Introduction
The principle of supremacy of European Union (EU) law over national law, established in the landmark case of Costa v ENEL (1964), is a cornerstone of the EU legal order. It ensures that EU legislation takes precedence over conflicting national laws, fostering uniformity and integration across Member States. However, when EU law intersects with issues of national identity—often tied to cultural, historical, or constitutional values—its supremacy becomes a contentious issue. This essay explores the controversies surrounding the application of EU law in matters of national identity, focusing on the resistance from certain Member States. It will first outline the legal framework of EU supremacy, then examine specific areas of tension, and finally assess the reasons for and implications of resistance. By evaluating key judicial decisions, academic perspectives, and examples of Member State opposition, this essay aims to provide a balanced understanding of this complex issue.
The Legal Framework of EU Supremacy
The doctrine of supremacy, though not explicitly stated in the EU Treaties, was judicially affirmed by the Court of Justice of the European Union (CJEU) in Costa v ENEL (Case 6/64). The CJEU declared that EU law constitutes an autonomous legal system, binding on Member States and prevailing over any conflicting national legislation, even if the latter is of constitutional status (Craig and de Búrca, 2020). This principle was further reinforced in cases such as Simmenthal (Case 106/77), where the CJEU ruled that national courts must disapply domestic laws that conflict with EU provisions.
While the supremacy of EU law is intended to ensure coherence and effectiveness within the Union, its application to matters of national identity poses unique challenges. National identity, as protected under Article 4(2) of the Treaty on European Union (TEU), encompasses constitutional structures, cultural heritage, and fundamental societal values. The CJEU has acknowledged the need to respect such identities, as seen in cases like Omega Spielhallen (Case C-36/02), where Germany’s prohibition of certain games was upheld on grounds of protecting human dignity, despite conflicting with EU free movement rules (Douglas-Scott, 2013). However, the balance between EU integration and national autonomy remains uneasy, often leading to disputes over where the boundaries of supremacy should lie.
Tensions in Matters of National Identity
One significant area of tension arises when EU law challenges deeply rooted constitutional principles or cultural norms. For instance, in Poland, the Constitutional Tribunal has repeatedly asserted the primacy of the Polish Constitution over EU law, particularly in areas it considers central to national sovereignty. A notable example is the Tribunal’s 2021 ruling, which declared certain provisions of the TEU incompatible with the Polish Constitution, arguing that EU institutions had overstepped their competences in judicial reforms (Sadurski, 2021). This decision directly challenged the CJEU’s authority and underscored a broader resistance to EU interference in matters deemed intrinsic to national identity, such as the rule of law and judicial independence.
Similarly, Hungary has resisted EU law in areas tied to cultural and political identity. The Hungarian government under Viktor Orbán has enacted policies—such as restrictions on NGOs and media freedom—that conflict with EU fundamental rights, often justifying them as necessary to protect national values (Kelemen and Pech, 2019). While the CJEU has issued rulings against Hungary, as in Commission v Hungary (Case C-286/12), enforcement remains problematic, highlighting the limits of EU legal supremacy when faced with determined national opposition.
These examples illustrate a recurring theme: Member States may accept EU supremacy in economic or technical matters but resist it when it encroaches on issues of identity. Arguably, this resistance is not merely a rejection of legal norms but a reflection of deeper political and ideological divides within the EU. The challenge for the Union, therefore, lies in reconciling its integrationist ambitions with the diverse identities of its members.
Reasons for Resistance and Wider Implications
Resistance to EU law in matters of national identity can be attributed to several factors. Firstly, historical and political contexts play a crucial role. In post-communist states like Poland and Hungary, sovereignty is often viewed as a hard-won achievement, making any perceived erosion by EU institutions particularly sensitive (Sadurski, 2021). Secondly, populist and nationalist movements across Europe have capitalised on anti-EU sentiment, framing the supremacy of EU law as an attack on national traditions and autonomy. This narrative has gained traction in domestic politics, further fuelling opposition.
Moreover, the CJEU’s expansive interpretation of EU competences has sometimes exacerbated tensions. For example, in cases involving fundamental rights, such as Melloni (Case C-399/11), the CJEU prioritised EU law over higher national constitutional protections, prompting criticism that it disregards Member States’ unique legal traditions (Douglas-Scott, 2013). While the CJEU aims to ensure uniformity, such decisions can alienate national courts and policymakers, reinforcing perceptions of an overreaching Union.
The implications of this resistance are significant. On one hand, persistent defiance by Member States undermines the integrity of the EU legal order and could embolden others to challenge EU authority. On the other hand, it highlights the need for the EU to adopt a more nuanced approach, perhaps by granting greater deference to national identities under Article 4(2) TEU. Indeed, without addressing these underlying tensions, the Union risks further fragmentation, particularly in an era of rising Euroscepticism.
Conclusion
In conclusion, the supremacy of EU law over national law remains a controversial and contested principle when applied to matters of national identity. While the CJEU has consistently upheld the primacy of EU law, resistance from Member States such as Poland and Hungary reveals the limits of this doctrine in the face of deeply held cultural and constitutional values. This essay has demonstrated that such opposition is rooted in historical, political, and ideological factors, often compounded by the CJEU’s broad interpretation of EU competences. The resulting tensions pose a challenge to the EU’s cohesion, suggesting a need for greater dialogue and flexibility in accommodating national identities. Ultimately, balancing integration with diversity will be critical to sustaining the Union’s legitimacy and effectiveness in the long term. As debates over sovereignty and identity continue, the principle of supremacy will likely remain a focal point of contention, demanding careful navigation by both EU institutions and Member States.
References
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th edn. Oxford University Press.
- Douglas-Scott, S. (2013) Constitutional Law of the European Union. 2nd edn. Pearson Education.
- Kelemen, R.D. and Pech, L. (2019) ‘The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland’, Cambridge Yearbook of European Legal Studies, 21, pp. 59-74.
- Sadurski, W. (2021) ‘Poland’s Constitutional Tribunal under PiS: From an Activist Court, to a Paralysed Tribunal, to a Governmental Enabler’, International Journal of Constitutional Law, 19(1), pp. 63-84.
