Part II European Law: Enforcement

(Legal) Supremacy  


1.    The European Perspective: Absolute Supremacy
2.    Supremacy’s “Executive” Nature: Disapplication, not Invalidation
3.    National Challenges I: Fundamental Rights
4.    National Challenges II: Competence Limits



Since European law is directly applicable in the Member States, it must be recognised alongside national law by national authorities. And since European law may have direct effect, it might come into conflict with national law in a specific situation.

Where two legislative wills come into conflict, each legal order must determine how these conflicts are to be resolved. The resolution of legislative conflicts requires a hierarchy of norms. Modern federal States typically resolve conflicts between federal and state legislation in favour of the former: federal law is supreme over State law. This “centralised solution” has become so engrained in our constitutional mentalities that we tend to forget that the “decentralized solution” is also possible: local law may reign supreme over central law. Supremacy and direct effect are thus not different sides of the same coin. While the supremacy of a norm implies its direct effect, the direct effect of a norm will not imply its supremacy. Each federal legal order must thus determine which law prevails. The simplest supremacy format is one that is absolute: all law from one legal order is superior to all law from the other. Absolute supremacy may however be given to the legal system of the smaller or the bigger political community. Between these two extremes lies a range of possible nuances.

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