EU Supremacy (Primacy) and Effects
- EU law takes precedence over any national law.
- The notion of supremacy can lead to confusion as we have 'supremacy of Parliament' in the UK, and in constitutional democracies, there is supremacy of the constitution.
- EU law doesn't erase national law.
- Conceived by the Court of Justice. It is one of the cornerstones of the new legal order.
- It was implicitly mentioned in the van Gend en Loes case 1963.
- Costa v ENEL case 1964: National law, even if issued later than the EEC Treaty, cannot invalidate the Treaty. The legislator is prevented from creating law that conflicts with the Treaties.
- Any national constitution cannot invalidate the Treaties.
- The Court has also stated that precedence of EU law requires national courts to set aside conflicting rules of national law (Factortame 1990).
- One of the consequences of EU supremacy is that contravening norms should not be applied.
- EU law only recedes within the scope of EU law itself.
- E.g. Scottish universities apply lower fees to citizens of Scotland. EY citizens now have a right to be treated equally - they also pay the low fees.
- Supremacy also requires that Member States avoid contradictions between national law and EU law. This is enshrined in the Treaties in Art 4(3) TFEU.
- Legislators must revise national law that conflicts with EU law, and refrain from creating such law.
- National courts also have a role in avoiding these conflicts.
- They can interpret national law in such ways that conflicts are avoided.
- This is an indirect effect of EU law.
- The obligation of achieving conformity of national law with EU law is a consequence of EU supremacy.
- International law is a set of unwritten principles that govern the relationship between sovereign states.
- International law is binding on all states.
- Treaties between states constitute the second source of international law.
- Without international law, states could take up hierarchal or violent relations. It is a precondition for peaceful relations between states.
- International law is law inter nationes (between states), with an aim of governing the behaviour of states rather than individuals.
- International law aims to enable peaceful relations between states. While national law has a hierarchy between state and citizen, international law is horizontal; so no state can be the 'world ruler'.
- The United Nations General Assembly is not a world legislature
- The Security Council is not the executive
- The International Court of Justice can only decide cases where both sides have agreed that they will be subject to its jurisdiction and has no method of ensuring compliance with the decisions
- Some have qualified international law as politics rather than law
- Dualism: This theory suggests the existence of the national legal order and the international legal order. they regulate different subject-matter. International law rules relations between states, while national law regulates relations of citizens with each other and the government.
- Monism: This theory upholds the unity of the two legal systems and the supremacy of international law. It claims that international and municipal law form part of the same legal order. This divides into two theories: that municipal law precedes international law and vice-versa.
- These approaches are only principles.