Introduction
The doctrines of supremacy and direct effect are cornerstone principles of European Union (EU) law, established by the European Court of Justice (ECJ, now the Court of Justice of the European Union, CJEU) to ensure the uniform application and effectiveness of EU law across Member States. These doctrines have, however, sparked significant debate regarding their legitimacy and implications for national sovereignty. This essay critically examines two intertwined assertions: first, that the doctrines of supremacy and direct effect represent an unjustified power grab by the CJEU; and second, that the legal effect of EU law within Member States’ legal systems should be determined by each Member State. Through an analysis of key case law, academic perspectives, and the broader implications for the EU legal order, this essay argues that while the CJEU’s development of these doctrines can be seen as extending its authority, they are arguably necessary for the functioning of the EU. Furthermore, allowing Member States sole discretion over the legal effect of EU law risks undermining the Union’s foundational principles.
The Doctrines of Supremacy and Direct Effect: A Judicial Power Grab?
The doctrine of supremacy, articulated in the landmark case of Costa v ENEL (1964), establishes that EU law takes precedence over conflicting national law, irrespective of the latter’s date or hierarchical status within the domestic legal order. The CJEU declared that “the law stemming from the Treaty… could not be overridden by domestic legal provisions” (Case 6/64, Costa v ENEL). Similarly, direct effect, introduced in Van Gend en Loos (1963), enables individuals to invoke certain EU provisions directly before national courts, provided they are clear, precise, and unconditional (Case 26/62, Van Gend en Loos). These principles were not explicitly enshrined in the founding treaties but were instead developed through CJEU jurisprudence, prompting criticism that the Court overstepped its judicial role.
Critics argue that the CJEU’s assertion of supremacy and direct effect constitutes a form of judicial activism, as it effectively reshapes the balance of power between the EU and its Member States without explicit treaty mandate. Weatherill (2016) notes that these doctrines have been perceived as diminishing national sovereignty by subordinating domestic legal systems to EU law, often without clear democratic oversight. For instance, in the UK context, prior to Brexit, tensions arose in cases such as R v Secretary of State for Transport, ex parte Factortame Ltd (1990), where the UK courts disapplied national legislation to uphold EU law—a decision that some viewed as an erosion of parliamentary sovereignty (Craig, 2018). This suggests that the CJEU’s expansive interpretation of its role may indeed be seen as a power grab, particularly by those who prioritise national autonomy.
However, it is worth considering whether this development was unjustified. The CJEU’s rationale was rooted in ensuring the effectiveness (effet utile) of EU law, which would be undermined if Member States could unilaterally disregard EU obligations. Indeed, without supremacy, conflicting national laws could fragment the internal market and hinder the EU’s integrationist aims (De Witte, 2011). Therefore, while the CJEU’s approach may appear overreaching, it can also be viewed as a pragmatic response to the challenges of creating a cohesive legal order across diverse jurisdictions.
The Legal Effect of EU Law: A Matter for Member States?
The second assertion—that the legal effect of EU law should be determined by individual Member States—raises fundamental questions about the nature of the EU as a supranational entity. Currently, the uniform application of EU law is ensured through mechanisms like direct effect and CJEU rulings, which limit national discretion in implementation. Allowing Member States to decide the legal effect of EU law could, in theory, restore greater sovereignty, aligning with principles of subsidiarity and democratic accountability. For example, a Member State could prioritise domestic policy objectives over EU directives if they conflict with national interests.
Nevertheless, such a system would likely undermine the coherence and integrity of the EU legal order. If each Member State could unilaterally determine the applicability of EU law, the result would be a patchwork of legal standards, potentially leading to discrimination and inequality among EU citizens. As Chalmers et al. (2019) argue, the principle of uniform application is central to the EU’s aim of creating a single market and ensuring equal treatment. A pertinent example is the enforcement of free movement rights; if a Member State could opt out of recognising these rights, the foundational freedoms of the EU would be jeopardised.
Moreover, the CJEU has repeatedly affirmed that EU law must have a consistent effect across all Member States to prevent legal uncertainty. In cases such as Simmenthal (1978), the Court held that national courts are obliged to set aside any conflicting domestic provisions, reinforcing the idea that Member States cannot unilaterally determine the effect of EU law (Case 106/77, Simmenthal). Allowing such discretion would also risk non-compliance, as Member States might prioritise short-term political gains over long-term EU obligations, a concern echoed by De Witte (2011).
On the other hand, it could be argued that greater national control over the legal effect of EU law might alleviate tensions between national and supranational authorities, as seen in the UK’s pre-Brexit struggles with EU law’s primacy. However, this must be weighed against the potential for legal fragmentation and the erosion of mutual trust among Member States, which are vital to the EU’s functioning.
Balancing Sovereignty and Supranationalism
The tension between national sovereignty and EU integration lies at the heart of debates over supremacy and direct effect. While these doctrines undeniably enhance the CJEU’s authority, they also serve a functional purpose in maintaining the EU’s legal coherence. Critics may view the Court’s actions as an overreach, but it is arguably a necessary trade-off for the benefits of membership, such as access to the single market and shared regulatory standards. Furthermore, Member States have avenues to influence EU law through political processes, such as treaty amendments and Council negotiations, suggesting that the CJEU’s role is not entirely unchecked (Craig, 2018).
Regarding the legal effect of EU law, a purely national approach seems impractical within the current framework of the EU. While it might empower Member States, it risks dismantling the supranational structure that underpins the Union. A potential middle ground could involve greater dialogue between national courts and the CJEU through mechanisms like the preliminary reference procedure, allowing for more nuanced accommodation of national concerns without sacrificing uniformity (Chalmers et al., 2019).
Conclusion
In conclusion, the doctrines of supremacy and direct effect, while contentious, are not merely an unjustified power grab by the CJEU but rather a judicial response to the practical demands of EU integration. Although they limit national sovereignty, they are crucial for ensuring the effectiveness and uniformity of EU law across Member States. Similarly, allowing each Member State to determine the legal effect of EU law would likely result in fragmentation and undermine the Union’s objectives. The challenge lies in striking a balance between respecting national autonomy and maintaining a cohesive legal order. Future discourse must focus on mechanisms that enhance cooperation between national and EU institutions, ensuring that integration does not come at the expense of democratic legitimacy. Ultimately, while these debates highlight the complexities of the EU’s supranational nature, they also underscore the importance of a shared commitment to its foundational principles.
References
- Chalmers, D., Davies, G., and Monti, G. (2019) European Union Law: Text and Materials. 4th ed. Cambridge: Cambridge University Press.
- Craig, P. (2018) EU Law: Text, Cases, and Materials. 7th ed. Oxford: Oxford University Press.
- De Witte, B. (2011) The European Union as an International Legal Experiment. In: De Burca, G. and Weiler, J.H.H. (eds.) The Worlds of European Constitutionalism. Cambridge: Cambridge University Press.
- Weatherill, S. (2016) Law and Values in the European Union. Oxford: Oxford University Press.
