Part I
Constitutional Foundations

6. European Law II: Nature—Primacy/Pre-emption  

Introduction

Since European law is directly applicable in the Member States, it must be recognised alongside national law by national authorities. And since European law can have direct effect, it might come into conflict with national law in a specific situation. And where two legislative wills come into conflict, each legal order must determine when conflicts arise and how these conflicts are to be resolved.

For the Union legal order, these two dimensions have indeed been developed. In Europe’s constitutionalism they have been described as, respectively, the principle of pre-emption and the principle of supremacy: ‘The problem of preemption consists in determining whether there exists a conflict between a national measure and a rule of [European] law. The problem of [supremacy] concerns the manner in which such a conflict, if it is found to exist, will be resolved.’ Pre-emption and supremacy thus represent ‘two sides of the same coin’. They are like Siamese twins: different though inseparable. There is no supremacy without pre-emption.

This chapter begins with an analysis of the supremacy doctrine. How supreme is European law? Will European law prevail over all national law? And what is the effect of the supremacy principle on national law? We shall see that there are two perspectives on the supremacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not shared by the Member States. Indeed, according to their national perspective(s), the supremacy of European law is relative: some national law is considered to be beyond the supremacy of European law.

A third section then moves to the doctrine of pre-emption. This concept tells us to what extent European law ‘displaces’ national law; or, to put it the other way around: how much legislative space European law still leaves to the Member States. The Union legislator is generally free to choose to what extent it wishes to pre-empt national law within a certain area. However, there are two possible constitutional limits to this freedom. First, the type of instrument used – regulation, directive or international agreement – might limit the pre-emptive effect of Union law. And, second: the type of competence on which the Union act is based might determine the capacity of the Union legislator to pre-empt the Member States.

The European Perspective: Absolute Supremacy

  1. The Absolute Scope of the Supremacy Principle
    1. Supremacy over International Laws of the Member State
    2. Supremacy over International Treaties of the Member States
  2. The Executive Nature of Supremacy: Disapplication, Not Invalidation

The National Perspective: Relative Supremacy

  1. Fundamental Rights Limits: The ‘So-long’ Jurisprudence
  2. Competence Limits I: From ‘Maastricht’ to ‘Mangold’
  3. Competence Limits II: National Constitutional Identities

Legislative Pre-emption: Nature and Effect

  1. Field Pre-emption
  2. Obstacle Pre-emption
  3. Rule Pre-emption

Constitutional Limits to Union Pre-emption

  1. Union Instruments and Their Pre-emptive Capacity
    1. The Pre-emptive Capacity of Regulations
    2. The Pre-emptive Capacity of Directives
    3. The Pre-emptive Capacity of International Agreements
  2. Excursus: Competence Limits to Pre-emption
  1. Direct Effect and Supremacy’ (2007) 44 CML Rev. 931. This chapter, as will become clearer below, favours the view that supremacy requires direct effect. For where a European norm lacks direct effect, it cannot be applied in a specific case and for that reason cannot clash with a national norm. This is, in my view, also the traditional position of the European Court. The latter – for example – regularly holds that ‘the question whether a national provision must be disapplied in as much as it conflicts with European Union law arises only if no compatible interpretation of that provision proves possible’ (Case C-282/ 10 Dominguez, EU:C:2012:33, para. 23); and that seems to clearly suggest that, with regard to the indirect effect of, say, a European directive, it is not the doctrine of supremacy but another doctrine that applies. And it is that (!) other doctrine, for example, the duty of consistent interpretation derived from Art. 4(3) TEU that is here given direct effect in a specific case. ↩
  2. M. Waelbroeck, ‘The Emergent Doctrine of Community Preemption: Consent and Redelegation’, in T. Sandalow and E. Stein (eds.), Courts and Free Markets: Perspectives from the United States and Europe, 2 vols. (Oxford University Press, 1982), II, 548–80, at 551. ↩
  3. S. Krislov, C.-D. Ehlermann and J. Weiler, ‘The Political Organs and the Decision-Making Process in the United States and the European Community’, in M. Cappelletti, M. Seccombe and J. Weiler (eds.), Integration through Law: Europe and the American Federal Experience, 5 vols. (de Gruyter, 1986), I, 3 at 90. ↩