Supranationalism and the origins of supremacy
Supremacy is a legal principle involving that, in areas where EU Law is relevant to a case that presents a conflict of norms; EU Law should prevail over national Law. It is one of the key principles created by the ECJ that ensure the enforceability of the European legal order. Supremacy comes along with direct effect, indirect effect and State liability (topics covered in Chapter 4).
Supremacy is rooted in supranationalism. Supranationalism is a method of decision-making by a community of States, wherein officials are representing their Member States. Unlike federalism Member States remain sovereign because they decided voluntarily to be part of the organization and are free at any time to leave it. However, Member States are delegating some of their sovereign powers to the community. They might, for instance, be forced to implement a decision that they did not consent with, as far as decisions are taken by majority votes.
The principle of supremacy is not written in the founding treaties, yet is considered to be a fundamental principle of the European Union. It is linked to the doctrine of autonomy, which implies that EU’s institutions are independent from its Member States, and creates an external source of Law despite being created by the Member States themselves. Supremacy’s main consequence on the EU legal order is to reinforce its autonomy. The importance of supremacy in the integration of the European construction was highlighted by Cruz at the time of the European Communities, which he claimed: “without supremacy community law ceases to be communataire”.
The rise of the new European legal order
While supremacy is about the relationship between national Law and EU Law, it is necessary to present the different approaches of international Law within the different Member States. On this issue, European States have adopted two different conceptions: monism or dualism. The monistic conception, on the one hand, provides that international accords, which through ratification bind a country in international law, are considered to be part of the internal legal system without the need for specific measures to incorporate them. The principle of monism is well known in many EU countries, such as France for example, and has been accepted quite early by the Court of Justice.
The dualistic conception, on the other hand, implies that international accords do not become part of the internal legal system at the moment of ratification but only if and to the extent that they are specifically incorporated into national law. This approach is normally taken by the United Kingdom. In addition to this, the particular importance attributed to the sacred parliamentary sovereignty worsens the compliance with the principle of supremacy.
The development of EU Law created much more problem within dualist States. At first it appears to be conflicting with the main principles regulating the European legal order: supremacy, direct effect and indirect effect. Supremacy is also known as “primacy of EU law”, from the French primauté du droit de l’Union. The reasons of its development by the Court are various. First of all, while the main objective of the Communities was to create a single Market, Law had to be harmonized through a uniform application of EU Law within the Member States.
In addition to this, the whole structure of Europe was already based on supranationalism which implies that the interests of the community prevail over national interests. Therefore, supremacy was a necessary component of uniformity and consistency across the Union. The recognition of EU supremacy has two major consequences on the competences of national institutions, often referred to as the doctrine of pre-emption:
It places the CJEU above the national Courts in case of conflict of interpretation of EU Law.
It prevents legislative bodies in the Member States from enacting legislation that might be incompatible with EU Law.
The European construction has been going on for more than 60 years and there is still a debate about supremacy. This is probably because it touches one of the most delicate areas of EU Law because it is related to sovereignty. The nationalists’ biggest fear is to lose sovereignty to the benefits of the community. Unionists would rather qualify it as a mere transfer of sovereignty.
While nothing in the founding treaties was expressly mentioning EU supremacy, the closest the pioneers tackled this issue was this so-called “duty of loyalty” enshrined by Article 10 EC (now replaced by article 4(3) TUE) which stipulates: “The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union”.
The abandoned Treaty Establishing a Constitution for Europe (TECE) included a special provision on supremacy. Instead, declaration 17 of the Lisbon Treaty merely mentions the “primacy”, making reference to the CJEU’s case law. However, the recognition of EU supremacy is mostly due to an intense legislative activism of the ECJ, which has built the principle throughout a range of cases.
The Court, in its case law, before going into a detailed definition of supremacy, acknowledged the “specificity” of the EU legal order that has a “special and original nature” (ECJ Costa v ENEL (Case 6/64) ). This is why supremacy is referred as the rise of a new legal order. The EU is a sui generis entity, it is unique and it differs from the traditional models of national or international law.
The famous case affirming the specificity of EU Law is Van Gend en Loos. Nevertheless, it mainly concerns the principle of direct effect of EU Law, another crucial pillar of EU Law enforceability, and will therefore be more fully discussed in the next Chapter.
General principle: The EU must be regarded as a unique legal order distinct from either national or international Law.
Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62)  ECR 1
Facts: The case was related to the introduction of a Dutch law on taxes, relatively increasing the duty payable and resulting on a loss suffered by the claimant that which claimed an incompatibility with European Law. The importer was charged 8% tax on importation of chemicals from Germany, placing him at a disadvantage over domestic sellers.
Preliminary Ruling: “The Community constitutes a new legal order in international law for whose benefits the states have limited their sovereign rights, albeit within limited fields”.
Application: The EEC Treaty that was at stake in the case was not an ordinary international Treaty because Members agreed to limit their sovereignty rights. Van Gend en Loos does not give a complete definition of supremacy. However, by declaring that the Treaty had established a new legal order in which Member States had limited their sovereign rights, the judgment paved the way for the establishment of this principle of EU law.
General principle: National law cannot override EU law.
Flaminio Costa v ENEL (Case 6/64)  ECR 585
Facts: ENEL was an electric company that has been put under state ownership by the Italian government. Costa, a shared owner of the company before its nationalisation, has suffered a loss attributable to the Italian Government. He argued before its national Courts that the Italian law nationalizing the industry was incompatible with EC monopoly laws. The case was referred to the ECJ. Throughout the procedure, the Italian government claimed that national law should prevail as it was enacted after the law ratifying the EC Treaty.
Preliminary question before the Court: Whether or not a national law, enacted after the law ratifying the founding treaties of the Communities, could contravene to its main objectives?
Preliminary Ruling: The answer of the Court is clearly negative; incompatible domestic provisions cannot override Community law, regardless whether or not they were enacted after the ratification of the founding treaties.
The ECJ based its reasoning on the framework of Van Gend en Loos but extended it: “By creating a Community of limited duration having (…) a transfer of powers from the states to the community, the member states (…) have thus created a body of law which binds both their nationals and themselves”. Thus, according to the Court, the supremacy of EU law logically stems from the Member Stats’ transfer of power that created an independent body of law. Application: This case defines and develops the principle of the supremacy of EU law justifying it by the “special and original” nature its legal order.
A clear conclusion can be made about the inputs of Costa and Van Gend en Loos. The Member States have transfer certain of their sovereign powers to the Community in order to make law that would bind them and their individual. As a result Member States cannot introduce new national laws that would contradict EU Law.
General principle: No provision of national law, of any nature whatsoever, can override EU Law.
Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1970) Case 11/70
Facts: A regulation required the introduction of export licences in respect of certain agricultural products falling under the Common Agricultural Policy (CAP). Another requirement of this regulation involved the transfer of a deposit that would be forfeited if no exportations were realized during the period of the licence, and this is how the applicant suffered a loss. The applicant claimed that this EU regulation was incompatible with the German Constitution for having contravened with the right to run a business freely. The unconstitutionality was acknowledged but the German Court was uncertain about the consequences of such a decision.
Preliminary question before the Court: The German Court used Article 177 to ask the ECJ whether or not national constitutional law prevails over EC law?
Preliminary Ruling: The Court simply replies: “The validity of a Community measure or its effect within a member state cannot be affected by allegations that it runs counter to either fundamental rights, as formulated by the constitution of the state or the principles of a national constitutional structure”.
Application: Internationale Handelsgesellschaft enlarges the scope of the supremacy principle: no provisions of national law, of any nature whatsoever, can override EU Law. In the event of any conflict or inconsistency between any provisions of national law, regardless its nature, and EU law, the domestic courts have an absolute requirement to give effect to EU Law.
General principle: When national law conflicts with EU law, national law should immediately be set aside by national Courts.
Amministrazione delle Finanze v Simmenthal SpA (1978) Case 106/77
Facts: Simmenthal, a company importing beef into Italy from France, was required to pay a tax at the border, which clearly contradicts the EC provisions on freedom of good at the time.
Preliminary question before the Court: After acknowledging the incompatibility, the Italian Court referred the case to the ECJ to know if EU Law had to be applied directly of if it should wait for the traditional constitutional Court procedure to strike it down for incompatibility to higher norms?
Preliminary Ruling: The Court mentions in its Judgement that any EC provision “renders automatically inapplicable every conflicting provision of current national law”.
Application: The effect of EU Law supremacy is immediate, there is no need to wait for national procedures to strike down the impugned law, and it is rendered automatically inapplicable.
General principle: All incompatible domestic law shall be repealed.
Case 167/73, Commission v France (Re French Merchant Seamen)  ECR 359
Facts: A French statutory provision required that certain of crew on French registered merchant ships had to be French. This provision was violating the rules of freedoms of worker under article 45. The French government argued that its domestic Courts were no longer giving effect to this provision and that nothing in the Treaty required repeal.
Preliminary question before the Court: Do Member States have to repeal every out-dated incompatible law, even though their Courts are to giving them effect anymore?
Preliminary Ruling: The mere existence of such provision was creating uncertainty that was unacceptable in the pursuit of harmony.
Application: All previous domestic law that appears incompatible to EU Law, regardless whether or not it is still applied by domestic courts shall be repealed by Member States.
Finally, the supremacy of laws taken at the international level is not a revolution in itself. Actually, it is generally accepted by States in Public International Law (Treaties and Customs prevail over national law). However, the particularity of EU supremacy lies on two points. Firstly, this principle is effectively enforceable in practice. And this is quite rare in the international order that a Court has the courage and the resources to go against the States’ will. Secondly, as it has been mentioned in the case previously presented, the Member States have transferred powers to the Union, so that they can be forced to implement decisions for which they were in disfavour. This is certainly why the supremacy issue is so controversial. Conversely, in Public International Law nothing, except for the exception of the jus cogens, no rules can be imposed on States if they did consent to them.
The impact of supremacy on UK Law
The UK compliance with supremacy was probably the most far-reaching of the EU. Partly because dualist states are generally not designed to integrate international orders implying any sort of supremacy. According to Dicey’s traditional definition of Parliamentary sovereignty, it makes Parliament the supreme legal authority in the UK, which can create or end any law. Generally, the courts cannot overrule its legislation. Parliamentary sovereignty is the most important part of the UK constitution.
However, the CJEU case-law on supremacy requires national Courts to suspend operations, declare as invalid and dis-apply acts of Parliament. This approach is completely opposed to the UK conception of the role of Judges. The United Kingdom being a dualist system allowed EC law to get an automatic incorporation through the European Communities Act 1972(ECA). Section 2(1) of this act particularly conveyed how the UK limited its sovereign rights in favour of the EC. However section 2(4) limited the EU's sovereignty over domestic law by ensuring that all domestic enactments had effect only subject to directly applicable rules of community law. The ECA 1972 had two major consequences on the traditional UK system: overriding the usual presumption that any later enactment overruled prior law inconsistent with it and clearly terminates any effect of acts of Parliament purporting to contradict EU Law. UK judges took the following positions:
E Coomes (Holdings) Ltd v Shields  IRLR 263 CA,
Facts: Miss Shields was employed as a counterhand in the appellants bookmakers' shop in Sussex Street, London, on an hourly rate of 92p, whereas her men colleagues were significantly paid better for the same job. UK law appeared to be incompatible with EU Law.
Question before the Court: In case of conflict between UK and EU Law, which provisions should prevail?
Ratio: Lord Denning stated that “By the 1972 Act, parliament enacted that we should abide by the principle as laid down by the European Court”.
English judges have not always reacted in this manner and there has inevitably been a controversy that arose from the case Mcarthys v Smith.
Macarthys Ltd v Smith (No.2)  EWCA Civ 7 (17 April 1980)
Facts: This case involved a claim about equal pay based on EC Law that appeared to be contradicting with the Westminster’s Equal Pay Act 1970.
Question before the Court: In case of conflict between UK and EU Law, which provisions should prevail?
Ratio: Lord Denning adopted a constructive approach that was contradicting EU supremacy, he says “If the time should come when our Parliament deliberately passes an Act with the intention of repudiating the Treaty or any provision in it or intentionally of acting inconsistently with it and says so in express terms then I should have thought it would be the duty of our courts to follow the stature of our Parliament.” Justice Cumming-Bruce in his dissenting judgement took position of EU supremacy.
Garland v British Rail Engineering Ltd.  2 WLR 918
Facts: There was a dispute between an employee and her company, another case relating to equal pay. The employee claiming discrimination alleged to be suffered by female employees who on retirement no longer continue to enjoy travel facilities for their spouses and dependent children although male employees continue to do so.
Question before the Court: Should the construction approach be applied when Parliament deliberately passes an Act with the intention to act inconsistently with EU Law?
Ration: Lord Denning's construction approach was applied in this case and EU Law has been set aside. This gave rise to a significant controversy as being incompatible with Van Gend en Loos (1963).
General principle: UK constructive approach is overruled and the supremacy of EU Law reaffirmed.
R (Factortame Ltd) v Secretary of State for Transport (Case C-213/89) 1990 ECR 1-2433
Facts: The case involved companies registered in the UK but mainly owned by Spanish nationals. The Merchant Shipping Act 1988 required a certain percentage of UK national ownership for the registration of a vessel. This provision expressly violated the “non-discrimination on nationality” principle of Article 12. The Divisional Court granted an interim relief suspending the operation of the impugned law. The House of Lords then made a reference to the ECJ arguing than nothing neither in the UK Constitution nor in EC Law permitted such interim.
Preliminary question before the Court: Does the incompatibility of an act of Parliament, enacted after accession to the Treaties and expressly introducing inconsistencies to EC Law, permits judges to suspend the legal effect of the domestic provision?
Preliminary Ruling: The Court firmly recalls that any act of Parliament, even enacted after the accession Treaties, that would be inconsistent with EU Law cannot override it.
In addition to this, national Courts being confronted to inconsistencies or incompatibilities with EU Law are required to do everything necessary to set aside the impugned law.
Application: The UK constructive approach is overruled and the supremacy of EU Law is affirmed. There is now an external body competent to make laws affecting the United Kingdom, which are applied by the English Courts irrespective of the wishes of Parliament.
This brought about academic debate on the concept of parliamentary sovereignty. Authors such as Wade stated that the fact of dis-applying an act of Parliament for an allegedly incompatibility with a superior source meant that “something drastic had happened to the traditional doctrine of parliamentary sovereignty”. He claimed that this was revolutionary on the grounds that the Courts were no longer prepared to uphold absolute parliamentary sovereignty. Alternatively Craig and De Burca argued that sovereignty remained intact. Parliament itself voluntarily decided to set the limits of its sovereignty. The ECJ just used the competence it has been attributed by the Member States. On the other hand McCormick argued that in the modern world it was no longer realistic to speak in terms of absolute sovereignty due to the inter-dependence of economies.
However many English Lawyers, did not accept the European Court’s view. They contended that European law overruled English domestic law only because parliament had chosen to make it so, and that parliament could change its mind at any time. A balance is thus preserved between the supremacy of EU law in matters of substantive law, and the proper supremacy of the UK parliament in establishing the legal framework within which EU law operates. The recent events that led the UK to trigger article 50 TFEU support this last argument. Brexit has shown that the UK Parliament voluntarily transferred some powers to the Union and was entitled to take them back at any time.
Another act is finally enacted in 2011, The European Union Act, by the coalition government that makes a number of statutory qualification about the future relationship between the EU and the UK. A very interesting provision related to the issue of supremacy can be found in section 18 of the act. The latter subjects the UK membership to the continuing will of Parliament. A simple act of Parliament is all that is needed to exit from the EU.
The impact of supremacy on other Member States
In France, accepting EU supremacy did not raise such controversies. It can certainly be explained by the fact that it has a monist approach of international Law. At quite an early stage, the Court of Cassation in the case Von Kempis v Geldof (1976) 2 CMLR 462, acknowledged the recent CJEU case law in declaring that EU Law takes precedence over French legislation.
However, the UK is not the only country to presented difficulties with supremacy in their national jurisdiction. It was also the case in other European Union member states such as Germany and Poland. For example in Germany, the reluctance to accept supremacy was based on a fear of potential violation of Human Rights contained in the German Constitution.
Solange I judgment,German Constitutional Court (BVerfGE 37, 271)  2 CMLR 540
Facts: The case involved an A German import/export company for which an export deposit of DM17,026.47 was declared to be forfeited after the firm had only partially used an export licence gran-ted to it for 20,000tons of ground maize.
Preliminary Ruling: The German Constitutional Court complained about the legal uncertainty left by the lack of a codified catalogue of fundamental rights and held that the fundamental rights guaranteed under the West German constitution would prevail over EEC law for so long as this situation continued.
The German Constitutional Court finally abdicated in the case Wunsche Hendelsgesellchaft (1987) 3 CMLR 225 provided that the EU Law could guarantee as least an equivalent protection. On the issue of sovereignty, the German Constitutional Court always maintained a stable position: Germany remains the only sovereign. In the case Brunner v The European Treaty(1994) 1 CMLR 57, the Court states: “Germany is one of the ‘Masters of the Treaties’ … Germany thus preserves the quality of a sovereign state in its own right”.