The primacy of European law is a legal concept aiming to solve questions arising from the conflicts between national law and European law. The concept establishes the “supremacy” of the law made by the EU institutions over the member states own laws. In the wording of the Publications Office of the European Union (EUR-Lex): “The principle of the primacy (also referred to as ‘precedence’ or ‘supremacy’) of European Union (EU) law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of law in an EU Member State (national law), EU law will prevail.” As the primacy concerns the collision of laws in fields when national sovereignty is ceded to the EU, in policies that are not EU competences, the supremacy does not apply.

The principle of supremacy or primacy of the EU law has been at the center of both legal and political debates. The aim of this article is to present the legal aspect of the problem, therefore the origin of the primacy debates.

A concept formed by the jurisprudence of the CJEU

First and foremost, it should be noted that the primacy of EU law was (and still is) not written in the Treaties of the European Union. [Treaty on the European Union (TEU) and Treaty on the Functioning of the European Union (TFEU)] The primacy is originated from the jurisprudence of the CJEU. There is a significant reason for the concept not being part of the Treaties: the member states (France and the Netherlands) did not accept the 2004 Constitution for Europe. There is a written declaration (Declaration 17.) annexed to the Lisbon Treaty, but as the Constitutional Treaty was not accepted by the member states, the primacy could have been only saved by a declaration. It was saved in a creative way, but this also means that there is no “real” source from the EU law to support the primacy besides the sometimes questionable teleologically interpretative jurisprudence of the CJEU.

The Costa v ENEL case established the view of the CJEU (broadly the EU institutions) on the nature of EU law. In the Costa case the CJEU came to the conclusion that when the member states implemented the EU Treaty [at that time (1964) the Treaty of Rome was in force], it became “[…] an integral part of the legal systems of the member states and which their courts are bound to apply.” [Costa v ENEL case 3.] An important finding must be pointed out: the CJEU considers the EU Treaty a non-traditional international treaty which, by being implemented in the member states must be applied. This basic idea of the EU treaties being sui generis international treaties was the start of the primacy debates. 

The Costa case established the primacy of EU law by stating that the member states limited their sovereignty when they “transferred” powers to the community (the European Union). [Costa v ENEL case 3.] European law cannot be overridden by national law because it would question the Community itself — states the European court in the case. However, plenty of questions rest within the supremacy concept itself. The most important being the Costa v ENEL judgment, which created the grounds for the debates between the constitutional courts of the member states and the CJEU itself by implying the “special and original nature” of the EU law. This nature which the Costa v ENEL case mentions, therefore the CJEU relies on, was not defined in the reasoning of the case.

The legal pyramid: who stands at the top?

The absolut supremacy of the EU law means that the EU law succeeds the national law. Imagine a pyramid: normally at the top of the pyramid, in the national legal systems there is a constitution. This constitution gives the nation a common identity, basic legal grounds to pursue and the protection of basic human rights are also usually declared in the constitution. Should the absolut supremacy of the EU law be applied, at the top, the EU-made Treaties would set out the fundamental principles by which the state is governed. It would also mean the EU law could overview even the fundamental law/constitution of the member states. This would turn the European Union towards a federal structure as the national identity of the member states would perish for a common European identity.

The most important opposition to the supremacy, especially for the above-mentioned reason of national identity, is the jurisprudence of the constitutional courts. The overall viewpoint of constitutional courts shows an opposing pattern to the principle of primacy because the national sovereignty of the countries was not given as a whole to the EU, particularly in cases that concern constitutional structures and arrangements.

The Solange judgments

The Solange judgments are the German national court decisions regarding the protection of fundamental rights. National identity goes hand-in-hand with the constitution, in which the protection of the citizens’ basic rights is usually declared. The Solange case opposed the primacy of the EU law by declaring that the German Basic Law (constitution) must be applied, even at the expense of the supremacy of EU law.

The Bundesverfassungsgericht (BVerfG) [German constitutional court] held in the Solange I. decision that the fundamental rights of persons had not been evidently established within the case law of the CJEU, at least not in the same manner as the German Constitution protects these rights. Therefore, the constitutional court did not relinquish its jurisdiction regarding fundamental rights protection from the jurisdiction of the CJEU. In conclusion, the German court opposed the EU law primacy concept, and several cases of numerous different subjects arose in the years questioning the concept. But what is the question in reality?

The constitutional identity of the member states

Turning away from the Costa v ENEL and the Solange judgments (which have specific reasons to be mentioned as they are the groundbreaking cases of the topic at hand) a broader view must be pointed out regarding the constitutional identity of the member states. Member states did not agree on the primacy of EU law and they certainly did not accept the absolute supremacy of EU law. As the Constitutional Treaty of 2004 was not accepted, it was also implied that countries (besides other concepts) did not wish to give up any of their constitutional identity. This is a crucial conclusion of the Solange judgment and an interesting question for today: does the EU law also supersede the constitution? 

Article 4(2) TEU writes the following: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. […]” This article is called the “national identity clause”, but it is most often referred to as the one protecting Member States’ constitutional identity. 

Consequently, they rely heavily on their constitutional identities. Fundamental rights, the rule of law, the welfare state, and federalism gives meaning to the German (constitutional) identity. In France, “liberté, égalité, fraternité” define French (constitutional) identity since the Enlightenment. Therefore, the big question is: what happens when the CJEU and the constitutional court of a Member State do not agree on the case at hand? Does the supremacy of the EU law prevail? Does the constitutional court’s eventual protection of any constitutional identity prevail?

The primacy of EU law is far from an easily-explainable concept. Questions have arisen ever since the CJEU established its existence and the German BVerfG opposed its application. Among the recent constitutional jurisprudence of several member states, specific approaches to the interpretation of the primacy principle were found in Hungary, Germany, and France. After the representation of the primacy concept and some ground-breaking cases, in future blog posts, some of the more recent cases concerning primacy will be examined.

Márton Balogh is a law student in his fourth undergraduate year at the University of Pécs, Hungary, and a student at the MCC Law School. As of this year, he is a holder of the graduate scholarship of the Aurum Foundation. He is mostly interested in European law. His current study and research interests include the practice of the European Court of Justice in the Common Foreign and Security Policy, the primacy of European law, and migration and asylum law in the European Union. He envisions his future working in the European Union, where he currently interns at the European Parliament.