To determine this it is necessary to look back at the origin of the EU where Europe was devastated by war, economically, politically, and socially. In a desire to attain some form of harmony in order to bring peace and to rebuild Europe the move towards integration of the European countries was started. Thus one could state that in putting together the union the concept of primacy which also know as supremacy and the principle of Direct effect played a major role in doing so. Which was initially based purely on trade and commerce but gradually developed into a political socio-economic entity. Mainly because of the four freedoms and the general principles together with the charter. Hence, one could argue that these were the stepping stones in seating constitutional doctrine that continued to foster and function as the central umbrella that governs the whole of Europe.
The fact that supremacy was not always present in community law. Is a clear indication that Eu Treaties were similar to other international treaties but the Eu treaties were able to be interpreted in different forms. The European Union had been regarded as a Sui Generis new legal order. This was further affirmed in the case of Van Gend en Loos, where the courts held that the EU represents a new legal order in international law, where member states have limited sovereign rights within limited fields. Further, the courts recognized the principle of direct effect implicitly thus rejecting the dutch claim that it was merely another standard international treaty. Moreover, in Costa v ENEL, it was expressly stated that the member states have accepted permanent restriction to their sovereignty rights and had transferred their rights to the Eu. Thereby creating a body of law binding their national and themselves. This basically shows that whenever there is a clash between community law and national law, community law would prevail. This objective was specifically highlighted in Article 4 TFEU, which called for uniformity of EU law.
Nevertheless, the necessity of supremacy together with direct effect was required to establish a hierarchy of laws to resolve any clashes of law. Since if community law were to vary from member state to member states its effectiveness and uniformity would have been undermined. Therefore the doctrine of supremacy entails that where there is a clash between community law and national law, community law would prevail. Which allows legal certainty and uniformity across the member states. Thereby strengthening the integration within the Eu. Thus it is a clear indication that through the doctrine of supremacy there is a clear certain undertaking that community law should remain dominant over the member states.
One could state that the doctrine of supremacy was initially developed through judicial activism. Which was later implicitly recognized in Van Gend en Loos. It was finally recognized statutorily in 2007 by the EU parliament by way of the Declaration attached to the Treaty of Lisbon. Moreover, the statements made by the Opinion of the Council of Legal Service 2007, illustrates that supremacy is not a treaty created doctrine, but is created by the case-law of the ECJ.
In fact, the concept of primacy was taken further in Internationale Handelsgesellchaft, the held doctrine can act retroactively over all forms of national law. Which at the same-time expanded the range of the European legal order. Thus it is a clear indication that the ECJ has continued to show its dominance and calling community law to be supreme over a constitutional issue is in fact a major step to show that the law had to apply uniformly in each and every member state. Thus one might argue that through supremacy and Direct effect the union makes sure that the law is applied equally to all member states and thereby maintaining some form of rule of law across the European Union. Which is a major factor as to why the union is successful.
Moreover, the Simmental No 2 court held that even a lowly court of the first instance had a duty to set aside national law to pave way for community law to take precedent. One could state that Simmenthal basically extended the scope of the EU. Interestingly this stance was extended in Commission v France, where the court held community law would apply to even inapplicable legislation. The Zenith of Eu supremacy was seen in Factor-tame No2 1994 where the ECJ set aside a British Act of parliament. This meant that even though parliamentary supremacy was essentially thought to have been the fabric of Uk law or rather kings law to be God’s law the European union disregarded it in the case of Factor-tame.
Further, the doctrine of supremacy was extended by Factor-tame No 3 where the court introduced the doctrine of state liability, where the court held that if a member state was to breach an EU obligation. The State had to pay compensation. This was further supplemented by the Charter, which following Fransson and Melloni set a benchmark for the protection of human rights. This vigorous enforcement of EU law by the ECJ set it at the four front of a member state legal system, enabling the citizens a guarantee of the protection of their EU rights irrespective of the state. Thus one could state that all the above case law points down to one fact that is the rapid shift in the evolution of supremacy and an expansion, which demands that national law is in line with EU law and increment of enforcement procedures.
Thus, it was necessary to facilitate this concept of supremacy and to invigorate the rights of citizens court created the doctrine of direct effect. Together the doctrine of direct effect and supremacy requires national courts to apply EU law at the suit of individuals in priority over any conflicting national laws. Making sure that there is no room for any conflict between the national laws and community laws and that the laws would be applied uniformly in all states. Also to reduce the caseload from the ECJ and gave citizens a more expedient and accessible way to vindicate their Eu rights.
One could consider Direct effect and Supremacy to work hand in hand because they are interdependent on each other because without Direct effect, Supremacy wouldn’t work and likewise. Therefore, one could state that Direct effect and supremacy lies at the heart of the Eu and plays a major role in the integration of the EU. Thereby maintaining the Rule of law throughout the Union because there is no army to control the states but merely the general principles together that keep the union afloat and stable.
However, despite the Eu claiming its dominance over the member states the expansion of EU supremacy has not been without significant resistance by the member states. Hence, Horsepool has identified that national courts have accepted supremacy in a qualified manner, below the standard envisioned in Costa. As seen by the case law developed in the UK and Germany. Another factor to oppose the dominance of the EU is mainly based on geopolitics. Further, the ability of the member states to challenge the dominance of the Eu is a clear illustration of them trying to make the Eu a flexible entity.
Nevertheless, even though there is room for conflict but despite the conflict, it doesn’t go away from the concept of supremacy. Therefore, it is quite clear that there is room to challenge the dominance of the EU and even though it still remains that if there is a conflict between community law, community law would prevail the EU will not intervene in purely internal situations, cultural practices of the Member States, Article 45(4) TFEU allowing member states the ability to restrict migrants working in the public sector and when interpreting EU law. Clearly shows that it necessarily need not prevail over all matters but it still stands tall as it plays a major role in the integration. Thus one could state that even though there is room for inconvenience chances of it being a major issue is very slight.
Further, the UK’s exit from the EU(31st January 2020) and also from the common currency policy introduced in the treaty of Maastricht. Therefore it can be concluded that national sovereignty has not been violated per se but rather limited and restricted paving the way for supremacy of Eu law to attain the ultimate purpose. That is working towards one Europe and maintaining law and order throughout the union through uniform and fair application of the law.