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Primacy of EU law (precedence, supremacy)

The principle of the primacy (also referred to as ‘precedence’ or ‘supremacy’) of European Union (EU) law is based on the idea that where a conflict arises between an aspect of EU law and an aspect of law in an EU Member State (national law), EU law will prevail. If this were not the case, Member States could simply allow their national laws to take precedence over primary or secondary EU legislation, and the pursuit of EU policies would become unworkable.
The principle of the primacy of EU law has developed over time by means of the case law (jurisprudence) of the Court of Justice of the European Union. It is not enshrined in the EU treaties, although there is a brief declaration annexed to the Treaty of Lisbon in regard to it.
In Van Gend en Loos v Nederlandse Administratie der Belastingen (Case 26/62), the Court declared that the laws adopted by EU institutions were capable of creating legal rights which could be enforced by both natural and legal persons before the courts of the Member States. EU law therefore has direct effect.

In Costa v ENEL (Case 6/64), the Court further built on the principle of direct effect and captured the idea that the aims of the treaties would be undermined if EU law could be made subordinate to national law. As the Member States transferred certain powers to the EU, they limited their sovereign rights, and thus in order for EU norms to be effective they must take precedence over any provision of national law, including constitutions.
Further examples of cases in which the Court affirmed the primacy of EU law include:

  • Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle fur Getreide und Futtermittel (Case 11/70);
  • Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/77);
  • Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89).

In these cases, the Court clarified that the primacy of EU law must be applied to all national acts, whether they were adopted before or after the EU act in question. Where EU law takes precedence over conflicting national law, the national provisions are not automatically annulled or invalidated. However, national authorities and courts must refuse to apply those provisions as long as the overriding EU norms are in force.

The principle of primacy therefore seeks to ensure that people are uniformly protected by an EU law across all EU territories.
It should be noted that the primacy of EU law only applies where Member States have ceded sovereignty to the EU – in fields such as the single market, environment, transport, etc. However, it does not apply in areas such as education, culture or tourism.