court of Justice of the EU to have jurisdiction over the interpretation of French legislation treaties. The Counsel d’état (Administrative Court) has shown reluctance through the case of the Minister of Interior. v.Cohn-Bendit[9]. However, this has been seen in relation to directives only. In the case of Boisdet[10], they accepted supremacy in relation to a regulation and also applied the Factortame principle in remedying. On the other hand, a clear affirmation and acceptance of supremacy are shown in the civil courts (Cour de Cassation) through the case of Vabre and Weigel[11].
Both hierarchies of the courts are also subject to Article 55, in the sense that they must reference Article 55 when there is a situation of compatibility between national and EU law; although the French lower courts are bound to follow the higher courts: in rare instances, do the courts reference either Article 55 or even the higher courts; this displays how reluctant French courts are to fully adapt to the supremacy of EU law.
[1]University of Sunderland. What Is European Law and How Does It Work? (September 20, 2022) <https://online.sunderland.ac.uk/what-is-european-law-and-how-does-it-work/> accessed 18 July,2023
[2] Articles 5 and 13 Treaty on European Union (TEU).
[3] Pavelas Ravluševičius. “The primacy and supremacy clauses of European Union Law and their application in the legal order of the Republic of Lithuania.” (2017). Revista da Faculdade de Direito, Universidade de São Paulo 112: 303-322.
[4]Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007 – A. Declarations concerning provisions of the Treaties – 17. Declaration concerning primacy <https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX%3A12007L%2FAFI%2FDCL%2F17#:~:text=The%20Conference%20recalls%20that%2C%20in,by%20the%20said%20case%20law. <accessed 16 July ,2023>
[5]Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963)
[6] Case 6/64 Flaminio Costa v ENEL, EU:C:1964:66, [1964] ECR 585, 15 July 1964.
[7] Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratsstelle fur Getreide und Futtermitte [1970] ECR 1125
[8] Sharifullah Dorani. “The Supremacy of EU Law over National Law: The ECJ’s Perspectives.” (2020). Political Reflections 6, no. 1: 15-21.
[9] Minister of the Interior v Cohn-Bendit [1978] 12 WLUK 179
[10] Boisdet, Re [1990] 9 WLUK 75
[11] Administration des Douanes v. Société Cafés Jacques Vabre and Weigel et Compagnie 1975
Recent Comments