Supremacy or Primacy of EU Law—(Why) Does it Matter?

• Date: 01 November 2011
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00560.x
• Published date: 01 November 2011
• Author: Matej Avbelj

eulj_560744..763

Supremacy or Primacy of EU

Law—(Why) Does it Matter?

Matej Avbelj*

Abstract: Even 50 years on the principle of supremacy or primacy is still surrounded with

ambiguity, which is apparent already on the level of semantics. The principle has not

carried a single name, but three. This paper argues that a disparity in the denomination of

the principle amounts to much more than semantics. It exhibits conceptual differences.

Different conceptualisations of the principle of primacy or supremacy entail different

models of structural principles of EU law: the hierarchical, the conditionally hierarchical

and the heterarchical model. These are no mere theoretical constructions; rather they have

influenced concrete practices of EU law, including the most recent Kücükdeveci case as

well as the Lisbon decision of the German Constitutional Court. While none of the three

models has yet found an unequivocal and conclusive endorsement in the EU practice, there

are compelling theoretical and practical reasons for which one of them should be preferred

over the others. Whether EU law has supremacy or primacy therefore matters.

I Between Semantics and Conceptual Differences

It has been almost five decades now since the European Court of Justice (ECJ) laid

down the so-called principle of supremacy of EU law. However, even after all this time

the principle continues to be surrounded with a considerable degree of ambiguity. This

is visible already on the level of semantics. The principle has carried not a single name,

but three. Not a small number of legal commentators have consistently addressed it as

supremacy; the majority has referred to it as supremacy or primacy, using both labels

interchangeably; while the minority of scholars has stuck to the language of primacy.

This disparity in the denomination of a fundamental principle of EU law would be of

little interest, was it not so strongly entrenched and simultaneously so much at odds

with the actual jurisprudence of the ECJ. There have been only two judgments in which

the ECJ has employed the language of supremacy: the Walt Wilhelm1and the Fratelli

* Assistant Professor of European Law, Graduate School of Government and European Studies, Kranj,

Slovenia.

1Case 14/68, Wilhelm v Bundeskartellamt [1969] ECR 1, para 5: ‘in conferring on a Community institution

the power to determine the relationship between national laws and the Community rules on competition,

confirms the supremacy of Community law’. The term ‘supremacy of Community rules’ can be found

among the keywords as well. The term ‘supremacy’ also appears among the keywords in the Case 93/71,

Leonesio v Ministero Dell’Agricultura e Foreste [1972] ECR 287, but not in its text.

European Law Journal, Vol. 17, No. 6, November 2011, pp. 744–763.

© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

Variola case.2Yet, even in these cases the word supremacy appears only in the English

translation. In other language versions, as indeed in the ECJ’s case-law in general, the

principle is addressed as primacy.

This discrepancy between the language used by the legal commentators and the ECJ

combined with terminological disparity among the legal commentators themselves calls

for explanation. Is it only about semantics? Does it mean that different actors only

dress up in different terminological garbs what is essentially one and the same principle?

Or is there something more to it? Is it that the difference is not just in the name, but in

the concept itself? Do different legal actors use uneven terminology because they

understand the EU legal structure differently? If it is the latter, what precise conceptual

distinction then lurks behind the various denominations of primacy, and most impor-

tantly, does or could it have any practical consequences for the functioning of EU law?

This article will, first, argue that the unsynchronised linguistic approach to

supremacy or primacy on a closer reading indeed goes beyond semantics and exhibits

a conceptual difference. Differences in the linguistic conveyance of the principle tend to

presuppose its different nature, which in turn defines the principle’s scope and conse-

quences. This comes, however, with further effects. Disparate conceptualisation of the

principle affects all other structural principles of European integration:3all those legal

norms and principles that constitute, enable and provide for a specific way that the

overall legal structure of integration may function. In other words, different concep-

tualisations of primacy or supremacy entail different models of structural principles of

EU law.

It will be, secondly, demonstrated that these different models of structural principles

of EU law are no mere theoretical constructions, rather their presence and influence can

be clearly discerned in practice, national and supranational. Whether the EU law is

supreme or has primacy over national law therefore matters. Examples taken from the

national constitutional revision process in one of the new Member States as well as

from the ECJ and national constitutional courts’ case-law will serve to substantiate this

point. It will be argued, in conclusion, that while none of the competing models of

structural principles has yet found an unequivocal and conclusive endorsement in

practice, there are compelling reasons why one of them should be preferred over the

others.

II Three Models of Structural Principles of European Integration

The principle of primacy or supremacy is marked by its four defining features: etymol-

ogy of the principle, its nature, scope and consequences. The etymology of the principle

exposes different forms in which the principle has been conveyed linguistically. The

nature of the principle affects two sets of relationships. On the one hand, it determines

the quality of the relationship between the EU and national law, namely the absence or

presence of hierarchy and conditionality among the two. On the other hand, it also

defines the rapport between the principle of primacy or supremacy and the remaining

structural principles, which can range from subsumption and conditionality to autono-

mous functioning. The scope of the principle identifies the number and type of EU legal

2Case 34/73, Fratelli Variola v Amministrazione delle Finanze [1973] ECR 981, para 15 that emphasises the

‘fundamental principle that the Community legal system is supreme’.

3P. Eleftheriadis, ‘Begging the Constitutional Question’, (1998) 2 Journal of Common Market Studies 255,

257.

November 2011 Supremacy or Primacy of EU Law

745

© 2011 Blackwell Publishing Ltd.