AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
Supremacy of EU Law: A Comparative Analysis
I BACKGROUND
Supremacy of European Union law is one of four constitutional doctrines in EU
law, which has no formal basis in the original Treaty of European Community.
Nevertheless, it was developed by the European Court of Justice on the basis of its
conception of a “new legal order”. In its landmark case, Flaminio Costa v. ENEL,
there was a conflict between Italian laws on the national electricity monopoly and EC
provisions allowing for the free movement of goods. The ECJ established a clear
hierarchy between EC and national law, stating that: “by contrast with ordinary
international treaties, the EEC Treaty has created its own legal system which, on the
entry into force of the Treaty, became an integral part of the legal systems of the
member states and which their courts are bound to apply”.1 Furthermore, the ECJ
argued that “The precedence of Community law is confirmed by Article 189, whereby
a regulation ‘shall be binding’ and ‘directly applicable in all Member States’. This
provision, which is subject to no reservation, would be quite meaningless if a State
could unilaterally nullify its effects by means of a legislative measure which could
prevail over Community law.”2
II DUALITY OF SUPREMACY OF EU LAW
The doctrine of supremacy of Community law was developed by the ECJ at the
beginning of the 1960s, were more or less accepted by the judiciaries of member
states and by national governments. This doctrine holds that “in case, and to the extent,
1
2
“Flaminio Costa v. E.N.E.L.”, EUR-Lex - 61964J0006 – EN.
Id.
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of irreconcilable results in the application of both legal systems to the same situation,
the conflicting national law of member states becomes inapplicable.”3 In other words,
in cases of conflict, EU law prevails over national law. Crucially, this is true of
Community law of any level: “Treaty Articles as well as secondary European law,
vis-à-vis national law of any level, constitutional law as well as parliamentary statutes,
by-laws, individual administrative acts, and so on.”4
Interestingly, the supremacy doctrine has a characteristic of dualism between
the ECJ and member states. On the one hand, the ECJ persists in complete supremacy
of EU law over national law “since the aim of creating a uniform common market
between different states would be undermined if Community law could be made
subordinate to the national law of various states.”5 On the other hand, most member
states do not truly accept the supremacy doctrine completely. First of all, in most
member states, the conceptual foundation for the acceptance is not the special nature
of EU law developed by the ECJ – a “new legal order”, but their respective
constitutions. In addition, most member states do not regard the supremacy doctrine
as unconditional. Generally speaking, EU law has primacy over national statutes, but
cannot conflict with constitution in each of member states. Lastly, national courts
claim that it is themselves, not the ECJ, retain an ultimate power to rule on the
competence between EU law and national law.
3
Enchelmaier, Stefan, “Supremacy and Direct Effect of European Community Law Reconsidered, or the Use and
Abuse of Political Science for Jurisprudence”, Oxford Journal of Legal Studies, Jun 2003, Vol. 23, Issue 2, p.
281-299.
4
Id.
5
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press, 2007,
p. 344.
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1. ECJ’S PERSPECTIVE
Although the EC Treaty contained no provision about the supremacy doctrine,
the ECJ made unremitting efforts to develop such a doctrine. In the first place, the
Costa decision is the cornerstone of the supremacy doctrine. By insisting on the
conception of a “new legal order”, the ECJ argued that “by creating a Community of
unlimited duration, having its own institutions, its own personality, its own legal
capacity and capacity of representation on the international plane and, more
particularly, real powers stemming from a limitation of sovereignty or a transfer of
powers from the States to the Community, the Member States have limited their
sovereign rights, albeit within limited fields, and have thus created a body of law
which binds both their nationals and themselves.” 6 One thing deserves to be
mentioned is that the ECJ defined EU law as a “new legal order” different from
ordinary international treaties. According to Vienna Convention on the Law of
Treaties, a state cannot be bound by a treaty without its consent.7 However, from the
ECJ’s perspective, member states are bound by EU law automatically as a result of
establishment of EU.
Additionally, in Internationale Handelsgesellschaft mbH v. Einfuhr - und
Vorratsstelle fur Getreide und Futtermittelthe, the ECJ stated that EU law must take
precedence over any conflicting domestic law regardless of the nature of that law. It
has been decided that “the validity of a Community measure or its effect within a
Member State cannot be affected by allegations that it runs counter to either
6
7
“Flaminio Costa v. E.N.E.L.”, EUR-Lex - 61964J0006 – EN.
“Vienna Convention on the Law of Treaties”, United Nations, Treaty Series, Vol. 1155, p. 331.
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fundamental rights as formulated by the constitution of that State or the principles of a
national constitutional structure.”8 Therefore, even national constitutional law cannot
be invoked to challenge the supremacy of EU law. In 1978, the ECJ in
Amministrazione delle Finanze dello Stato v. Simmenthal SpA further developed the
supremacy doctrine by stating that “every national court must, in a case within its
jurisdiction, apply Community law in its entirety and protect rights which the latter
confers on individuals and must accordingly set aside any provision of national law
which may conflict with it, whether prior or subsequent to the Community rule”.9
Consequently, retroactivity of EU law was also recognized by the ECJ.
Furthermore, the Simmenthal decision also addressed the issue regarding
conflict between national law and EU law. Unlike the United States, models of
judicial review in most European countries are concentrated rather than diffuse. That
is to say, it is usually only the Constitutional Court or the Constitutional Council
which is empowered to pronounce on the constitutionality of a national law. On the
contrary, the ECJ decided that “any provision of a national legal system and any
legislative, administrative or judicial practice which might impair the effectiveness of
Community law by withholding from the national court having jurisdiction to apply
such law the power to do everything necessary at the moment of its application to set
aside national legislative provisions which might prevent, even temporarily,
Community rules from having full force and effect are incompatible with
8
“Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel”, EUR-Lex61970CJ0011–EN.
9
“Amministrazione delle Finanze dello Stato v. Simmenthal SpA”, EUR-Lex - 61977J0106–EN.
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requirements that are the very essence of Community law”.10 Thus, based on the
ECJ’s decision, where a conflict between a national law and EU law arises, any
national court must give immediate effect to EU law and rule the national law invalid
without awaiting the prior ruling of the Constitutional Court or the Constitutional
Council.
2. MEMBER STATES’ PERSPECTIVE
Supremacy of EU law is a doctrine developed by the ECJ, however, it is
common knowledge that fiction persists around the EU. Generally, most member
states do not truly accept the supremacy doctrine with only one exception, which is
the Netherlands. By way of an amendment to the Constitution of the Kingdom of the
Netherlands, made in 1963, “self-executing provisions of treaties and of resolutions of
international organizations are binding upon natural and legal persons and have
supremacy over national law, including the Constitution itself, Acts of Parliament and
subordinate legislation.”11 Additionally, Article 66 said that “Legal regulations in
force within the Kingdom shall not apply if this application should be incompatible
with provisions – binding on everyone – of agreements entered into either before or
after the enactment of regulations.” 12 Apparently, for the acceptance of the
supremacy doctrine by the Netherlands, it is not derived from its own constitution, but
from recognition of the special nature of EU law.
10
“Gervais Larsy v. Institut national d'assurances sociales pour travailleurs indépendants (INASTI)”,
EUR-Lex-62000J0118-EN.
11
Joseph Fleuren (2010). “The Application of Public International Law by Dutch Courts”, Netherlands
International Law Review, 57, p. 245-266.
12
J.H.H. Weiler, Martina Kocjan, “Principles of Constitutional law: the Relationship between the Community
Legal Order and the National Legal Orders: Supremacy”, 2004/05.
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(1) The United Kingdom
In the UK, the main problem is that it follows dualist theory on the relationship
between internal and international law strictly. According to this theory, internal and
international laws are two separate legal systems, and accordingly, internal provisions
are applied exclusively between the state’s borders, and cannot intervene in the
international legal system. Similarly, a perfect international treaty would only be
effective at an international level. For it to be applied in a contracting state, it’s
necessary for that state to either adopt legal measures from the treaty into a national
provision or to introduce it through a legal plan that facilitates admission.13 Thus, in
the UK, acceptance of the supremacy doctrine must be based on express constitutional
amendment or other acts of Parliament. In fact, it is the European Communities Act
1972 to give internal legal effect to EU law in the UK. Section 2(1) seems to provide
that all directly effective EU law will automatically be enforceable in UK courts: “All
such rights, powers, liabilities, obligations and restrictions…and all such remedies
and procedures…as in accordance with the Treaties are without further enactment to
be given legal effect or used in the United Kingdom shall be recognized and available
in law, and be enforced, allowed and followed accordingly…”14
Another problem posed for the UK by acceptance of Community Law is the
apparent irreconcilability – the traditional doctrine of parliamentary sovereignty
versus the supremacy of EU law. The constitutional doctrine of parliamentary
13
BrÎndusa Marian, “The Dualist and Monist Theories. International Law’s Comprehension of these Theories”,
Curentul Juridic, The Juridical Current, Vol. 1-2 (2007), June, p. 16-27.
14
Ian Loveland, “Parliamentary Sovereignty and the European Community: The Unfinished Revolution?”
Parliamentary Affairs, Oct. 1996, Vol. 49, Issue 4, p. 517.
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sovereignty essentially holds that “Parliament is the supreme legal authority in the UK
which can create or end any law.”15 In general, UK courts cannot overrule legislation
of the Parliament, and no Parliament can pass laws that future Parliaments cannot
change. Although the 1972 Act created an obligation to construe all national
legislations in a manner consistent with the directly effective provisions of EU law,
the logical difficulty still remains since the 1972 Act is itself only an act of Parliament
like any other. Consequently, provisions of 1972 Act could theoretically be repealed
by any subsequent act of Parliament.
In the long-running Factortame series of cases, the House of Lords accepted the
ECJ’s ruling that “under the terms of the 1972 Act it has always been clear that it was
the duty of a United Kingdom court, when delivering final judgment, to override any
rule of national law found to be in conflict with any directly enforceable rule of
Community law.”16 Nevertheless, the significance of Factortame cases is that the
supremacy of EU law over national law of the UK is only recognized where EU law
has competence over the British legal system. Therefore, if the British Parliament
passes a new law which conflicts with EU law, the national courts have power in
some circumstances to grant a temporary injunction to prevent the UK authorities
from enforcing that law. The “in some circumstances” phrase must be emphasized.17
Actually, the Factortame decision just served as a compromise solution, and in the
15
Lord Irvine of Lairg, “Sovereignty in Comparative Perspective: Constitutionalism in Britain and America”, New
York University Law Review, Vol. 76, Issue 1, Apr 2001, p.1.
16
Factortame Ltd. v. Sectary of State for Transport [1991] 1 AC 603, 658.
17
Harmsen, Robert and Anthony, Gordon. “UK courts and the reception of European Community law”. 1997, In:
UNSPECIFIED, Seattle, WA. (Unpublished).
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UK, supremacy of EU law derives not from the special nature of EU law developed
by the ECJ, but from the exercise of parliamentary sovereignty doctrine.
(2) Germany
Article 25 of the Basic Law for the Federal Republic of Germany provides that
“The general rules of public international law constitute an integral part of federal law.
They take precedence over statutes and directly create rights and duties for the
inhabitants of the federal territory”. 18 Obviously, the conceptual foundation for
acceptance of the supremacy doctrine is Article 25 of the German Constitution, not
the special nature of EU law developed by the ECJ. Most importantly, “the German
courts accept the primacy of Community law in circumstances where there is no
conflict with the German Constitution and no issue about whether the Community has
competence to act.”19
At first, the highest German court refused to recognize supremacy of EU law
without preconditions. In the 1974 Solange I judgment, the Federal Constitutional
Court of Germany ruled that “Article 25 of the Constitution…does not open the way
to amending the basic structure of the Constitution…without a formal amendment to
the Constitution, that is, it does not open any such way through the legislation of the
inter-State institution”.20 Also, the Court maintained that “the part of the Constitution
dealing with fundamental rights is an inalienable essential feature of the valid
Constitution and one which forms part of the constitutional structure of the
18
The Basic Law for the Federal Republic of Germany, adopted on May 23, 1949.
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 362.
20
“Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel”, EUR-Lex
– 61970CJ0011 – EN.
19
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Constitution. Article 24 of the Constitution does not without reservation allow it to be
subjected to qualifications”. 21 As a result, the Court concluded that “in the
hypothetical case of a conflict between Community law and a part of national
constitutional law or, more precisely, of the guarantees of fundamental rights in the
Constitution… the guarantee of fundamental rights in the Constitution prevails as
long as the competent organs of the Community have not removed the conflict of
norms in accordance with the Treaty mechanism”.22
In 1986, in a case in which an EC import licensing system was challenged
despite an ECJ ruling on its validity, the Solange II decision rendered a clash between
EC law and national law over fundamental rights less likely.23 It should nonetheless
be recognized that “the court did not surrender jurisdiction over fundamental rights,
but only stated that it would not exercise that jurisdiction as long as the present
conditions as to the protection of fundamental rights by the ECJ prevailed.” 24
Therefore, the Federal Constitutional Court preserves its final authority to intervene if
real problems concerning the protection of fundamental rights in Community Law
arise.
Furthermore, based on the Maastrichit judgment, the Federal Constitutional
Court made clear that “it would not relinquish its power to decide on the compatibility
of Community law with the fundamentals of the German Constitution.” 25 More
importantly, the Court ruled that the power of review over the scope of Community
21
22
23
24
25
Id.
Id.
“Wünsche Handelsgesellschaft GmbH & Co. v Federal Republic of Germany”, EUR-Lex –61985CO0069 – EN.
W. Roth, “The Application of Community Law in West Germany: 1980-1990’ (1991) 28 CMLRev. 137.
Brunner v. The European Union Treaty, [1994] 1 CMLR 57.
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competence should be excised by itself.26 Consequently, “the German courts regard
themselves as possessing the ultimate Kompetenz-Kompetenz to decide whether action
taken by the Community falls within the scope of Community competence.” 27
Nonetheless, the ECJ holds an opposite opinion that persists in its last word on the
issue of Kompetenz-Kompetenz.
(3) France
In France, the main initial obstacle to the recognition of supremacy of EU law
has been the jurisdictional limitation of the French courts. Under the French
Constitution of 1958, the Constitutional Council is the sole body which has the power
to decide on the constitutionality of legislations. Apparently, France adopts
concentrated model of judicial review. For instance, in Semoules, the Supreme
Administrative Court rejected the supremacy doctrine by ruling that it could not find
the legislation to be incompatible with EU law since it has no power to review the
validity of French legislation.28
However, in Café Jacques Vabres case, the Cour de Cassation, the highest of
ordinary judicial courts, took a different view and decided that when a conflict exists
between an internal law and a duly ratified “international treaty”, the Constitution
itself accords priority to the latter since Article 55 of the Constitution provides that
“treaties or agreements duly ratified or approved shall, upon publication, prevail over
Acts of Parliament, subject, in regard to each agreement or treaty, to its application by
26
Id.
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 363.
28
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 354.
27
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the other party”.29 Therefore, in France, it is clear that the conceptual basis on which
supremacy is accorded to EU law is the Constitution itself, and not the
communautaire reasoning of the ECJ in Costa.30
Later the Nicole decision reconfirmed the supremacy of EU law on the ground
that Article 55 of itself necessarily enables the courts, by implication, to review the
compatibility of statutes with treaties.31 However, the Supreme Administrative Court
did not recognize the primacy of EU law over the Constitution itself. Actually, in
France, Community law is held to rank above statute, but below the Constitution. It is
therefore reasonably clear that the French courts do not accept the supremacy doctrine
over all national law, as stipulated in the ECJ’s jurisprudence. Also, Article 54 of the
Constitution provides the relationship between EU law and the Constitution. It says
that “if the Constitutional Council…has declared that an international commitment
contains a clause contrary to the Constitution, authorization to ratify or approve the
international commitment in question may be given only after amendment of the
Constitution.” Obviously, in a case of conflict between EU law and the French
Constitution, EU law cannot be applied unless the conflict has been removed by a
constitutional amendment.
(4) Italy
As in the case of Germany and France, the acceptance of the supremacy of EU
law in Italy is also based on its own constitution, not the communautaire reasoning of
29
Administration des Douanes v Société ‘Cafés Jacques Vabre’ et Sarl Weigel et Cie, [1975] 2 CMLR 336.
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 356.
31
Raoul Georges Nicolo, [1990] 1 CMLR 173, 177, 178.
30
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the ECJ. Article 11 of the Italian Constitution provides that “…it agrees to limitations
of sovereignty where they are necessary to allow for a legal system of peace and
justice between nations, provided the principle of reciprocity is guaranteed; it
promotes and encourages international organizations furthering such ends.”32
This acceptance, of course, has not been unconditional. In Frontini case, the
Italian Constitutional Court decided that Article 11 cannot give the organs of the EEC
an unacceptable power to violate the fundamental principles of the constitutional
order or the inalienable rights of man.33 Hence, the Italian courts do not accept that
EU law has primacy over its own constitution, and they retain ultimate authority over
the issue of whether EU law infringes fundamental rights. For instance, the Fragd
decision considered that “a Community measure would not be applied in Italy if it
contravened a fundamental principle of the Italian Constitution concerning human
rights protection.”34 Moreover, Frontini was followed in 1984 by Granital, in which
the Italian Constitutional Court ruled that it had the power to adjudicate upon the
basic issue of competence between Community law and national law.35
(5) Ireland
According to the Third Amendment of the Constitution Act, Article 29 (4)
provides that “no provision of this Constitution invalidates laws enacted, acts done or
measures adopted by the State necessitated by the obligations of membership of the
European Communities or prevents laws enacted, acts done or measures adopted by
32
Constitution of the Italian Republic, adopted on Dec. 22, 1947.
Frontini v. Ministero delle Finanze, [1974] 2 CMLR 372, 384.
34
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 364.
35
Granital S.p.a. v. Amministrazione delle Finanze dello Stato, [1984] 21 CMLR 756.
33
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the European Union or by the Communities, or institutions thereof, or by bodies
competent under the Treaties establishing the Communities, from having the force of
law in the State”.36 This constitutional amendment gives complete supremacy to EU
law over national law of Ireland, even including the Constitution itself.
Nevertheless, in practice, the supremacy doctrine is not always be upheld by
Irish courts. In 1989, the Irish Supreme Court enjoined several student groups from
distributing literature regarding the availability of abortion in England since the
distribution of such information violated the Irish constitutional proscription against
abortion. Actually, the injunction conflicted with the free movement of services under
EU law due to recognition of abortion as a service by the ECJ. However, the Court
declined to address this issue – the compatibility of the ban with EU law.37 Therefore,
it seems that in Ireland, EU law does not have primacy over some fundamental
principles in the Constitution.
(6) Poland
Article 90 (1) of the Polish Constitution provides that “the Republic of Poland
may, by virtue of international agreements, delegate to an international organization or
international institution the competence of organs of State authority in relation to
certain matters”. Also, Article 91 (3) provides that “if an agreement, ratified by the
Republic of Poland, establishing an international organization so provides, the laws
established by it shall be applied directly and have precedence in the event of a
36
The Third Amendment of the Constitution Act, 1972.
Cathleen M. Colvin, “Society for the Protection of Unborn Children (Ireland) Ltd. v. Grogan: Irish Abortion
Law and the Free Movement of Services in the European Communities”, Fordham International Law Journal, Vol.
15, Issue 2, 1991, Article 7.
37
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conflict of laws”. Thus, it clearly shows that in Poland, the supremacy doctrine has
been accepted on account of the Constitution itself.
However, neither Article 90 (1) nor Article 91 (3) authorizes delegation to an
international organization of the competence to issue legal acts or take decisions
contrary to the Constitution. Consequently, the Polish courts do not accept the
supremacy of EU law over its own constitution, and also regard national
constitutional rights as a minimum which cannot be questioned as the result of a
provision of Community law. 38 In fact, Polish Constitutional Tribunal expressly
declared that the Polish Constitution has an absolute primacy over Community law,
and it might lead to a situation that all Polish courts, not only Constitutional Tribunal,
will have to disregard some of Community measures as long as they conflict with the
Polish Constitution.39
III THE SUPREMACY CLAUSE IN THE UNITED STATES
The Constitution of the United States created a governmental structure known
as federalism. Federalism refers to a sharing of powers between the federal
government and the state governments. Although the U.S. is not the only nation to
embrace federalism, American Federalism has been described as “the great political
experiment” in representative democracy.40 The Constitution gives certain powers to
the federal government and reserves the rest for the states. Therefore, “while the
Constitution states that the federal government is supreme with regard to those powers
38
Craig, P. and G. De Búrca, “EU Law Text, Cases and Materials (Fourth Edition)”, Oxford University Press,
2007, p. 372-373.
39
Krystyna Kowalik-Banczyk, “Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of
Supremacy of EU Law”, German Law Journal, Vol. 06, No. 10.
40
Gerston, Larry N., “American Federalism: A Concise Introduction”, 2007, M.E. Sharp, Inc.
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expressly or implicitly delegated to it, the states remain supreme in matters reserved
to them. This supremacy of each government in its own sphere is known as separate
sovereignty, meaning each government is sovereign in its own right.”41
Like the EU, there is also a supremacy doctrine in the U.S. legal system. Based
on Article VI, Paragraph 2 of the Constitution, “this Constitution, and the Laws of the
United States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the contrary notwithstanding”. 42 This
Supremacy Clause recognizes only three sources of law as “the supreme Law of the
Land”, and accordingly, its effect is twofold. “The direct effect is that these three
sources of law override contrary state law. The negative implication is that state law
continues to govern in the absence of these sources.”43 For example, the Erie case
ruled that federal courts have no independent lawmaking authority to displace state
law. Rather, they may do so only when acting pursuant to applicable provisions of the
Federal Constitution, Acts of Congress, and presumably, Treaties.44
Though the Supremacy Clause authorizes courts to review and invalidate state
laws that conflict with federal statutes, at the same time, courts must seriously review
the constitutionality of federal statutes alleged to exceed the scope of Congress’
41
Michael C. Dorf and Trevor W. Morrison, “The Oxford Introductions to U.S. Law: Constitutional Law”, Oxford
University Press, Sep 2010.
42
U.S. CONST. art. VI, §2.
43
Clark, Bradford R. “Federal Lawmaking and the Role of Structure in Constitutional Interpretation”, California
Law Review; Jun 2008, Vol. 96, Issue 3, p 699-730.
44
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
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enumerated powers since there is an express textual basis.45 The Supremacy Clause
designates as “the supreme Law of the Land” only those “Laws of the United
States…made in Pursuance” of the Constitution. Therefore, “if a federal statute
satisfies this condition, courts must apply the statute notwithstanding contrary state
law. If the federal statute fails this condition, however, it does not qualify as ‘the
supreme Law of the Land’ and courts remain free to apply state law.”46
In order to apply the Supremacy Clause, courts must necessarily consider and
resolve challenges to the constitutionality of federal statutes. According to Article I of
the Constitution, “the Congress shall have power…to make all Laws which shall be
necessary and proper for carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the United States, or in any
Department or Officer thereof.”47 In fact, federal statutes purporting to displace state
law without a clear direction from Congress, which authorizes the preemption, simply
cannot be regarded as “the supreme Law of the Land” overriding state law.48 “By
expressly conditioning the supremacy of federal statues on their constitutionality, the
Supremacy Clause reassures the states that courts, both federal and state, would keep
the federal government within the bounds of its assigned powers.”49
IV COMPARISON BETWEEN EU AND U.S.
The last part of this paper will focus on the following question: why is the
45
Clark, Bradford R. “Supremacy Clause as a Constraint on Federal Power”, 71 Geo. Wash. L. Rev. 91 (2003).
Id.
47
U.S. CONST. art. I, sec. 8.
48
Pace, Christopher R. J. “Supremacy Clause Limitations on Federal Regulatory Preemption”, Texas Review of
Law & Politics; Fall 2006, Vol. 11, Issue 1, p157-173.
49
Id at 45.
46
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supremacy doctrine really a big problem in the EU, but not in the U.S? As I discussed
before, supremacy of EU law is a fundamental constitutional doctrine developed by
the ECJ, but its implementation in member states is problematic to a certain degree.
On the contrary, in the U.S., relationship between federal law and state law has been
expressly defined by the Constitution, and accordingly, no such dispute exists among
different states. The main reason for the difference concerning acceptance of the
supremacy doctrine is that the U.S. is a federal nation with its own constitution.
Nevertheless, what about the EU? None of official documents is able to describe the
EU in a straightforward and commonly agreed manner.
Despite of long-term debates in international academia, no final conclusion has
yet been reached on the significant issue-the legal nature of the EU. Firstly, federalism
is a powerful normative idea which motivates many of the founding fathers of the
European movement and much of the early scholarship on the EU.50 In addition,
some scholars adhere to the specialty of the EU as an international organization and a
sovereign complex state simultaneously.51 Moreover, some scholars see the EU as an
emerging system of multi-level governance in which national governments are losing
influence in favor of supranational and subnational actors.52 Finally, someone even
argues that the enlarged EU increasingly resembles a neo-medieval empire rather than
a classical type of federal state.53 Certainly, as a matter of political taxonomy, the
50
Felix Kmüpling, “Federalism and Multi-level Governance: Comparing the EU with Other Federal States”,
Director Europe, Forum of Federations.
51
Prof. Karel Klima, “The Constitutional Legal Nature of the European Union”, Workshop Papers for VIIth World
Congress of the International Association of Constitutional Law, No.4.
52
Mark A. Pollack, “Theorizing the European Union: International Organization, Domestic Polity, or Experiment
in New Governance”, Annu. Rev. Polit. Sci. 2005. 8:357-98.
53
Jan Zielonka, “Europe as Empire: The Nature of the Enlarged European Union”, Oxford University Press, 2006.
17
AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
European Union is still a novelty in want of a convincing label.54
For the time being, we can only describe the EU by distinguishing it from
traditional forms. On the one hand, the EU is not a state because it has too little
sovereign power, and its inability to determine autonomously the form and substance
of its own political existence distinguishes it from a state. That’s the reason why the
supremacy doctrine developed by the ECJ is not completely implemented by member
states. On the other hand, the EU is not an international organization because it
possesses too much sovereign power. The sovereign authority it exercises with direct
effect in member states distinguishes it from ordinary international organizations.55
Consequently, member states cannot directly deny the effect of the supremacy of EU
law in their respective legal systems.
Similar to the ECJ, the U.S. Supreme Court has made decisions on the
relationship between federal case law and state case law. However, these decisions are
binding precedents on state courts, in contrast with awkward position which the
supremacy doctrine experiences in member states of the EU. It can thus be concluded
that it’s insufficient to develop the supremacy doctrine, which should be implemented
in all of member states, only by means of the ECJ’s decisions. Since the legal nature
of the EU is uncertain, how could decisions of the ECJ become binding on national
courts of member states? Another reason maybe that most member states of the EU
belong to civil law country, so case law does not have the same force of law as
54
Grimm, Dieter, “European Court of Justice and National Courts: The German Constitutional Perspective after
the Maastricht Decision”, 3 Colum. J. Eur. L. 229 (1996-1997).
55
Id. at 53.
18
AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
statutes. In my opinion, it’s extremely significant to enact a fundamental law of the
EU – European Constitution, in which specifies the legal nature of the EU.
In February 2002, in Brussels, the Convention on the Future of Europe started
and it declared very soon that it would aim at making a comprehensive European
constitution, or at least a constitutional treaty. Unfortunately, after more than three
years’ work, the prevailing opinion is that the “constitution is dead”. One of the
principal errors of the European constitution-making is evident in the ambiguity of the
document regarding its constitutional or treaty character. There are a number of
characteristics of the document indicating that it is partly a treaty, and partly a
constitution.56 Apparently, without clarifying the legal nature of the EU, neither a
constitution nor any constitutional doctrine can be truly developed in the EU.
The last issue I want to discuss is about the future development of the EU.
During its history of more than half a century, the European integration process has
achieved things that had been unconceivable before. Nevertheless, political
integration has not developed as rapidly as the founding fathers imagined it,57 and I
would argue that uncertainty about the legal nature of the EU is the “chief offender”
since relation between the EU and members states is not definite, which severely
impedes the Union to act efficiently.
To dodge the issue about what the EU is may be looked upon as the most stupid
mistake that EU has made. One can image how could the EU work and even develop
56
Podolnjak, Robert, “Explaining the Failure of the European Constitution: A Constitution-Making Perspective”,
Collected Papers of Zagreb Law Faculty, Zagreb Law Faculty, Vol. 57, No. 1, 2007.
57
Szemlér, Tamás, “Future Prospects of the European Union”, Revista de Economía Mundial; 2009, Issue 22,
p127-138.
19
AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
without understanding its nature? It must be admitted that at present, operation of the
EU is more or less a disaster. Let’s take the supremacy doctrine as an example. The
ECJ claims that EU law is supreme over national law including constitutions, however,
member states argue that EU law is supreme as long as it does not conflict with the
constitutions. It’s an absurd situation although one can argue that it’s just a
compromise solution. Nonetheless, compromise means nothing, and the supremacy
doctrine is only law in book, but hardly law in action. In order to have a glorious
future, the first and most important task for the EU is to make clear about its own
legal nature, no matter what it is, an international organization, a state, or whatever.
V CONCLUSION
Although supremacy of EU law is a constitutional doctrine developed by the
ECJ, which is the highest judicial branch of the Union, implementation of this
doctrine in most member states is not satisfactory since they continue to locate the
authority of EU law in the national legal order centrally within the national
constitution, and not in the jurisprudence of the ECJ or in the sovereignty of the EU.
In comparison with the U.S., relationship between federal law and state law is clearly
defined by the Constitution and precedents of the U.S. Supreme Court. The principal
reason which leads to this distinction is uncertainty about the legal nature of the EU,
and thus, decisions of the ECJ are not legally binding on national courts of member
states among the EU.
20
AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
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AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
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AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
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23
AISI ZHANG
J.S.D. Candidate 2014
College of Law
University of Illinois at Urbana-Champaign
Tel. 217-607-4762
azhang10@illinois.edu
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24