In this essay, we will be discussing the doctrine of Supremacy and whether or not it has been an essential element in the creating of a “new legal order”. The meaning of Supremacy is; European Union law takes precedence over all the sources and forms of national law. The doctrine of Supremacy is not evidently stated in the Treaties, neither is the relationship between European Union law and Member State law and which takes precedence, however, a broad definition can be found in the Treaty on the Function of the European Union (TFEU),. Declaration 17 states:
‘The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.’
This means that Union law has precedence over the law of the member states, however, it does not specify any elements or requirements, that is necessary to apply Supremacy. It is instead stated in case law.
However, before the doctrine of Supremacy came about, the Treaty of Rome was silent on the issue of which law should take precedence if there ever was a conflict between Union and national law. It was therefore left to be decided by the court of the Member States and was assisted by the Court of Justice under Article 267 of the TFEU, which stated, ‘Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.’
The Court of Justice of the European Union (CJEU) is one of the institutions of the European Union. Its authority is supreme over all matter within Union Law, in addition, it ensures that Union law is interpreted and applied the same in every Member state, and see to it that the countries and the other EU institutions abide by European Union law.
It was clear that if the national state courts applied their own rules to the question on whether domestic or EU law had priority, there would be no uniformity of the applications and the primacy of the EU law could not be guaranteed throughout the entire Union. In addition, the objective of creating a single Internal Market requires there to be consistency between Member States, which would depend on an unvaried application of Union Law within the Member States. These were the primary reasons that were advanced in the case of Van Gend en Loos 1964. In this, the Dutch were denying the direct effect of Article 30 in the TFEU, which is about having no customs duties on imports and exports between member states. This not only weakened the effect of Union law but also compromised the solidarity between Member States. Although the main legal problem in Van Gend en Loos was related to the direct effect of Union law, in giving the judgement the court had accepted that a “new legal order” had been created. This then placed the basis for the decision in the case of Costa v Enel 1964. Therefore, Supremacy was important to the effectiveness of the Union, which is what possibly lead the Court of Justice to create a way to deal with the issue, which would be the principle of supremacy. Thus, it could be observed that the principle of supremacy is important in constituting a “new legal order”.
The doctrine of Supremacy was fully developed in the aforementioned case of Costa v Enel. Here is a short recount of the case, Enel was an electric company and Costa was a lawyer who owned shares in one pre-nationalised electric company. Costa had refused to pay his bill and he reasoned it to be due to the conflict between many Treaty provisions and an Italian statute nationalising the electric company, which he considered unlawful due to it infringing European Community laws. It was held that the European Union Treaties had created its own legal system, which became an essential element of the legal systems of the Member States and which their courts should apply. In short Union law should reign supreme over national law because its force should not vary from one Member State to another. This means that by joining the European Union they have given up certain sovereignty over making law on specific issues, they are also bound by Union law and as a result Member States cannot introduce new national laws that would contradict Union law.
The Supremacy doctrine was later affirmed in the case of Internationale Handelsgesellschaft mbH v EVGF 1970. The judgement was that the legality of the Treaty cannot be judged in light of national law, it is said that Union law should not be affected by allegations that it goes against fundamental rights. Thus affirming the doctrine of Supremacy. Another case that further restates the principle of Supremacy is the case of Amministrazione delle Finanze v Simmenthal 1978. It was stated that if there ever were to be any conflict between Union law and national law, the domestic court has to apply Union law over any conflicting law, this again affirms the principle of Supremacy.
The most, some would say, extreme consequence of the doctrine of Supremacy could be seen in the case of R v Secretary of State for Transport, ex parte Factortame 1990 where there was a nationality requirement that for a vessel more than a certain percentage of ownership had to be in the of the UK nationals. It was argued that the requirements violated the Article 12 (now Article 18 in the TFEU) and due to this violation, they were denied the rights to fish, which they wouldn’t have under the European Union law. It was held that any provision in a national legal system that may undermine the success of Union law, must be set aside to stop it from preventing Union laws from having its full force. Through this, it represents a crucial statement of Supremacy over national courts and of Union law over national law.
The doctrine of Supremacy, though has made a sizeable amendment in how Union law is dealt with and the impact of this can be felt in member states, such as the UK where Supremacy affected the belief of parliamentary supremacy within the English constitution. Some also state that there is case law that shows that the doctrine is not fully accepted by some Member States, how true this statement is can be deduced from some of the attitudes of them.
France is a Member state with monist approach in the relationship between International and domestic law. This means that international law is signed and will become the law of the domestic legal system automatically. Their stance towards Supremacy of Union law over national law has been divided. The division is between the judicial courts, who searched for ways to resolve the legal problems posed by the membership with the Union. Whilst the two supreme courts: the Court de Cassation and the Conseil d’Etat (CE), often exaggerated the issues. The highest administrative court CE did not give a clear position on the matter of Supremacy. In the case of Chemins de Fer Français 1962 they ruled on the basis of their French Constitution 1958, Article 55, though this was similar to one of the European Economic Community Treaty 1957, it did not solve the problem between of Supremacy of Union law. In the case of Shelle-Berre 1964, the CE refused to refer to the CJEU under the TFEU Article 267 to interpret the Article 37(1) of the TFEU. The CE later attested its dislike toward the European Union in cases that conflicted with the French provisions. The case of Cohn-Bendit 1980 where Cohn-Bendit tried to enter France to work but was denied. He challenged the decision based on free movement rights. The ruling of the CE was that he could not invoke the directives for individuals in national court, even when their Commissaire du Governement, who had similar functions to the CJEU, came up with a different conclusion. The CE ignored the direct effect of directives, which had been established before the case of Cohn-Bendit.
The CE later adopted a more positive view to the doctrine of Supremacy of the Union in the case of Nicolo 1990, where two French citizens challenged the legislation that gave the right to vote for European Parliament, to non-European French citizens, who were from over seas territories. In this the CE acknowledged that Union law would be superior over a French statue in this case of conflict. The CE then further recognised the doctrine of Supremacy in Boisdet 1991, it acknowledged the primacy of European Community (EC) regulations over French statute even though the statute was authorised after the EC regulation.