Has it been easy for Member States in the European Union to give up sovereignty and prerogative powers to the Union itself? The issues, both in a paractoical and theoretical sense, give rise to the supremacy of the European Union as a key fundanmental principle. This reflects the issue of relation between the national law and the EU itself. This matter becomes more intriguing in the new context as the enlargement gives rise to a process of ratfication of the European Constitution.
Nowhere in the Treaties themselves is there any reference to the supremacy of European Union law, or its hierarchy with the national law of the Member States. Instead, this principle has evolved from the case law of the European Court of Justice. The case of Costa v ENEL established supremacy of EU law, concerning a conflict between several Treaty provisions and an Italian statute, which nationalised the electricity company in Italy. Therefore, the ECJ holds a view that the creation was jurisprudential, with various Member States relating in different ways to the decision. This was also followed by Internationale Handelsgesellschaft, as mentioned below, which went further than Costa by stating that even secondary EU law, such as regulations, were a higher form of law than the specific constitutions of Member States. Although this would not affect the UK as currently there is no written constitution, it does have significant effect on most of the other EU Member States.
The doctrine of EU law’s supremacy is developed in the ECJ, however, it is known that throughout EU law a fictional structure subsides. In more general terms, most of the member states do not accept supremacy in EU law with only one exception, the Netherlands. Under the 1963 constitution, Joseph Fleuren an EU academic writer, provides commentary on the amendment relating to supremacy. He states: “self-executing provisions of the treaties and of resolutions of international organisations are binding upon natural and legal persons and have supremacy over the national law itself.“. Following this commentary, it is said, that the acceptance of the supremacy doctrine by the Member State of the Netherlands is not derived from its own constitution, but from the recognition of the European Union throughout its laws.
Under the European Union (Amendment) Act 2008, each retrospective aspect of the EU law is directly effective towards national courts. The commentary of Steiner states “the courts of member states have now seemed to have accepted the principle of supremacy of EU law, providing they regard it as directly effective”. In correspondence with this writing, we can see that supremacy has a naturally wider application than the EU law interpretation of direct effect. The general rule suggests that all national law is inconsistent with the current and recent EU law through the case of Von Colson and Francovich. However, the Treaty of Rome’s provisions expressed that European Union Law prevailed over per 1972 British legislation. This is shown through the case of R v Secchi where the members of the judiciary affirmed that the initial European Union law ‘is in conflict with domestic law, as the effect of the European Communities Act is to make English law, both in common and statutory instruments, in compliance with European Union law. This presents the idea that the United Kingdom has accepted on a voluntary basis the aspects of supremacy in law of EU. Initially, as a review of the case law in the...