Keith Mack
The primacy of European Union law, also referred to as the 'supremacy' or 'precedence' of EU law, is a legal principle that establishes the precedence of EU law over conflicting national laws of EU member states. This principle, derived from an interpretation of the European Court of Justice, asserts that EU law takes precedence over any contravening national law, including a member state's constitution. The United Kingdom, a former member state of the EU, had accepted the primacy of EU law over its national laws, with the European Communities Act of 1972 endorsing this principle. However, following Brexit, the UK's relationship with EU law has evolved, and the principle of EU law supremacy is no longer part of UK law as of 2024. This change was enacted through the Retained EU Law (Revocation and Reform) Act 2023, reversing the previous approach and giving domestic legislation precedence over conflicting EU regulations.
| Characteristics | Values |
|---|---|
| EU law takes precedence over UK law | Yes, until 31 January 2020 |
| EU law takes precedence over member state constitutions | Yes, except in Poland and Belgium |
| UK courts are bound by CJEU judgments | Yes, until 11 pm on 31 December 2020 |
| UK courts can interpret retained EU law independently | Yes, after 31 December 2020 |
| UK courts can overturn acts of parliament that conflict with EU law | Yes |
| UK courts can overturn national law that conflicts with EU law | No, but they must refuse to apply them |
| UK courts can interpret retained EU law based on UK principles of interpretation | Yes, after 2024 |
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What You'll Learn
The UK's acceptance of EU law supremacy
The United Kingdom was a member of the European Union and its predecessor, the European Communities, from 1 January 1973 until 31 January 2020. During this time, the UK accepted the supremacy of EU law. The European Union (Withdrawal) Act 2018 (EUWA) provided that in the event of a conflict between domestic legislation and EU law, the latter would prevail. This principle of the 'primacy' of EU law means that any conflicting national law in areas covered by EU treaties cannot be enforced.
The UK courts played a role in upholding the supremacy of EU law. In the case of R v Secretary of State for Transport, ex p Factortame Ltd, the House of Lords ruled that UK courts had the power to "disapply" acts of parliament if they conflicted with EU law. This ruling reinforced the principle that EU law takes precedence over national law in the UK.
However, it is important to note that the UK's acceptance of EU law supremacy did not go unchallenged. The doctrine of Parliamentary sovereignty in the UK means that there are technically no limits on what Acts can be passed or removed. While the principle of EU law supremacy was not directly challenged, a more recent law included some restrictions on its application in the UK.
With the UK's withdrawal from the EU, the dynamic between EU law and UK law has changed. As of 2024, the principle of supremacy of EU law is no longer part of UK law due to the Retained EU Law (Revocation and Reform) Act 2023 (REUL Act). This act established that domestic legislation takes precedence over any conflicting retained EU Regulations, reversing the pre-2024 approach. The removal of the automatic presumption of EU law supremacy in the UK legal system may have significant implications for the interpretation of retained EU case law and legislation.
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The European Court of Justice's ruling on member states' sovereign rights
The Court of Justice of the European Union (CJEU) is the judicial body of the EU. It is responsible for ensuring that the law is observed in the interpretation and application of the Treaties of the European Union. The Court has broad jurisdiction to hear various types of actions, including ruling on applications for annulment, taking action against member states for failing to fulfil obligations, and hearing references for preliminary rulings and appeals.
The principle of the primacy of EU law over the national law of member states has been established through the case law of the CJEU. This principle means that EU law takes precedence over conflicting national laws in areas where member states have ceded sovereignty to the EU, such as the single market, environment, and transport. The CJEU has ruled that member states have agreed to limit their sovereign rights in these areas and cannot adopt national laws that are incompatible with EU law.
One of the earliest and most important cases in establishing the primacy of EU law was Van Gend en Loos v Nederlandse Administratie der Belastingen (1963). In this case, the CJEU ruled that the Community constitutes a new legal order, consisting of not only the Member States but also their nationals. This established the principle that Community law was directly applicable in the courts of the Member States and could confer rights on individuals that national courts were bound to protect.
Another significant case was Costa v ENEL (1964), where the CJEU ruled that member states had definitively transferred sovereign rights to the Community and that Union law could not be overridden by domestic law. This case was fundamental in defining Community law as an independent system taking precedence over national legal provisions.
The CJEU has also ruled on the compatibility of EU law with the constitutions of member states. While the majority of national courts have accepted the primacy of EU law, some have reserved the right to review the conformity of EU law with their national constitutional law. For example, in 2016, the Belgian Constitutional Court ruled that there is a limit to the primacy of EU law over the Belgian Constitution, asserting that the core of Belgium's constitutional identity cannot be trumped by EU law.
In the United Kingdom, the issue of EU law taking precedence over national law was a significant source of debate during its membership in the EU. Following Brexit, the principle of the supremacy of EU law is no longer part of UK law as of 2024, and domestic legislation now takes precedence over any retained EU regulations.
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The Belgian Court of Cassation's ruling on self-executing treaties
EU law is generally accepted to have supremacy over the law of member states. This principle of the 'primacy' of EU law means that any conflicting national law in areas covered by the EU treaties cannot be enforced. However, the European Court of Justice does not have the power to strike down national law—this is a task for national courts.
In Belgium, the Court of Cassation is the highest court of appeal and is the supreme interpreter of Belgian law. It ensures the uniform interpretation and application of the law by all other courts and tribunals of the Belgian judiciary. The Court of Cassation exercises supreme jurisdiction over judicial decisions and does not hear appeals against administrative decisions. It also does not rule on the constitutionality of laws, which is the jurisdiction of the Constitutional Court of Belgium.
The Belgian Court of Cassation ruled in 1971 that self-executing treaties prevail over national law, and even over the Belgian Constitution. This ruling, nicknamed the "Franco-Suisse Le Ski ruling", confirmed the primacy of self-executing international treaties over domestic laws in cases of conflict between the two. Specifically, it affirmed the primacy of European Union law over any domestic law.
In 2016, the Belgian Constitutional Court ruled that there is a limit to the primacy of EU law over the Belgian Constitution. It stated that the core of Belgium's constitutional identity cannot be overridden by EU law, echoing the jurisprudence of the German Constitutional Court. This ruling demonstrates that while the Belgian Court of Cassation recognizes the primacy of EU law in general, it also acknowledges the supremacy of the Belgian Constitution in certain fundamental areas.
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The principle of 'direct effect'
The principle of direct effect is a fundamental principle of EU law. It enables individuals to immediately invoke an EU law provision before a national court, regardless of whether a national law test exists. This means that individuals can invoke a provision of EU law in relation to a state or another individual.
The European Court of Justice (ECJ) first articulated the doctrine of direct effect in the case of Van Gend en Loos, laying down the criteria for establishing direct effect, commonly referred to as the "Van Gend criteria". These criteria state that the EU article provision must be:
- Clear and precise
- Unconditional
- Not requiring additional measures, either national or European
If these criteria are met, the right or rights in question can be enforced before national courts. The ECJ has confirmed that regulations are directly effective, as they "confer rights on individuals which the national courts have a duty to protect". Directives, on the other hand, are only vertically directly effective, meaning they can be invoked against the state but not against another private individual or company.
The principle of direct effect ensures the application and effectiveness of EU law, protecting the rights of individuals. It also enables the effective enforcement of EU law in areas such as environmental protection, where individuals and NGOs can rely on EU directives in decision-making procedures and before national courts.
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The UK's European Union (Withdrawal) Act 2018
The European Court of Justice ruled in 1964 that member states had agreed to limit their sovereign rights in areas covered by EU treaties and could not adopt national laws that were incompatible with European law. This principle of the 'primacy' of EU law means that any conflicting national law in areas covered by the EU treaties cannot be enforced. However, the Court of Justice does not have the power to strike down national law, and this is instead a task for national courts.
The United Kingdom was a member state of the European Union from 1 January 1973 until 31 January 2020. During this time, the issue of EU law taking precedence over national law was a significant issue and a cause for debate among politicians and in the judiciary.
Section 5(2) of the Act provided that in the case of a conflict between pre-2021 domestic legislation and retained EU law, the latter would prevail. However, any UK legislation passed after 2020 that was inconsistent with EU retained law would take precedence. From 2024 onwards, the principle of supremacy of EU law will no longer be part of UK law. This change was made by the Retained EU Law (Revocation and Reform) Act 2023, which states that domestic legislation takes precedence over any retained EU regulations. This means that there will no longer be an automatic presumption that retained EU law takes precedence over conflicting pre-2021 domestic legislation.
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Frequently asked questions
Yes, the principle of the primacy of EU law states that EU law takes precedence over conflicting national laws of EU member states. This principle was derived from an interpretation of the European Court of Justice, which ruled that European law has priority over any contravening national law, including the constitution of a member state itself.
The principle of the primacy of EU law (also referred to as 'precedence' or 'supremacy') is a legal principle that establishes the precedence of European Union law over conflicting national laws of EU member states. This principle is based on the idea that if EU law did not take precedence, member states could simply allow their national laws to take priority over primary or secondary EU legislation, making the pursuit of EU policies unworkable.
Yes, the UK accepted the primacy of EU law for some time. The European Communities Act, passed by Parliament in 1972, accepted the supremacy of EU law. This principle was also endorsed by the UK courts. However, the UK is no longer a member state of the European Union as of 31 January 2020, and with effect from 2024, the principle of supremacy of EU law is no longer part of UK law.
When EU law takes precedence over conflicting national law, the national provisions are not automatically annulled or invalidated. However, national authorities and courts must refuse to apply those provisions as long as the overriding EU norms are in force. This ensures that people are uniformly protected by an EU law across all EU territories.
