The primacy of European Union law (sometimes referred to as supremacy or precedence of European law) is a legal principle of rule according to higher law establishing precedence of European Union law over conflicting national laws of EU member states.
The principle was derived from an interpretation of the European Court of Justice, which ruled that European law has priority over any contravening national law, including the constitution of a member state itself. For the European Court of Justice, national courts and public officials must disapply a national norm that they consider not to be compliant with the EU law.
Some countries provide that if national and EU law contradict, courts and public officials are required to suspend the application of the national law, bring the question to the national constitutional court and wait until its decision is made. If the norm has been declared to be constitutional, they are automatically obliged to apply the national law. This can create a contradiction between the national constitutional court and the European Court of Justice, like on 7 October 2021 when the Polish Constitutional Tribunal issued a judgment in case K 3/21 challenging the primacy of EU law in certain areas of the Polish legal order.
Development In Costa v. ENEL,Case 6/64, Flaminio Costa v. ENEL ECR 585, 593 Flaminio Costa was an Italian citizen opposed to the nationalisation of energy companies. 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 EU law on the state distorting the market.now found in Art. 86 and Art. 87 The Italian government believed that not to be an issue that even could be complained about by a private individual since it was a decision to make by a national law. The ECJ 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, Costa had no standing to challenge the decision, because that treaty provision had no direct effect."But this obligation does not give individuals the right to allege, within the framework of community law... either failure by the state concerned to fulfil any of its obligations or breach of duty on the part of the commission." But on the prior issue of Costa's ability to raise a point of EU law against a national government in legal proceedings before the courts in that member state the ECJ disagreed with the Italian government. It ruled that EU law would not be effective if Costa could not challenge national law on the basis of its alleged incompatibility with EU 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.Case 6/64, Flaminio Costa v. ENEL ECR 585, 593
In other cases, state legislatures write the precedence of EU law into their constitutions. For example, the Constitution of Ireland contains this clause: "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". C-106/77, Simmenthal ECR 629, duty to set aside provisions of national law that are incompatible with Union law. C-106/89 Marleasing ECR I-7321, national law must be interpreted and applied, if possible, to avoid a conflict with a Community rule.
Article I-6 of the European Constitution stated: "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". The proposed constitution was never ratified, after being rejected in referendums in France and the Netherlands in 2005. Its replacement, the Treaty of Lisbon, did not include the article on primacy but instead included the following declaration:
Exceptions The majority of national courts have generally recognized and accepted this principle, except for the part where European law outranks a member state's constitution. As a result, national constitutional courts have also reserved the right to review the conformity of EU law with national constitutional law.
In 2003 the European Court of Justice ruled in one case that the national security of member states can to some extent overrule EU laws.
Particular countries Depending on the constitutional tradition of member states, different solutions have been developed to adapt questions of incompatibility between State law and Union law to one another. EU law is accepted as having supremacy over the law of member states, but not all member states share the ECJ's analysis on why EU law takes precedence over state law if there is a conflict.
Belgium In its ruling of 27 May 1971, often nicknamed the "Franco-Suisse Le Ski ruling" or "Cheese Spread ruling" (), the Belgian Court of Cassation ruled that self-executing treaties prevail over national law, and even over the Belgian Constitution.
In 2016, the Belgian Constitutional Court ruled that there is a limit to the primacy of EU law over the Belgian Constitution. Mimicking the Identitätsvorbehalt jurisprudence of the German Constitutional Court, it ruled that the core of Belgium's constitutional identity cannot be trumped by EU law.
Czech Republic Article 10 of the Constitution of the Czech Republic states that every international treaty ratified by the Parliament of the Czech Republic is part of the Czech legislative order and takes precedence over all other laws.
France Like many other countries within the civil law legal tradition, France's judicial system is divided between ordinary and administrative courts. The ordinary courts accepted the supremacy of EU law in 1975, but the administrative courts accepted the doctrine only in 1990. The supreme administrative court, the Council of State, had held that as the administrative courts had no power of judicial review over legislation enacted by the French Parliament, they could not find that national legislation was incompatible with Union law or give it precedence over a conflicting State law. That was in contrast to the supreme ordinary court, the Court of Cassation; in the case of Administration des Douanes v Société 'Cafes Jacques Vabre' et SARL Wiegel et Cie, 2 CMLR 336. it ruled that precedence should be given to Union law over State law in line with the requirements of the Article 55 of the French Constitution, which accorded supremacy to ratified international treaty over State law. The administrative courts finally changed their position in the case of Raoul Georges Nicolo 1 CMLR 173. by deciding to follow the reasoning used by the Cour de cassation.
Germany In its Solange I decision (1970), Germany's Federal Constitutional Court articulated constitutional limits on Germany's integration into the European Union. The Court expressed concern that Europe lacked either a “democratically legitimate parliament directly elected by general suffrage” or a “codified catalogue of fundamental rights.” Consequently, it argued that independent review was necessary to ensure that the unamendable protections of German Basic Law are upheld.
In response, the European Parliament, Council, and Commission issued a joint declaration emphasizing the “prime importance” of fundamental rights, as derived from both member states’ constitutions and the European Convention on Human Rights in 1977. Noting this development in Solange II,Re Wuensche Handelsgesellschaft, BVerfG decision of 22 October 1986 3 CMLR 225,265). (1986) the German Constitutional Court held that so long as () EU law had a level of protection of fundamental rights that is substantially in concurrence with the protections afforded by the German constitution, it would no longer review specific EU acts in light of that constitution.
The Solange cases engendered a “cooperative relationship” between the Federal Constitutional Court and the ECJ. This amicable rivalry greatly influenced the latter court's jurisprudence, and has been recently reanimated in light of financial disputes in Gauweiler and Others v Deutscher Bundestag (2015).
Ireland The Third Amendment of the Constitution of Ireland explicitly provided for the supremacy of EU law in Ireland by providing that no other provision of the Irish constitution could invalidate laws enacted if they were necessitated by membership of the European Communities. In Crotty v. An Taoiseach, the Irish Supreme Court held that the ratification of the Single European Act by Ireland was not necessitated by membership of the European Communities and so could be subject to review by the courts.
Italy In Frontini v. Ministero delle Finanze (1974), 2 CMLR 372. the plaintiff sought to have a national law disregarded without having to wait for the Italian Constitutional Court do so. The ECJ ruled that every State's supreme court must apply Union law in its entirety.
Lithuania The Lithuanian Constitutional Court concluded on 14 March 2006 in case no. 17/02-24/02-06/03-22/04, § 9.4 in Chapter III, that EU law has supremacy over ordinary legal acts of the Lithuanian Parliament but not over the Lithuanian constitution. If the Constitutional Court finds EU law to be contrary to the constitution, the former law loses its direct effect and shall remain inapplicable.
Malta Article 65 of the Maltese constitution provides that all laws made by Parliament must be consistent with EU law and Malta's obligations deriving from its Treaty of Accession.
Netherlands The Constitution of the Kingdom of the Netherlands functions as a codification of political practice rather than a normative collection of robust guarantees. As in the United Kingdom, the legislature has broad authority to define constitutional law as well as limits on the protection of rights. The Constitution enshrines neither an absolute right to a fair trial, life, or property, and it provides few guidelines for the formation of governments. Moreover, judicial review of the constitutionality of parliamentary acts was prohibited in 1848.
Nevertheless, EU integration has been a relatively seamless process due to the Netherlands’ monist legal order, which considers international law on par with national law even absent any implementing statute. Treaty review powers have consequently expanded the authority of Dutch courts significantly, with the EU's Charter of Fundamental Rights serving as a de facto judicially-enforceable bill of rights. The Netherlands ensures that its judges are informed of EU law by offering relevant courses through the Training and Study Centre for the Judiciary, and by providing each court with an expert Coordinator for European Law responsible for offering guidance on practical legal applications.
Poland
While Poland rejects the idea of Primacy of European Union law as defined in case law on basis of the ruling K 18/04 of The Constitutional Tribunal it follows article 91. sec 3. of Constitution which gives international organization ability to formulate law that can overwrite Polish statutes. The law has priority in conflict with the statutes if the law is concurrent to the text of the treaty that constitutes that international organization. The ratified international agreement also overwrites the statutes if the statute is impossible to reconcile with the agreement on basis of article 91. sec 2.