Previous: European Union law making

Primacy of European Union Law

It has already been mentioned in passing that EU law is supreme over that of any member state. The key case is Costa v ENEL (1964), in which the Court of Justice confirmed this absolutely. EU law is also supreme over a variety of other types of law. Melloni [2013] confirmed that EU law takes precedence over national constitutions; Kadi [2008] found EU law to be supreme over international agreements, and in the EC Patents Court Case (2011) Opinion, it was said that EU law should be considered as supreme over the patents court even though the EU was only a member of that patents court.

Primacy is a concept not mentioned in the Treaties – it is only mentioned in Declaration No. 17 (attached to the Treaties), but, in the words of Costa v ENEL (1964), it follows from the real and permanent transfer of power symbolised by the treaties. The view is also logical, as uniformity is required for the EU to stand any chance of achieving its objectives. Simmenthal [1978] is a good example of primacy in action: an Italian meat import levy was abolished in favour of a uniform set of rules. Similarly, in Commission v France [1974], it was irrelevant that a French law in breach of EU law was never enforced – it was still voided by the EU’s supremacy.¬†Following these cases, it is¬†surprising that many in the UK were shocked by the decision in Factortame [1990], in which a Spanish company was given interim relief contrary to the Crown Proceedings Act 1947, as a result of the supremacy of EU law...

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