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  confirmed that EU law takes precedence over national constitutions; Kadi  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  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 , 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 , 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.
Despite the clarity of this rule of supremacy, whilst some Member States accept supremacy, others only tolerate it. Germany and the UK fall into the latter description. Germany has developed a ‘Kompentenz-Kompetenz’ doctrine, in which its own constitutional court may make rulings on the competence (and therefore the lack of supremacy) of the EU. As yet, it has not been brave enough to substantively challenge the Court of Justice’s jurisdiction – even where it has found a breach, such as in the case of Honeywell , it found that the breach was not ‘sufficiently serious’ to warrant national intervention.
Although EU law is supreme over that of national governments, Article 4(3) TEU uses this supremacy to impose a duty on Member States to cooperate with the EU in the furtherance of the EU’s objectives. Member States must not jeopardise the EU’s attainment of its objectives. As such, in the Spanish Strawberries case , France was required to ensure that the free movement of goods was not completely prohibited by road blocks erected by protesters. The duty of fidelity also also requires Member States to secure the legal authority of EU law, report issues and penalise breaches.
The final implication the EU’s supremacy is pre-emption: under Article 3 TFEU, Member States are pre-empted from acting within the EU’s areas of exclusive competence. This pre-emption does not exist where the competence is shared (such as the internal market). In the Dim-dip Headlights case , the UK was pre-mepted from adopting more stringent road safety standards than the EU required, as the EU’s legislative act was within its exclusive competence. Although in the Wild Birds case , Germany was not pre-empted from building a dyke in an area governed by EU environmental protection as Germany had a superior interest – an exception to the rule. According to Article 4(2) TFEU, if a competence is shared between the EU and a Member State, the Member State may only act to the extent that the EU has not.
The EU may only act within the power conferred by the Treaties. According to Article 5 TEU, if a power is not conferred, it remains with Member States. Assuming that it has the competence to act, the EU’s actions are then governed by the principles of subsidiarity and proportionality. Finally, if it chooses to act, the EU must also do so upon the correct legal basis. Two legal bases will be considered below.
Articles 3 and 4 TFEU list the competencies conferred by the treaties. Those in the former article are exclusively conferred – Member States are pre-empted from acting in these areas – and in the latter article, competences are shared – Member States may act where the EU has not.
Subsidiarity and proportionality
Article 5(3) TEU states that if the EU wishes to act in an area of non-exclusive competence, it must not act unless the objective of its act cannot be achieved at a lower level – i.e. at national level. Subsidiarity is inapplicable in areas of exclusive competence. The Protocol on Subsidiarity and Proportionality requires the Commission to justify its proposals’ conformance with the principle, but it should be noted that the principle, according to the Tobacco Labelling Directive Case, is not a precise concept, and appears difficult to breach.
In all areas of competence, exclusive or not, the EU must also act in accordance with the principle of proportionality: it may only act in a way that is necessary to achieve the objectives of the Treaties. Once again, the Protocol requires draft justifications. The case of Fedesa  broke the principle down into 3 questions: is the measure suitable, is it necessary and its its effect not excessive? If all 3 questions may be answered affirmatively, the measure is likely proportional.
Correct legal basis
Often, two legal bases will be suited to a particular measure. The choice of legal base should be made objectively by the Commission, considering factors such as the aim of the measure, as was said in the Linguistic Diversity case . According to Titanium Dioxide , if there are two or more possible legal bases, the base which gives more power to Parliament (usually by way of the Ordinary Legislative Procedure) should be used. Though this is a secondary consideration to the objective test, as illustrated by the Working Time Directive Case : as objectively, the legal bases were not equally suited to the health and safety measure in question, it was irrelevant that the correct legal base gave less power to the European Parliament.
Article 114 TFEU
Article 114 TFEU is the most controversial legal base contained within the Treaties. It provides that the OLP may be used to create measures which establish the functioning of the internal market – an area without frontiers where goods, persons, services and capital may be moved freely according to Article 26 TFEU. Article 114(2) limits the base’s use by excluding its use for measures which affect fiscal policy, employment or the free movement of people. On its face, this base provides a very broad power: if there is an inconsistency between trading conditions between any two Member States, no matter how broad or minor, a measure could be introduced to prevent one Member State from being unfairly disadvantaged. A significant amount of case law has developed to limit the power expressed in Article 114.
Firstly, in Tobacco Advertising I , the CJEU ruled that Article 114 does not provide a general power to regulate the internal market; it provides merely a way of removing appreciable distortions of competition (obstacles to free trade) between Member States. These obstacles may be potential future obstacles. Once this test has been passed, a measure resulting from Article 114 may have provisions which do not directly address distortions, as long as those provisions contribute to a genuine market objective. As the Directive in Tobacco Advertising I  purported to put a blanket ban on the advertising of all consumer tobacco products, including minor items such as branded ash-trays which did not contribute to the internal market, the Directive was annulled.
Secondly, in Tobacco Advertising II , the restrictions imposed on Article 114 were relaxed, allowing a directive based on Article 114 to have the priority of protecting public health, even though public health is expressly denied as a competence of the EU.
Article 352 is an anomalous legal base, as it allows a unanimous Council, with the consent of the European Parliament, to adopt necessary measures outside of the competence of the EU. For example, a human rights agency has been created in the past. This is of course controversial however, and national courts are sceptical about the EU’s competence to represent its own competence. The German Constitutional Court said that both of its legislative houses would have to approve such a measure, which the EU would likely disapprove of. The European Union Act 2008 in the UK sets out a similar requirement. Declaration 42 says that Article 352 is not to be used to modify the Treaties.
Amidst the complex issues surrounding the primacy and competence of EU law is governance. Article 11 TEU, along with providing for the citizen’s initiative, provides that the EU must maintain an open dialogue with citizens of the EU and Member States. Article 15 TEU also provides that the EU’s institutions must remain transparent. As part of this, under Article 15(3) TEU, citizens may request documents from institutions. These requests may only be denied for reasons of public or private interest. In Sweden v MyTravel Group and Commission , under this Article, there should be full disclosure permitted before justification. Hautala v Council  found that documents should not be withheld if confidential information could simply be blanked out and in Sweden v Commission , it was said that institutional privacy was not enough to justify non-disclosure.