Keywords: EU supremacy, primacy of EU law, Costa v ENEL, EU constitutional law, CJEU case law, national constitutional courts.
The landmark case Case 6/64 Costa v ENEL established the principle. The Court of Justice of the European Union (CJEU) held that:
- Member States have limited their sovereign rights by joining the EU.
- Eu law therefore cannot be overridden by domestic legal measures.
- A uniform and effective EU legal order requires consistent application across all Member States.
This was a constitutional moment: the Court effectively declared that EU law forms a new legal order that binds both individuals and states. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61964CJ0006
Building the Doctrine: Key Cases
Internationale Handelsgesellschaft (1970)
The CJEU confirmed that EU law prevails even over national constitutional norms, including fundamental rights provisions. This was controversial, but it pushed Member States to develop their own rights-protection dialogue with the Court. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61970CJ0011
Simmenthal (1978)
National courts must disapply conflicting national law immediately, without waiting for legislative repeal or constitutional review. This empowered ordinary courts and strengthened decentralised enforcement of EU law. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:61977CJ0106
Factortame (1990)
A defining moment for UK constitutional law. The House of Lords suspended an Act of Parliament (the Merchant Shipping Act (1988) because it breached EU law. This demonstrated supremacy in practice – and sparked decades of constitutional debate. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61989CJ0213
While the CJEU insists on absolute supremacy, national constitutional courts have often responded with conditional acceptance.
Examples:
- Germany (Solange, Maastricht, Lisbon, PSPP): Accepts supremacy as long as EU law protects fundamental rights and stays within its competences.
- Italy (Frontini, Taricco saga): Protects core constitutional principles and criminal legality.
- Poland and Hungary: Recent constitutional conflicts highlight the political dimension of supremacy.
This creates a dialogue rather than a hierarchy – a tension that is both productive and occasionally explosive.
Supremacy After Brexit
The UK accepted supremacy through the European Communities Act 1972 https://revisedacts.lawreform.ie/eli/1972/act/27/revised/en/html which gave EU law domestic effect.
Post-Brexit, the European Union (Withdrawal) Act 2018 https://www.instituteforgovernment.org.uk/article/explainer/eu-withdrawal-act-2018 ended supremacy for new laws, but retained it for retained EU law unless expressly repealed.
So while the UK has left the EUU, the doctrine still casts a long shadow over UK legal interpretation.
Why Supremacy Matters
Supremacy is essential because it ensures:
- Uniformity: EU rules apply consistently across Member States.
- Effectiveness: Individuals can rely on EU rights in national courts.
- Integration: The internal market and fundamental freedoms function only if EU law prevails.
Without supremacy, the EU would be a loose international organisation – not a constitutional legal order.
Conclusion: A Doctrine Still in Motion
Eu supremacy is not static. It continues to evolve through:
- constitutional identity claims
- rule-of-law disputes
- Brexit’s legacy
- debates over the limits of EU competences
Understanding supremacy means understanding the balance of power between the EU and its Member States – a balance that remains central to the future of European integration.
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