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EU | Supremacy

Supremacy Doctrine: Overview

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Supremacy Doctrine: Overview

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  • objectives EU (free movement: goods / services / persons)
  • to meet objectives EU law must be applied uniformly in all member states / easiest treat EU as supreme


  • Treaty of Rome silent on supremacy / no future Treaty amends this / no treaty provision stating supremacy
  • why no Treaty provision: diplomatic / public opinion / obviously necessary for workable community / no-one realised how much EU law would be directly effective (doctrine not developed until 1970s)
  • Constitutional Treaty: never in force / expressly stated supremacy when conflict with national law / Lisbon Treaty dropped this provision

International obligations

  • Member states have own mechanisms for incorporating international law
  • Monist: automatically once ratified (France) / Dualist: must be incorporated into domestic law (UK)
  • constitutions: differ relationships between domestic & international law / international supreme (Dutch) / unclear (German) / through legislation (UK)
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Supremacy Doctrine: Overview

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ECJ development

  • Van Gend en Loos: cautious beginning / broad, vague principles of new legal order / EU law supreme over earlier conflicting national law
  • Costa v. ENEL: developed / EU law conflicts with later national law /careful justification via references to treaties: Article 288 TFEU transfer power to EU institutions / Article 5 TEU committed observe EU law
  • Handelsgesellschaft: confident assertion / EU law supreme / even over law enshrined in a Member State's constitution (German Basic Law)
  • Simmenthal: confirmation & consolidation of supremacy doctrine / further refinement that national courts should apply EU law immediately in cases of conflict / not invalidate national law but no effect
  • UK Courts

    • EU law / incorporated European Communities Act 1972 (ECA)
    • ECA s2(4): any enactment passed or to be passed... shall be construed and have effect subject to subsection (1) / community obligations / gives priority to EU law / as required by ECJ
    • traditional: Parliamentary sovereignty & implied repeal made EU law supremacy impossible / abide by the statute without regard to the Treaty at all (Felixstowe Dock) / court has no power to set aside Act of Parliament
    • Factortame: interim injunction / court would have to suspend the Act / no power to do so / necessary for EU rights to be upheld / HoL referred to ECJ / ECJ: should recognise supremacy of EU law / effectively grant injunction against Crown
    • EU law major limit on parliamentary sovereignty / if domestic statute expressly overruled ECA / UK courts probably obey / UK would breach Treaty obligations
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