Primacy of European Law

Primacy of European Law

Primacy of Union Law Over National Law

Content about Primacy Of European Law from the publication “The ABC of European Union law” (2010, European Union) by Klaus-Dieter Borchardt.

The direct applicability of a provision of Union law leads to a second, equally fundamental question: what happens if a provision of Union law gives rise to direct rights and obligations for the Union citizen and thereby conflicts with a rule of national law?

Context of Primacy Of European Law in the European Union

Such a conflict between Union law and national law can be settled only if one gives way to the other. Union legislation contains no express provision on the question. None of the Union Treaties contains a provision stating, for example, that Union law overrides or is subordinate to national law. Nevertheless, the only way of settling conflicts between Union law and national law is to grant Union law primacy and allow it to supersede all national provisions that diverge from a Union rule and take their place in the national legal orders. After all, precious little would remain of the EU legal order if it were to be subordinated to national law. Union rules could be set aside by any national law. There would no longer be any question of the uniform and equal application of Union law in all Member States. Nor would the EU be able to perform the tasks entrusted to it by the Member States. The Union’s ability to function would be jeopardised, and the construction of a united Europe on which so many hopes rest would never be achieved.

More about Primacy Of European Law in the European Union

No such problem exists as regards the relationship between international law and national law. Given that international law does not become part of a country’s own legal order until it is absorbed by means of an act of incorporation or transposition, the issue of primacy is decided on the basis of national law alone. Depending on the order of precedence ascribed to international law by a national legal system, it may take precedence over constitutional law, be ranked between constitutional law and ordinary statutory law, or merely have the same status as statutory law. The relationship between incorporated or transposed international law and national law is determined by applying the rule under which the most recently enacted legal provisions prevail against those previously in place (lex posterior derogat legi priori). These national rules on conflict of laws do not, however, apply to the relationship between Union law and national law, because Union law does not form part of any national legal order. Any conflict between Union law and national law may only be settled on the basis of the EU legal order.

Other Aspects

Once again it fell to the Court of Justice, in view of these implications, to establish – despite opposition from several Member States – the principle of the primacy of Union law that is essential to the existence of the EU legal order. In so doing, it erected the second pillar of the EU legal order alongside direct applicability, which was to turn that legal order into a solid edifice at last.


In Costa v ENEL, the Court made two important observations regarding the relationship between Union law and national law.

_The Member States have definitively transferred sovereign rights to a Community created by them and subsequent unilateral measures would be inconsistent with the concept of EU law.

_ It is a principle of the Treaty that no Member State may call into question the status of Union law as a system uniformly and generally applicable throughout the EU.

Last Remarks

It follows from this that Union law, which was enacted in accordance with the powers laid down in the Treaties, has primacy over any conflicting law of the Member States. Not only is it stronger than earlier national law, but it also has a limiting effect on laws adopted subsequently.

Ultimately, the Court did not in its judgment call into question the nationalisation of the Italian electricity industry, but it quite emphatically established the primacy of Union law over national law.

The legal consequence of this rule of precedence is that, in the event of a conflict of laws, national law which is in contravention of Union law ceases to apply and no new national legislation may be introduced unless it is compatible with Union law.

The Court has since consistently upheld this finding and has, in fact, developed it further in one respect. Whereas the Costa judgment was concerned only with the question of the primacy of Union law over ordinary national laws, the Court confirmed the principle of primacy also with regard to the relationship between Union law and national constitutional law. After initial hesitation, national courts in principle accepted the interpretation of the Court of Justice. In the Netherlands, no difficulties could arise anyway, because the primacy of Treaty law over national statute law is expressly laid down in the constitution (Articles 65 to 67). In the other Member States, the principle of the primacy of Union law over national law has likewise been recognised by national courts. However, the constitutional courts of Germany and Italy initially refused to accept the primacy of Union law over national constitutional law, in particular regarding the guaranteed protection of fundamental rights. They withdrew their objections only after the protection of fundamental rights in the EU legal order had reached a standard that corresponded in essence to that of their national constitutions. However, Germany’s Federal Constitutional Court continues to entertain misgivings about further integration, as it has made quite clear in its judgments on the Treaty of Maastricht and, more recently, the Treaty of Lisbon.

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