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The pressures which led to the emergence of the principle of
supremacy of EU Law the tensions which this (the principle of
supremacy) has given rise to.
*AKINOLA SAMUEL ELUYEFA
In order to be able to understand the question at hand, it would be of importance to define the
notion EU law supremacy. Eu law supremacy refers to the concept by which EU law takes
precedence over conflicting national laws, thus in the event that any national law comes into
conflict with EU law; in the words of Simon Busutill national courts are bound to give
immediate and automatic precedence to EU law by setting aside the conflicting national law
provisions.1
Therefore, the essay aims to critically discuss to what extent the pressures which led to the
emergence of the principle of supremacy such as the attempt of the European court of justice to
define the relationship between European community Laws and member states national laws,
and the impact which this particular principle in question had given rise to.
Firstly with regards to the first main case law which sought to establish the impact of member
states joining the European community, In Van Gend Loss 2
where as a result of the Dutch
government reclassifying certain import duties Van Gend objected to paying the increase as he
argued the reclassification in fact contravened now article 30 which then was known as a
1
The Supremacy of EU law: What it means & What it entails by Dr Simon Busuttil
2
Van Gend En Loos (case 26/62) [1963] CMLR 105

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standstill article requiring that there should be no increase on existing duties and no introduction
of new duties during the transitional period.
The Dutch court posed a question to the European court as to whether article 30 was capable of
creating rights in favour of individuals which a national court was bound to protect. The
European court of justice held article 30 was directly effective thus creating individual rights
which national courts must protect, in other words treaty provisions can be invoked against a
member state, and in other words they can have a vertical direct effect.
In Van Gen Loss, it was held a treaty may produce a direct effect if it is clear, unconditional in
the sense of not allowing for any reservations on the part of the member states, and not
dependent on any subsequent further implementation measures to be adopted by the member
states or the community.
In Costa v Enel3 where as a result of the Italian government nationalizing both the production
and distribution of electricity, Costa a lawyer by trade argued the law nationalizing the industry
was unlawful as it contravened EC monopoly laws at the time. The European court of justice
repeated its line in Van gend that the EC treaty has created its own legal system which on entry
into force of the treaty became an integral part of the legal system of the member states, and
which their courts are bound to apply.
Subsequently in Simmenthal4
where Simmental imported beef from France, of which
subsequently as a result of an Italian law introduced in 1970, he was bound to pay for an
inspection of the goods at the frontier. This law it was argued was inconsistent with not only with
3
Case 6/64, Flaminio Costa v ENEL [1964] ECR 585, CMLR 425,593
4
Case 106/77Amministrazione delle Finanze v Simmenthal SpA [1978] ECR 629

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the requirements now article 34, but the 1964 and 1968 regulations. Thus, the Italian court made
a reference to the ECJ on the question of whether it must follow the EC law or should wait for
the provision of Italian law to be annulled by the Italian constitutional court through the usual
state procedure.
The courts in Simmenthal held “it follows that every national court must in a case within its
jurisdiction apply community law in its entirety and protect rights which the latter confers on
individuals and must accordingly set aside any provisions of national law which may conflict it,
whether prior or subsequent to the community rule”. In the words of Simon Bustill not only does
Simmenthal further establish that by entry into force of Community law automatically renders
inapplicable any conflicting national law, Thus every national court must give direct and
immediate effect to such Community provision without requesting or awaiting the prior setting
aside of such provision by a legislative or other constitutional means.5
Therefore in an attempt to answer the essay question at hand, it could be with regards to the
relationship between the European community and that of the member states, EU law had always
been given komptence over national laws thus gaining supremacy over national laws. The impact
of the tensions which it does create being a severe limitation on the sovereignty of the member
state in question as its ability to make laws is subject to whether or not they are in accordance
with EU law.
This line of thought as explained above is further seen in evidence in the House of commons
research findings of which it also did acknowledge by agreeing to EU membership, it also
5
The Supremacy of EU law: What it means & What it entails by Dr Simon Busuttil Page 12

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agrees to “some loss of autonomy” and therefore it would be appropriate given the state of
development of international law, that there should be the possibility at least in liberal
democracies, of placing legal limits on the effect of a norm or an act under international law
within the domestic legal order if it severely conflicts with constitutional principles.6
This would
limit the impact of EU law supremacy on member states, as it could be argued member states
would have some control over the area of law which comes into conflict with EU law.
Subsequently in Brunner v European Union Treaty 7
where the applicant challenged the
constitutional legitimacy of the German state signing the treaty as to joining the European union,
The German constitutional court disagreed and upheld the validity of German membership of
new treaty, however the judges passed a comment on the relationship between the German state
and the EU“the validity and application of European law depends on the application of law
instruction of the Accession Act. Germany thus preserves the quality of a sovereign state in its
own right.”
In Solange I, 8
where a German court had doubted whether EU legislation could violate
fundamental rights granted by the German constitution and therefore raised this very question
with the ECJ as to whether the fundamental principles of national constitutions including
human rights was beyond the scope of EU supremacy. The court disagreed, as it held the validity
of EU law could never be affected by national law even by the most fundamental norms within
the member state as the ‘law stemming from the Treaty, an independent source of law cannot
6
Vaughne Miller and Jon Lunn,‘The European Union: A Democratic Institution?’ [2014] Research Paper 14/25 20
– 21.
7
CMLR [1994] 57
8
Case 11/70 Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und
Futtermittel (1970) ECR 1125

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because of its very nature be overridden by rules of national law however framed, without being
deprived of its character as Community law and without the legal basis of the Community itself
being called in question’9
Subsequently it further did state that human rights were also an implicit part of the Community
structure: thus, respect for fundamental rights forms an integral part of the general principles of
law protected by the Court of Justice, the protection of such rights, whilst inspired by the
constitutional traditions common to the Member States, must be ensured within the framework of
the structure and objectives of the Community. 10
In Solange II, 11 where an EC import licensing system was challenged in the German Court, but
held valid by the EC, the BVerfGE revised its approach. It held that because, since 1974, the ECJ
had developed protection for fundamental rights, declarations on rights and democracy had been
made by the Community institutions, and all EC Member States had acceded to the European
Convention on Human Rights, it would no longer scrutinize EU law in every case. In other
words JA Frowen argues so long as the EC generally ensured effective protection of fundamental
rights, which was to be regarded as substantially similar to the protection of fundamental rights
required unconditionally by the German Constitution, the Federal Constitutional Court would no
longer review Community legislation by the standard of the fundamental rights contained in the
Constitution.12
On the other hand, with regards to the issue above, the academic commentator Müller draws
attention to the lack of a catalogue of fundamental rights in the EEC, and to the correspondingly
9
Ibid [para.3]
10
Ibid [para.4]
11
Re Wünsche Handelsgesellschaft (22 October 1986) BVerfGE, [1987] 3 CMLR 225
12
J. Frowein, “Solange II” (1988) 25 Common Market Law Review 201

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precarious arrangements for the protection of fundamental rights in European integration law.
Referring to the German discussion, he asserted that, having regard to this deficiency, For
instance in comparison to the Swedish constitutional courts, Swiss doctrine and practice was
adjusted to reach a clear definition of ‘that inalienable minimum standard in human rights
consonant with the rule of law’ which from a Swiss and European view of the law, was not a
matter for the national or the supra-national legislator. It should therefore be up to the Swiss
Federal Court or any other member state court to deny the application of EEC or EEA laws
which are unconstitutional under Swiss or the affected member state law.13
However in its Maastricht judgment in Brunner v The European Union Treaty, 14
of which it
ruled on the constitutional relationship between European Community law and German law
when the constitutionality of the state ratification of the treaty on European Union was
challenged. it was held not only was ratification compatible with the constitution, it was also
of the opinion that it would not relinquish its power to decide on the compability of community
law with the fundamentals of the German constitution and that it would continue to exercise a
power of review over the scope of community competence. In addition, in the course of its
decision, the court stated that if European institutions or agencies were to treat or develop the
Union Treaty in a way that was no longer covered by the Treaty in the form that is the basis for
the Act of Accession, the resultant legislative instruments would not be legally binding within
the sphere of German sovereignty.15
13
Müller, ‘Grundrechts- und Demokratiedefizite als Legitimitätsprobleme der EG – Überlegungen zu einem Beitritt
der Schweiz’, Zeitschrift für schweizerisches Recht (ZSR), Vol. I (1990) 109
14
[1994] 1CMLR
15
Ibid [Para 49]

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Therefore in an attempt to answer the problem question at hand, it could be argued from the
evidence as discussed above, the supremacy of Community law was always felt to pose
particular problems for a member state such as the UK.
However, in the words of Paul Craig the opposite has been felt as the UK has always adopted a
dualist view about the relationship between international treaties and national law. Therefore
when such treaties although signed and ratified by the United Kingdom, they are not part of the
domestic law of the United Kingdom to be enforceable at the domestic level as they must have
been domestically incorporated in an act of Parliament. This then makes it very difficult to
guarantee the supremacy of Community law over later national statute, since the act of
Parliament which incorporates EC law and makes it domestically binding would seem vulnerable
to any later Act of Parliament which contravenes or contradicts it.16
Subsequently, on an evaluative note in an attempt to contrast and compare the argument for as to
what extent the effect of which EU law supremacy as had over national law, it could be argued
its effect can appear to be minimal as in the worst turn of events any affected member state for
instance can always withdraw from the EU. In the UK, the European Communities Act 1972
which incorporated EC law in domestic law can be repealed whenever the need parliament
seems fit.
Moreover, as Andrew Mitchell sought to explain, the European Communities Act 1972 statute is
entrenched as a matter of ‘political reality as a result of the UK’s status as a Member State,
16
Paul Craig, ‘The ECJ National Courts and the Supremacy Of Community Law’ 39 – 40.

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therefore English law is subject to the laws of the institutions of the European Union and the
UK being a participant in its recipient of the corresponding social, economic and political
policies. 17
Therefore, there is little doubt that since 1 January 1973, parliamentary sovereignty has been
limited by membership of the European Union and the impact of European Community law, a
point underlined by the furious debates that have taken place in the UK – and other Member
States. 18
Those debates outlined above it could be argued can be seen in wake of the EU referendum with
regards to Britain membership of the European Union. In particular the lifting of the collective
responsibility veil by the prime minister so as to allow for individual ministers to take a different
personal position while remaining part of a government, critics would argue be of great benefit
to the Eurosceptics who have been campaigning for Britain to leave and relinquish its
membership status of being in the EU. 19
17
Andrew Mitchell, AS Law (3rd edn, Routledge Cavendish 2008). 27-28
18
Ibid
19
Laura Hughes, ‘EU Referendum: David Cameron Forced to Let Ministers Campaign for Brexit after Fears of a
Cabinet Resignation’The Telegraph (5 January 2016)
<http://www.telegraph.co.uk/news/newstopics/eureferendum/12082083/EU-referendum-David-Cameron-gives-
ministers-free-vote.html>

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On the other hand, it is very unlikely Britain votes to leave the European union as regardless of
the constraint of European union law on the UK sovereignty, Britain does and has derived so
many benefits from being part of the EU, and therefore risks losing out in commercial terms if it
does decide to leave the trading bloc, as for instance one of the biggest advantages being part of
the EU is free trade between member nations, making it easier and cheaper for British companies
to export their goods to Europe.20
In conclusion, from the facts as explored above, EU law supremacy had always had an impact on
member states particularly as to the member states constitutional sovereignty to make laws
which govern it. Therefore for these reasons, the principle of EU law supremacy which arose as
a result of the European union willingness to offer more individual rights to the subjects within
its union, has created an immense tension by its laws reigning supreme over member states
national made laws.
*Final Year LLB Student
20
‘EU Referendum’ (13 May 2013) <http://www.theweek.co.uk/eu-referendum>

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Bibliography
Craig P, ‘THE ECJ, National Courts and The Supremacy of Community law’
Miller VM and Lunn J, ‘The European Union: A Democratic Institution?’ [2014] Research Paper 14/25
‘EU Referendum’ (13 May 2013) http://www.theweek.co.uk/eu-referendum
Mitchell A, AS Law (3rd edn, Routledge Cavendish 2008)
Craig PP and De Burca G, EU Law: Text, Cases, and Materials (Oxford University Press 2015)
The Supremacy of EU law: What it means & What it entails by Dr Simon Busuttil