← The hardest concepts in European Union law
In one breath
Where a rule of Union law conflicts with a rule of national law, the Court of Justice holds that the Union rule prevails and that national courts must set the national rule aside in the case before them. Some national constitutional courts accept this with reservations of their own, so supremacy is declared by the Court of Justice but its limits are still debated.
The picture
The league rulebook and the club charter
A local football club joins a league. The league rulebook says that where a club’s own rules clash with it, the league rule wins, and every referee must apply the rulebook even if the club’s bylaws say otherwise. If referees could pick the club’s bylaws whenever they preferred, there would be no league at all, because the rules would differ from pitch to pitch.
Yet the club has a founding charter, and some clubs say there are things the charter forbids the club ever to give up, however the league wording runs. The league insists that its rulebook beats everything. The club insists on its charter’s core. Both sides keep playing in the meantime. That is the position of supremacy: the Court of Justice states an unconditional primacy of Union law, and national constitutional courts, in different ways, keep a final word on their own constitutions.
Where the picture stops working
The league is a private association with no pitch of its own to police. The Union has no police force and depends on national courts and authorities to carry out its rulings. The picture also leaves out that supremacy does not make the national rule void: it is only put aside in the case at hand, and national law may remain on the books. And clubs differ widely: some constitutional courts have never claimed a reserved zone.
How it really works
- 1Know where the rule comes from. The Treaties contain no express supremacy clause. The principle comes from the Court’s case law, and a declaration annexed to the Lisbon Treaty recalls it.
- 2State the Court’s position: Union law, as an independent source of law, cannot be overridden by domestic legal provisions, whatever their rank, including national constitutional rules (Costa v ENEL; Internationale Handelsgesellschaft).
- 3Identify the duty on national courts: a national court asked to apply Union law must give it full effect, setting aside any conflicting national provision of its own motion, without waiting for the legislature or a constitutional court to act (Simmenthal).
- 4Note the effect: the national rule is disapplied in the case, not annulled. Where the rule is incompatible, the State must still repeal or amend it.
- 5Note the national response. Courts in several Member States have accepted supremacy but reserved a possible review of Union acts for protection of fundamental rights (the German Solange decisions), for acts exceeding the Union’s powers, or for the national constitutional identity.
Why people get it wrong
- Saying that Union law is higher than national constitutions in every national court’s view. The Court of Justice says so; some constitutional courts hold a more qualified view.
- Supposing that a conflicting national law becomes invalid. It is set aside in the case, and the State remains bound to bring its law into line.
- Assuming that supremacy is written in the Treaties. It is a creation of case law.
- Treating supremacy as about hierarchy of statutes only. It extends to national constitutional provisions.
- Forgetting that supremacy works only within the Union’s powers. A Union act outside those powers is open to challenge.
A worked example
The facts are invented
Suppose a national statute says that a fishing boat may be registered only if its owner is a national of the State. A foreign owner, Ruben, is refused registration and sues. He argues that the statute breaches the Treaty rule against discrimination on grounds of nationality. The Treaty provision is clear and directly effective, and the statute contradicts it.
The national court must not wait for parliament to repeal the statute or for a constitutional court to rule on it. It must set the statute aside in Ruben’s case and apply the Treaty. If it needs interim protection for Ruben before the main case is decided, it must grant it even if national rules say otherwise, as in Factortame. The statute remains in the code until parliament acts, but it can no longer be used against Ruben.
Try it
A national court finds that a statute conflicts with a directly effective Treaty provision. According to the Court of Justice, what must the court do?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Costa v ENEL, Case 6/64, 1964
- Internationale Handelsgesellschaft, Case 11/70, 1970
- Amministrazione delle Finanze dello Stato v Simmenthal, Case 106/77, 1978
- R v Secretary of State for Transport, ex parte Factortame (No 2), Case C-213/89, 1990
- Solange II decision of the German Federal Constitutional Court, BVerfGE 73, 339 (1986)
Where to go next
More hard concepts in European Union law
- Direct effect (Union law in national courts)
- Vertical and horizontal effect of directives (Union law in national courts)
- Indirect effect and conforming interpretation (Union law in national courts)
- State liability for breach of Union law (Union law in national courts)
- Effectiveness, equivalence and national procedural autonomy (Union law in national courts)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. EU law is made by the Union’s institutions under powers that the Member States have conferred on it in the Treaties, and it is applied by national courts and the Court of Justice together. The national law of each Member State still governs most of private and criminal law. Each page says whether the idea comes from the Treaties, from regulations and directives, or from the Court of Justice’s case law. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources, and the law of your own Member State, before relying on any rule.