Introduction
The doctrine of supremacy of Union law, a cornerstone of the European Union’s legal framework, asserts that EU law takes precedence over national laws of Member States in cases of conflict. This principle, first articulated by the European Court of Justice (ECJ) in the landmark case of Costa v ENEL (1964), is often regarded as a logical inference from the treaties establishing the EU, particularly the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). However, its acceptance by national courts has varied, reflecting tensions between national sovereignty and European integration. This essay explores whether the supremacy doctrine is a necessary inference from Union treaties and examines its acceptance by the national courts of Germany and the United Kingdom, two significant Member States with distinct legal traditions. Through this analysis, the essay aims to highlight the complexities of balancing Union objectives with national constitutional principles.
The Doctrine of Supremacy: A Logical Inference?
The doctrine of supremacy is arguably a logical inference from the Union treaties, as the creation of a unified legal order necessitates a mechanism to resolve conflicts between national and EU law. The TEU, particularly Article 4(3), imposes a duty of sincere cooperation on Member States, implying that national laws must not undermine the effectiveness of EU law. Furthermore, the TFEU’s provisions, such as those on the internal market, would be rendered ineffective without a hierarchy prioritising EU rules over conflicting national legislation. The ECJ in Costa v ENEL (Case 6/64) reasoned that the transfer of sovereign powers to the EU by Member States inherently creates a legal order distinct from international law, where EU law must prevail to ensure uniform application across the Union (Craig and de Búrca, 2020). Without supremacy, the Union’s ability to function as an integrated entity would be severely compromised.
However, while logical, the doctrine is not explicitly enshrined in the treaties, leading some scholars to question its necessity. Indeed, the principle relies heavily on judicial interpretation rather than textual clarity, which has fuelled debates over its legitimacy. Critics argue that supremacy encroaches on national sovereignty, a core concern for many Member States, suggesting that its inference, though practical, is not inevitable but rather a product of the ECJ’s activist stance (Weiler, 1991). This tension between logic and sovereignty underpins much of the resistance encountered in national jurisdictions.
Acceptance by National Courts: Germany
In Germany, the acceptance of EU law supremacy has been cautious and conditional. The German Federal Constitutional Court (Bundesverfassungsgericht) initially resisted full acceptance in cases like Solange I (1974), asserting that EU law could not override fundamental rights enshrined in the German Basic Law. However, in Solange II (1986), the Court adopted a more cooperative stance, accepting EU law supremacy provided that fundamental rights were adequately protected at the EU level (Alter, 2001). More recently, in the PSPP case (2020), the Court controversially challenged the ECJ’s authority by ruling that an EU institution’s actions could be ultra vires if they exceed EU competences, highlighting ongoing reservations about unchecked supremacy. This demonstrates Germany’s pragmatic, yet critical, engagement with the doctrine, balancing EU integration with national constitutional identity.
Acceptance by National Courts: The United Kingdom
The United Kingdom, prior to Brexit, also exhibited a qualified acceptance of EU law supremacy. The European Communities Act 1972 provided the legal basis for the direct effect and primacy of EU law in the UK, a principle upheld by the House of Lords in cases like Factortame (1990), where national legislation was disapplied to comply with EU law (Loveland, 2018). However, the UK judiciary maintained that parliamentary sovereignty remained the ultimate constitutional principle, suggesting that Parliament could theoretically repeal the 1972 Act. This stance reflected a dualist approach, whereby EU law’s supremacy was contingent on domestic legislative will rather than an inherent obligation (Wade, 1996). Thus, while the UK courts generally complied with EU law, their acceptance was pragmatic rather than absolute, rooted in statutory rather than constitutional commitment.
Conclusion
In conclusion, the doctrine of supremacy of Union law can be considered a logical inference from the Union treaties, driven by the need for a coherent and effective legal order, though its necessity remains a matter of debate due to the absence of explicit treaty provisions. The acceptance of this doctrine by national courts, as seen in Germany and the UK, reveals a complex interplay between EU integration and national sovereignty. Germany’s conditional acceptance prioritises constitutional safeguards, while the UK’s pre-Brexit approach was grounded in parliamentary sovereignty, demonstrating practical compliance rather than ideological endorsement. These examples underscore the ongoing challenge of harmonising Union objectives with national legal traditions, suggesting that while supremacy may be a logical inference, its full acceptance remains neither uniform nor inevitable. Future developments in EU law and national responses will likely continue to shape this delicate balance.
References
- Alter, K.J. (2001) Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe. Oxford University Press.
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Loveland, I. (2018) Constitutional Law, Administrative Law, and Human Rights: A Critical Introduction. 8th ed. Oxford University Press.
- Wade, H.W.R. (1996) Sovereignty – Revolution or Evolution? Law Quarterly Review, 112, pp. 568-575.
- Weiler, J.H.H. (1991) The Transformation of Europe. Yale Law Journal, 100(8), pp. 2403-2483.
