National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member States

Abstract

The principle of primacy of the EU law has been in force for almost 50 years and belongs to the fundamental principles of EU law. It signifies that in case of a conflict between EU law and the law of the Member States, the EU law prevails. Its fundamental goal is to assure a unified and effective application of EU law in all Member States. The principle of primacy has been established by the case law of the Court of Justice of the European Union. This article discusses the principle of primacy, as developed by the Court of Justice of the European Union, and focuses on its importance for the Member States. The legal theory divides Member States into three groups with regard to what their position on the primacy of EU law in relation to the national constitution is: Member States that acknowledge full primacy, Member States that acknowledge limited primacy of EU law in relation to the national constitution, and Member States that principally assume primacy of the national constitution over EU law. Within the context of the European hierarchy, the constitutional courts of the Member States are left with the central role and power of review of constitutionality, but it remains to be seen whether in future more constitutional courts will enter a dialogue with the Court of Justice of the European Union in the form of a preliminary ruling procedure

Factortame Revisited and the Constitution Reimagined: The UK Supreme Court Takes Its First Ride on the HS2 Rail-Line

“…68 This argument touches upon a long-standing debate between the CJEU and senior appellate courts within its member states concerning who has the power to determine the limits and boundaries of the EU legal order. 69 Whilst in Factortame (No 2), Lord Bridge took a relatively docile approach to this issue, in essence deferring to the CJEU, 70 the Court in HS2 was conversely far clearer that future disputes of this kind must now be determined by reference to a domestic law perspective. As Lord Reed thus notes, the case cannot`be resolved simply by applying the doctrine developed by the Court of Justice of the supremacy of EU law, since the application of that doctrine in our law itself depends upon the [European Communities Act 1972].'…”

“…9 Ibid [681]-[844] (Ouseley J). 10 Ibid [69] fundamental principle' 17 such a conflict must instead`be resolved by our courts as an issue arising under the constitutional law of the United Kingdom' 18 and that there`may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, of which Parliament when it enacted the European Communities Act 1972 did not either contemplate or authorise the abrogation' 19 conversely suggests a more nuanced, realistic and altogether more satisfactory analysis of both these specific issues and of the constitutional relationship between the two bodies more generally.…”