Essay: The principle of supremacy (EU law) is not absolute. Critically discuss.

‘The principle of supremacy, whilst essential to ensure EU law is enforced in the Member States, is not absolute. There are limits, at both national and EU level, on its application.’ Critically discuss.
05.01.2019
The principle of supremacy states that where a conflict arises between European Union (EU) law and national law, EU law will take precedence. Although supremacy is essential in ensuring EU law is enforced, it is not necessarily absolute. At EU level, supremacy may be limited where it would clash with other general principles of Union law. In contrast, at national level, limits of its application come from where EU law is, for example, deemed to violate fundamental rights. A more direct rejection of supremacy may come from national courts derogating from treaty principles or choosing to leave the EU. These widespread limits to supremacy suggest that supremacy is not absolute.
Firstly, supremacy is essential in ensuring EU law is enforced in the member states. The EU originated from the desire to create a single market and the success of this would naturally depend on rules being applied effectively and uniformly across all the member states. Decentralised enforcement of Union law was built around four pillars: direct effect, supremacy, effective judicial protection and the preliminary reference procedure, which aimed to ensure EU law was enforced automatically and unconditionally. Certain provisions of union law enter national legal systems as union law rather than national law which can create a conflict where different laws clash. The principle of direct effect allows individuals to say they rely on union law which was recognised in van Gen en Loos (1963). As an individual can argue that there is a conflict, the doctrine of supremacy had to be created to reconcile this. The European Court of Justice (ECJ) ruled in Costa v E.N.E.L (1964), that where there is a conflict between national law and Union law, the latter would prevail. The reasoning by the court in making the judgement was that member states limited their sovereign rights when they joined the EU and supremacy is needed to achieve the common market. Therefore, it is clear that supremacy is essential to ensure EU law is enforced in member states; without it, there would be a lack of cohesion and a lack of protection for the EU citizens.
The ECJ has the view that EU law is absolute and without limitations, regardless of the provision in question. The full implications of supremacy were made clear in Simmenthal (1978); when a provision comes into force, it would ‘render automatically inapplicable any conflicting provision of current national law,’ as well as ‘preclude the valid adoption of new national legislative measures.’ This looked at both previous provisions and future provisions and would set aside the conflicting national law. Here, the ECJ emphasised the widespread implication of the principle and implied a zero tolerance on rejecting the supremacy of EU law. However, the reality of this was shown in subsequent case law which indicated to the limits of the supremacy, at both EU and national level.
A limitation to the absolution of supremacy at EU level arises where supremacy has to give way to another general principle of Union law. In Asda Stores (2003), the union had adopted a regulation in 1992 which protected geographical designations for agricultural produce. Among this, there was a simplified procedure to register and protect pre-existing produce such as Parma Ham. As Asda sold a product labelled Parma Ham, the Italian association brought an action against Asda which failed on the grounds that there was no legal certainty, a general principle of Union law, because of the simplified registration procedure and therefore Union law could not be enforced. This case highlighted a key limit to supremacy as although the legislation may seem solid, there are still greater factors in ensuring EU law is properly implemented.
Furthermore, greater limits to supremacy come from national level. On one hand, there is underlying sovereignty that allows member states to remain free to assert their full legal competence, however, on the other hand the member states agreed to limit this sovereignty when they became a member. National constitutional courts view supremacy ‘as a concept rooted in the national constitutions rather than deriving from the autonomous nature of the community legal order.’ This creates tension as the member states still retain their sovereignty and the only reason the EU became what it is today, is because the member states gave the EU its power and allowed themselves to be restricted by its rules.
The conflict between national sovereignty and EU supremacy was made clear in the UK as there was a conflict with parliamentary sovereignty. The issue arose as one parliament cannot bind a future parliament but the European Communities Act 1972 (ECA) sought to entrench the supremacy of union law over conflicting national law which restricted the legislative competence of future parliaments; an issue impossible under the doctrine of supremacy. The ECA stated that any future EU legislation ‘without further enactment to be given legal effect,’ which brought EU law part of the UK legal system and s.2(4) ECA made clear any clashes would be dealt in favour of the Union. However, the UK’s attitude showed some defiance at first. Lord Denning said that if Parliament intentionally passed legislation that would clash with EU law, then it would be ‘the duty of our courts to follow the statute of our Parliament.’ Even more, the courts said they would allow ‘some departure from the strict and literal application’ where a statue can ‘reasonably be construed so as to conform with [EU] obligations.’ This is one example of a member state that tried to retain its sovereignty in the face of the ratification of the Maastricht Treaty 1992. In practice, the UK was not always able to do this and had to apply the EU legalisation. In the Factortame cases, the EU courts granted the Spanish fishing company interim relief which had caused conflict with UK Merchant Shipping Act 1988. The ECJ said there was voluntary restriction on parliamentary sovereignty and they should have known the implications on their sovereignty when they signed the treaty. The logic behind this was that the ECA 1972 was the source of the restriction not EU law as the domestic legislation incorporated EU law into domestic law, so it was Parliament’s own doing. Many other member states, like Germany, had also attempted to reassert their sovereignty and the underlying theme amongst all is the scepticism towards the supremacy of EU law as they made it clear the EU is a product of the accumulation of powers given by the member states who retain the authority to derogate from EU law or even withdraw if it wishes to do so, which was brought to light with Brexit.
Naturally, the conflict between sovereignty and supremacy would result in challenges made to the ECJ by the member states. The prime example was the cases of Solange I and Solange II in Germany. As one of the founding members of the EU, the federal constitutional court (FCC) in Germany had been very critical in implementing EU law, particularly when there was a conflict. The constitutional courts had established themselves as ‘powerful, influential, activist players, dictating the rule of the political game for other political actors.’ This self-awareness had created doubt as to whether the EU was able to provide the same protection as they did. In Solange I, the court decided that in the event of a conflict, the national rule would prevail but later took a more compromising approach in Solange II, trusting that the EU was able to safeguard fundamental rights adequately and so long as this was at a similar standard to the German law, they would refrain from exercising their jurisdiction.
However, the issue continued and amounted to a legal crisis; national courts would deliberately and systematically refuse to enforce EU law. In the Maastricht judgement, there was another shift of emphasis as the FCC stated they would only exercise jurisdiction if two elements were satisfied; if the protection was not subsequently equivalent to the German basic law and if they acted ultra vires. The FCC agreed that it is for the ECJ to police EU competences and annul any ultra vires acts but if they fail to do this properly, the FCC would step in. This decision came after the ratification of the Maastricht Treaty 1992 and although the decision did say the treaty was compatible with the German constitution, the FCC wanted to assert a power of constraint emphasising this battle between sovereignty and supremacy. The critical decision in Bananas tried to settle this and stated that the FCC would protect supremacy as long as the general standard of fundamental rights protection in union law was comparable to the protection in German law. On the one hand, this contradicts the statement that there are limits to supremacy. It seemed that the FCC accepted supremacy of EU law rather than letting it amount to confrontation and shifted their position in becoming more Euro-friendly. However, all this case law on the fundamental rights battle in Germany has cast doubt on the absolution of EU supremacy. The FCC was able to constantly challenge EU law and the climatic decision in Bananas still gave them a power to challenge EU law in the future. It indeed ‘proved the deficiency of the Court’s fundamental rights review, which falls short of the level of protection mandated by…the constitutions of the member states.’ The ongoing battle between national courts and ECJ on enforcing supremacy has made the EU look weaker as their authority had been undermined with the constant challenge to its supremacy. The Bananas decision is not necessarily a win-lose situation as the FCC decided themselves not to bring the action to the ECJ so it is more so a national court choosing the best time to take an action further when it is necessary, rather than the ECJ enforcing supremacy. Therefore, there are clear limits to supremacy at national level and in cases concerning fundamental rights, national courts are willing to challenge supremacy when they see a disparity in the level of protection. EU supremacy is an ongoing issue in German courts and it is unclear whether this could be resolved or should be. It is evident that the German approach is to push forward the idea of their sovereignty but in practice, they still avoid conflict and exercise a level of judicial restraint.
Currently, the situation in Poland is an example of the ultimate rejection of EU supremacy. Since 2015, there has been a rule of law crisis as the PiS (Poland’s right-wing political party) are in open rebellion against the EU in attempts to bring back authoritarianism and control of Poland. They introduced a law that lowered the retirement age of Supreme Court judges which forced 27 to retire, including the president, allowing a new Supreme Court that would reflect their extreme right-wing ideology and beliefs. This was not only against the Polish Constitution but also undermined judicial independence under Article 19(1) Treaty on the European Union 2007 and Article 47 of the Charter of Fundamental Rights of the European Union 2000. This is because the rule of law is a core value of the EU and by creating a Supreme Court that would be in favour of rebelling against the EU, the judiciary would not be independent and impartial. In response, the European Commission (EC) evoked Article 7(1) TEU for the first time which allows the EU to suspended voting rights in the event of a serious breach of the core values by a member state. In a speech by the vice-president of the EC, the 13 laws adopted by Poland ‘put at serious risk the independence of the judiciary and the separation of powers’ and whilst they had been prepared for a ‘constructive dialogue’, the Polish authorities have not responded after two years. The tone of the EC seemed very reluctant to implement these sanctions and was very prepared to cooperate with Poland to resolve the issue which suggests the severity of the breach in that the whole principle of supremacy has been undermined and the EU have been forced into an unfamiliar position in which they are unsure how to respond. More recently, the ECJ made an interim order to suspend the application of the disputed national law and also allowed an expedited procedure to allow a decision to be made quickly. The crisis stems from the necessity for Poland to respect EU laws and core values as if not respected, this can have detrimental effects in ensuring the EU law is effective and uniformly applied across the member states. Clearly, there is a limit to supremacy here as the EU can only do so much like suspending voting rights. To cut funding, the EU needs the unanimous support from the member states which poses a problem as there is a similar situation in Hungary and their Prime Minister Viktor Orban said Hungary would block any action against Poland, therefore Poland is reaping the benefits of membership whilst defying the rules. In light of this crisis, it is evident there are limits to the application of EU law. The EU is struggling to implement the law in the face of a hostile member state and it is still unclear what the EU can actually do in response to this.
In conclusion, there are limits to EU supremacy. Member states retain sovereignty and gave the EU its authority so retain the ability to regain control. In the UK, Brexit has highlighted the ultimate rejection of EU supremacy by evoking Article 50 TEU and choosing to leave the EU, signalling the end of supremacy in that particular member state. Recognising the rule of law crisis in Poland and Hungary as well as Brexit, the future of the EU is uncertain and the impact of these events could create a rippling effect causing chaos to the principle of supremacy as other states may lead by example if the UK receives a favourable deal when leaving or if member states doubt the authority of the EU in tackling the rule of law crisis. Nevertheless, the EU is not absolute and it is still subject to the wishes of the member states.