Part II European Law: Enforcement

6. (Legal) Primacy  


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


Sincere 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, courts need to know how these conflicts are to be resolved. The resolution of legislative conflicts here 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 centralized 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. Each federal order must thus determine which law prevails. The simplest primacy format is one that is absolute: all law from one legal order is superior to all law from the other. Absolute primacy 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.

When the Union was born, the European Treaties did not expressly mention the primacy (or ‘supremacy’) of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a Union doctrine of primacy? We shall see in this chapter that there are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. National challenges to the absolute primacy of European law are thereby traditionally expressed in two contexts. First, some Member States—in particular their supreme courts—have fought a battle over human rights within the Union legal order. They claim that European law cannot violate national fundamental rights. The most famous battle over the primacy of European law in this context was the conflict between the European Court of Justice and the German Constitutional Court. A similar contestation occurred in a second context: ultra vires control. In denying the Union an unlimited competence to determine the scope of its own competences, Member States here insisted that they have the last word with regard to the competence limits of the Union.

This chapter analyses the primacy doctrine within the Union legal order in four steps. We shall start with the European doctrine of absolute primacy in Section 1, before looking at the effect of the principle on national law in Section 2. The subsequent sections, by contrast, analyse the national perspective on the primacy principle in the form of two challenges to the primacy of European law.

Section 3 explores the national claim asserting the relative primacy of European law in the context of fundamental human rights. Section 4 extends this analysis to the contested question of who is the ultimate arbiter of the scope of the Union competences.

*All footnotes have been omitted for this excerpt.