Chapter 9
SUPREMACY OF EU LAW
1. What important principle of EU law was established in the case of 6/64 Costa v ENEL?
a. direct effect of EU directives.
b. the supremacy of EU law in a situation where there is a conflict between EU law and
national law of a Member State.
c. the principle of State liability under which a Member State can be liable for any loss
suffered by an individual as a result of that State’s breach of EU law.
a. This is a wrong answer. The Costa case had nothing to do with directives but in fact
concerned a conflict between the Italian Constitution and the Treaties. For a case on direct
effect of directives see Case 41/74 Van Duyn v Home Office
b. This is the correct answer. In this case the ECJ decided that EU law takes priority over any
national provision which clashes with it.
c. This is a wrong answer. The question of damages was not raised in the Costa case. It was
the Francovich case which established the principle of State liability.
2. What happens if there is a conflict between EU law and national law enacted after the entry
into effect of the Treaties for the relevant Member State?
a. The later national law will take priority.
b. The conflict must be settled according to the legal jurisprudence of the Member State.
c. EU law prevails.
a. This is a wrong answer as was made clear by the ECJ in Costa v ENEL.
b. This is a wrong answer as it is not a matter to be decided by the law of the Member State.
The EU has established a ‘new legal order’ (Costa v ENEL) and such matters are now subject
to EU law.
c. This is the correct answer. It is expounded in the ECJ’s judgment in Case 6/64 Costa v
ENEL
3. What argument was put forward in Case 106/77 Simmenthal as to why the Italian statute
could not be set aside in favour of EU law by the referring court?
a. Only the Italian Constitutional Court could set aside the statute.
b. Only the Prime Minister of Italy could set aside the statute
c. Only the Italian Parliament could set aside the statute
a. This is the correct answer. The argument was rejected by the ECJ when it said that every
national judge must apply EU law in its entirety even where it conflicts with a provision of
national law.
b. This is a wrong answer. The Prime Minster of Italy has no such powers.
c. This is a wrong answer. National parliaments can repeal national legislation but have no
power to set it aside.
4. ‘Under the terms of the Act of 1972 it has always been clear that it was the duty of a UK
court, when delivering final judgment, to override any rule of national law found to be in
conflict with any direct enforceable rule of Community law’. In which case did Lord Bridge
make this statement?
a. Case 42/74 Van Duyn
b. Case 152/84 Marshall
c. Case C-221/89 Factortame (No 2)
a. This is a wrong answer. This case concerns the direct effect of directives and is not the one
in which Lord Bridge made this statement.
b. This is a wrong answer. This case concerns the direct effect of directives and is not the one
in which Lord Bridge made this statement.
c. This is the correct answer.
5. Why has the acceptance of supremacy of EU law over national law proved a challenge for
Germany?
a. Germany is a dualist country and therefore Germany has a greater difficulty than monist
countries to recognise the principle of supremacy of EU law.
b. The German Federal Constitutional Court (BVerfG) wishes to guard its status as the
highest court in Germany in respect of constitutional matters.
c. The BVerfG has concerns about the protection of fundamental rights in EU law and reserve
to itself ultimate jurisdiction to review the validity of EU acts and, to declare any EU ultra
vires act inapplicable in Germany.
a. This is an incorrect answer. Many Member States of the EU, which are dualist countries,
have no difficulty in recognising the principle of supremacy of EU law. For example
Luxembourg, a dualist country and an original Member of the Community, accepted the
reasoning of the ECJ in Case 6/64 Costa v ENEL and recognised the supremacy of EU law
based on the peculiar nature of the EU legal order.
b. This is an incorrect answer. The BverfG is and will remain (unless the German
Constitution is changed) the highest court in Germany in respect of constitutional matters.
c. This is the correct answer. The BVerfG has attributed to itself three different review
functions with regard to EU law, i.e., the competence to review whether EU law is
compatible with fundamental rights enshrined in the German Constitution, the competence to
review whether Union institutions and bodies have been acting within the limits of powers
granted to them under the Treaties and thus do not jeopardise the constitutional rights of
German inhabitants; and, the competence to review whether EU legal acts are compatible
with the constitutional identity of the German Constitution.