The Supremacy (sometimes referred to as the primacy) of European Union law is a principle of by which the laws of European Union member states that conflict with laws of the European Union must be ignored by national courts so that the European Union law can take effect. The legal doctrine emerged from the European Court of Justice through a number of decisions.
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In Costa v. ENEL.[1] Mr Costa was an Italian citizen opposed to nationalising energy. Because he had shares in a private corporation subsumed by the nationalised company, ENEL, he refused to pay his electricity bill in protest. In the subsequent suit brought to Italian courts by ENEL, he argued that nationalisation infringed EC law on the State distorting the market,[2] The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make. The Court ruled in favour of the government, because the relevant Treaty rule on an undistorted market was one on which the Commission alone could challenge the Italian government. As an individual, Mr Costa had no standing to challenge the decision, because that Treaty provision had no direct effect.[3] But on the logically prior issue of Mr Costa's ability to raise a point of EC law against a national government in legal proceeding before the courts in that Member State the ECJ disagreed with the Italian government. It ruled that EC law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EC law.
It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.[4]
Many countries' highest courts have stated that Community law takes precedence provided that it continues to respect fundamental constitutional principles of the Member State, the ultimate judge of which will be the Member State (more exactly, the court of that Member State), rather than the European Union institutions themselves[5] This reflects the idea that Member States remain the "Master of the Treaties", and the basis for EU law's effect. In other cases, countries write the precedence of Community law into their constitutions. For example, the Constitution of Ireland contains a clause that, '"No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities..."
Article I-6 of the European Constitution stated that "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." However, the constitution was never ratified but its replacement, the Treaty of Lisbon did include the following declaration attached at the end;
17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
‘Opinion of the Council Legal Service
of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL,15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
(1) “It follows (...) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”’
Depending on the constitutional tradition of member states, different solutions have been developed to adapt questions of incompatibility between national law and EU law to one another. Community law is accepted as taking precedence to the law of Member States, but not all Member States share the analysis used by the European institutions about why EU law overrides national law, when a conflict appears.
A constitutional amendment to Article 29 establishes the supremacy of Community law in Ireland. Article 29 endeavours to reconcile Community and Irish law by authorising enactments of laws and adoption of measures which are necessitated by Community membership.
In Crotty v. An Taoiseach the court held Ireland could not ratify the Single European Act without a constitutional amendment as it would alter sovereignty regarding foreign affairs enshrined in Article 1 and 5. As amendments could fall outside of the mandate given at the time of accession, Ireland has held constitutional referendums for every new treaty since.
In Meagher v Min of Agriculture, the court held the use of statutory instruments to transpose directives was necessary under Article 29, but the court indicated certain circumstances would require an act of the Oireachtas. The SC re-examined the issue in Maher v Min of Agriculture. Keane CJ held that the Oireachtas could delegate legislative power to the executive in cases where a statutory instrument merely transposed EC legislation into Irish law, but where discretion of how EC legislation was implemented exists, such a delegation is unconstitutional.
Conflict between the Irish Constitution and supremacy of EC law was seen in SPUC v Grogan. SPUC had been granted and injunction preventing the distribution of abortion information by the defendant. The case was referred to the ECJ. Although it was held provision of abortion services fell under Article 50, the students were receiving no remuneration so their actions fell outside the scope of the treaty.
  | ''Falminio Costa v. ENEL'' - EUR-Lex - 61964J0006 - EN |
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