Principle of Supremacy

PRINCIPLE OF SUPREMACY

The supremacy (sometimes referred to as primacy) of EU law is a principle, by which the law of the EU member states, that conflicts with legal acts of the European Union, must be ignored by national courts so that the EU law can take effect. The legal doctrine emerged from the case law of the Court of the EU through a number of decisions, the first of which was the famous Costa vs E.N.E.L. case (ECJ 6/64).

In Costa vs E.N.E.L. case, Mr. Costa was an Italian citizen opposed to nationalization of the energy sector. Because he had shares in a private corporation subsumed by the nationalized electricity company, E.N.E.L., he refused to pay his electricity bill in protest. In the subsequent suit brought to Italian courts by E.N.E.L., he argued that nationalization infringed EU law on the State distorting the market. The Italian government believed that this was not even an issue that could be complained about by a private individual, since it was a national law decision to make.

The Court of the EU disagreed with the Italian government. It ruled that EU law would not be effective if Mr Costa could not challenge national law on the basis of its alleged incompatibility with EU law. More specifically, it declared that:

“It follows from all these observations that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question”.

The principle of supremacy of the EU law over the national law is today a widely accepted fundamental principle. It is basically a rule to resolve conflicts between legislation of different sources, and more specifically between EU and national legal acts. According to this rule, the conflict, the national courts must always resolve this conflict in favour of EU rules, regardless of their level or source. More importantly, EU law cannot be superseded even by national constitutions, as the CEU has declared in the InternationalesHandelsgesellschaft case (ECJ 11/70).

PRINCIPLE OF DIRECT EFFECT

Direct effect is the principle of EU law, according to which certain legal provisions of EU law, under specific conditions, confer rights on individuals, that the latter can invoke before national courts and those courts are bound to recognize and enforce.

Not explicitly stated in any of the EU Treaties, the principle of direct effect was first established in relation to provisions of those treaties by the Court of the European Union in Van Gend en Looscase (ECJ 26/62). Direct effect has subsequently been loosened in its application to treaty articles and the ECJ has expanded the principle, holding that it is capable of applying to virtually all of the possible forms of EU legislation, the most important of which are regulations.

In order for an EU law provision to produce direct effect, namely to be invoked by individuals before their national courts, it must be:

Clear and precise, leaving no room for misinterpretation or many interpretations.

Unconditional, meaning that the member states are not required to act, in order for this provision or act to have legal effects, and

Capable of conferring rights to individuals, barring legal provisions which are irrelevant to rights of individuals.

From the above it can be concluded that, as a rule, Treaty provisions and Regulations produce direct effect, but Directives do not, because their provisions are not unconditional.

PRINCIPLES OF CONFERRAL, SUBSIDIARITY AND PROPORTIONALITY

(art. 5 TEU)

The principle of conferral is a fundamental principle of EU law. According to this principle, the EU is a union of member states, and all its competences are voluntarily conferred on it by its member states. The EU has no competences by right, and thus any areas of policy not explicitly agreed in treaties by all member states remain the domain of the member states, and the EU cannot legislate in those areas.

The principle of proportionality regulates the exercise of powers by the European Union. It seeks to set actions taken by the institutions of the Union within specified bounds. Under this rule, the involvement of the institutions must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the content and form of the action must be in keeping with the aim pursued.

The principle of proportionality is laid down in Article 5 of the Treaty on European Union.

Finally, the principle of subsidiarity is also fundamental to the functioning of the EU, and more specifically to European decision-making. In particular, the principle determines when the EU is competent to legislate, and contributes to decisions being taken as closely as possible to the citizen.

The Treaty of Lisbon has considerably strengthened the principle of subsidiarity by introducing several control mechanisms in order to monitor its application.

The principle of subsidiarity aims at determining the level of intervention that is most relevant in the areas of competences shared between the EU and the Member States. This may concern action at European, national or local levels. In all cases, in which the EU shares competence with the member states (art. 4 TFEU), the EU may only intervene if it is able to act more effectively than Member States.

Three criteria aim at establishing the desirability of intervention at European level:

Does the action have transnational aspects that cannot be resolved by Member States?
Would national action or an absence of action be contrary to the requirements of the Treaty?
Does action at European level have clear advantages?

The principle of subsidiarity also aims at bringing the EU and its citizens closer by guaranteeing that action is taken at local level where it proves to be necessary.

Subsidiarity and proportionality are corollary principles of the principle of conferral. They determine to what extent the EU can exercise the competences conferred upon it by the Treaties. By virtue of the principle of proportionality, the means implemented by the EU in order to meet the objectives set by the Treaties cannot go beyond what is necessary.

The Union can therefore only act in a policy area if:

the action forms part of the competences conferred upon the EU by the Treaties (principle of conferral);
in the context of competences shared with Member States, the European level is most relevant in order to meet the objectives set by the Treaties (principle of subsidiarity);
the content and form of the action does not exceed what is necessary to achieve the objectives set by the Treaties (principle of proportionality).

The Treaty of Lisbon innovates by associating national Parliaments closely with the monitoring of the principle of subsidiarity. National Parliaments now exercise twofold monitoring:

they have a right to object when legislation is drafted. They can thus dismiss a legislative proposal before the Commission if they consider that the principle of subsidiarity has not been observed.
through their Member State, they may contest a legislative act before the Court of Justice of the EU if they consider that the principle of subsidiarity has not been observed.