203 The Authority of EU Law

when there is a conflict between it and national law and what the consequences of that conflict are. This is a slightly different quality from primacy as it goes to the circumstances of any
conflict and the legal consequences of EU law prevailing. The doctrine most associated with
this principle is that of pre-emption. The third concerns the remit of EU legal authority. It is for
EU law to determine which activities are governed by it and to what it can apply. If it cannot
do this and this were to be determined elsewhere, its autonomy would be compromised (the
doctrine of conferred powers). Finally, the sovereignty of EU law establishes a rule of law, to
which all public institutions within the Member States are subject, including national courts.
This involves specifying a series of institutional duties setting out what such institutions must
do to make the European Union work as a fully effective legal system (the fidelity principle).
The remainder of this chapter looks at how these different doctrines are played out, both by
the Court of Justice and the national courts.

4 THE PRIMACY OF EU LAW

The primacy principle in which EU law takes precedence over national law was first proclaimed
in Costa. It is most neatly illustrated by the decision in Internationale Handelsgesellschaft, in
which the Court famously ruled that EU law takes precedence over all forms of national law,
including national constitutional law. The claimant brought an action before a German administrative court challenging the validity of a Regulation. The German court considered that
the Regulation violated certain provisions of the German Constitution. The view of the Court
of Justice was uncompromising.

Case 11/70 Internationale Handelsgesellschaft v Einfuhr- und Vorratstelle fr Getreide

und Futtermittel [1970] ECR 1125
3. Recourse to the legal rules or concepts of national law in order to judge the validity of measures
adopted by the institutions of the Community would have an adverse effect on the uniformity
and efficacy of Community law. The validity of such measures can only be judged in the light of
Community law. In fact, the law stemming from the Treaty, an independent source of law, cannot
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. Therefore the validity of a Community measure or its effect within a Member State
cannot be affected by allegations that it runs counter to either fundamental rights as formulated by
the constitution of that State or the principles of a national constitutional structure.

The primacy of EU law applies not only to substantive conflicts, when a domestic norm conflicts with an EU law. It also has a jurisdictional dimension. It is not open to national law to
determine which courts can hear conflicts. The primacy of EU law applies whenever a conflict
appears before any court or body which is competent to take legal decision. In Simmenthal,
an Italian system of fees for veterinary inspections of beef imports had already been held by
the Court of Justice to breach EU law. An Italian magistrate asked the Court whether he was
required to disapply the relevant Italian law. This was a power which at that time was enjoyed
only by the Italian Constitutional Court as only it had the power of legislative review.

204 European Union Law

Case 106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR 629
17. . . . in accordance with the principle of the precedence of Community law, the relationship between
provisions of the Treaty and directly applicable measures of the institutions, on the one hand and
the national law of the Member States, on the other is such that those provisions and measures not
only by their entry into force render automatically inapplicable any conflicting provision of current
national law but in so far as they are an integral part of, and take precedence in, the legal order
applicable in the territory of each of the Member States also preclude the valid adoption of new
national legislative measures to the extent to which they would be incompatible with community
provisions.
18. Indeed any recognition that national legislative measures which encroach upon the field within which
the Community exercises its legislative power or which are otherwise incompatible with the provisions
of Community law had any legal effect would amount to a corresponding denial of the effectiveness of
obligations undertaken unconditionally and irrevocably by Member States pursuant to the Treaty and
would thus imperil the very foundations of the Community . . .
21. . . . 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 provision of
national law which may conflict with it, whether prior or subsequent to the Community rule.
22. Accordingly any provision of a national legal system and any legislative, administrative or judicial
practice which might impair the effectiveness of Community law by withholding from the national
court having jurisdiction to apply such law the power to do everything necessary at the moment of
its application to set aside national legislative provisions which might prevent Community rules from
having full force and effect are incompatible with those requirements which are the very essence of
Community law.

On its face, primacy of EU law is the most direct expression of its sovereignty and, insofar
as the latter is contested, one would have assumed it to be particularly contingent. Whilst it
is difficult to imagine any national constitutional court, with the exception of the Estonian,
ever allowing Internationale Handelsgesellschaft to be applied over its national constitution,
it is almost impossible to find any recent example of a national measure being applied by a
constitutional court over an EU measure.27
The first reason for this is that the constraints placed on the authority of EU law by national constitutional courts are exceptional ones. In principle, they are willing to grant EU
law authority subject to its not violating certain national taboos. Their assertion of national
sovereignty is rather an assertion of the power to put ultimate safeguards into action rather
than an assertion of regular control of the application of EU law. This was reiterated in
Gauweiler.

27

Both the Cypriot Supreme Court and Polish Constitutional Tribunal refused to comply with the European Arrest
Warrant which requires states to surrender individuals wanted in another state within forty-five days, Attorney
General of the Republic of Cyprus v Konstantinou [2007] 3 CMLR 42; Re Enforcement of a European Arrest
Warrant [2006] 1 CMLR 36. In each case, this was on the basis that measures then in the third pillar did not at
the time have to be applied over national measures.