IntroductionEach of the member states of the European Union have a constitution of some sort; whether it's written or otherwise. Most of them have a written constitution (with the United Kingdom being one of the few who doesn't), and this can cause a great many problems when it comes to EU supremacy if it in any way conflicts with their constitution. Although one of the conditions of membership of the European Union is that member states give priority to EU legislation over their own, many were (and still are) unwilling to surrender the authority of their own law. The following essay will explain what is meant by the concept of supremacy of the European Union, then go on to examine the importance of the constitution in Germany and France and their contrasting reactions of the governments and court systems to European supremacy. Finally, these will be compared to the constitution and reactions here in the UK.
SupremacyThe idea of the supremacy of EU law stems from the fact that in certain situations, the constitution and laws of the member state may conflict with those of the EU. When this happens, the member state in question is meant to ignore their own National laws and let EU law take precedent. As Foster said, it can be looked at from two angles; that of the Union, and that of the member state. While there is no specific provision of the Treaty on European Union (TEU) which expressly regulates the supremacy of EU law over that of member states, but it is implied in Article 4(3) of the TEU with the fidelity clause. This imposes a duty on all member states to ensure that appropriate measures are adopted to ensure that the obligations of the treaty are observed, as well as a negative duty to refrain from acts which might prevent the achievement of any objective of the treaty. The idea of supremacy as it stands today regarding member states was created and developed through a number of important cases and rulings; the first of which is Van Gend en Loos v Nederlandse Administratie der Belagstingen. Here, a conflict between the national law of the Netherlands and EU law, and citizens would have had no protection if they had to rely on National law. The European Court of Justice held that the treaty in question was meant to protect individual, and therefore the Netherlands had failed to comply with EU law. It was held that individuals in the Community could uphold their rights under Community law in National courts as member states had limited their sovereignty when becoming part of the EU (although these limits were in the range agreed in the EC Treaty), saying that "The Community constitutes a new legal order in international law, for whose benefits the States have limited their sovereignty rights, albeit within limited fields." This was the first time that EU was regarded, if not specifically stated, as superior by the Court of Justice. Costa v ENEL marks the first time that this fact was expressly stated. Here, the issue raised was whether a National court should refer a case to the Court of Justice if Community law may be applicable, or merely use National law. It was held that EU law holds precedent over all contradicting National laws, thus confirming the EU's overall legal supremacy. Regardless of what is held in any case presented or what is specifically stated by the EU, there are still a great many conflicts over their supremacy; especially where a member state's Constitution is concerned.
Germany - The Robert Pattenson State to the EU's Twilight Saga.Germany's Constitution is known as the Basic Law for the Federal Republic of Germany, and has been effect since 1949 (in West Germany; 1990 in a reunited Germany). It holds great importance to the nation as its purpose is to ensure that a political dictator could never again take power in the aftermath of World War II, and to establish a stable Government and parliamentary system. Although Germany were one of the founding members of the EU, membership caused some initial problems with regards to the constitution. Mainly, there was a question of the basic principles of Basic Law being under adequate protection under Community Law. This was further aggravated with the Court of Justice's decision in Internationale Handelsgesellschaft, in which the ECJ held that not even a elementary principal of a National constitution could be used to challenge the supremacy of EU law. Matters are further complicated when the fact that Germany has five separate courts - the ordinary, specialised, social security, labour, and tax - as well as the constitutional courts is taken into account. The Federal Tax Court has already refused to acknowledge the sovereignty of EU law in two cases (1981 and 1986), and in the second case contradicted a ruling of the ECJ. Ironically, this violated the German Constitution, which states that no one shall be deprived of their rightful judge (which in this case was the ECJ). Germany is one of (if not the most) reluctant member state to accept EU sovereignty, challenging Community law whenever the opportunity presents itself, to the point that there is a long running saga of them opposing the EC's banana regime.
France'The Constitution of the Fifth Republic' was adopted in 1958, and established France as a secular and democratic country. The French courts are divided in to two factions, ordinary and administrative, as well as the Constitutional court. Despite the fact that they are all subject to Article 55 of the French constitution (which states that "Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party"), they have had drastically different attitudes towards the integration of EU law. The French ordinary courts had no difficulty in accepting the supremacy of EU law, making Article 267 TFEU (previously Article 234 EC) references to the ECJ and complying with Article 55 of the Constitution. The French Supreme court actually supported EU Supremacy without reference to the constitution due to the direct effect of EU law itself, seen in the case of Cafe Vabre. Here, the article now known as Article 110 TFEU was held to succeed over national statue. Consequently, the lower courts have been seen to follow this example. The French administrative courts, however, take a substantially different approach. In fact, the Supreme Administrative Court, Conseil d'Ã‰tat, has on occasion completely disregarded EU law supremacy or the necessity to make a reference to the Court of Justice. This comes down to one of the French principals of law, acte clair, which states that if a provision of law is clear, there is no need to make reference to a higher court and is merely to be applied. This can be seen in the case of Minister of the Interior v Cohn-Bendit, where it was held that an individual could not rely on directives to challenge the administrative courts. Nevertheless, in more recent times there has been a more accommodating approach when it comes to the acceptance of EU supremacy in the French administrative courts. The two most notable cases on this front are Nicolo, in which the Conseil d'Ã‰tat re-evaluated its view of the supremacy of international law over domestic (chiefly due to Article 55 of the French Constitution), and Boisdet, where a piece of incompatible national law was declared invalid due to Community regulations. In light of the overall acceptance of EU law supremacy, the French constitution was amended in 1992 to include Title 15, Articles 88-1 to 88-7. This deals directly with the European Union and the extent of its supremacy in relation to national law. The only issue with this is that the Articles do not explicitly state whether or not Community law takes precedence over the Constitution, and some recent judgements have suggested that international obligations are not automatically supreme. There is still some debate in literature as to the full extent of this.
The United KingdomThe United Kingdom is one of the few member states of the EU to have an unwritten constitution. Instead our principals are drawn from various sources - written and unwritten - which includes both legislation and common law. Because of this, it is held that "No act of parliament is unconstitutional, for the law of the land knows not the word or the idea". This can make things easier when it comes to implementing any international obligations imposed by the EU, as there is more flexibility of the constitution. The UK take what is known as a 'dualist approach', which means that any law passed by the EU that is not directly applicable (under Section 2(1) of the European Communities Act 1972) does not apply under UK domestic law until there is a piece of secondary legislation to give it effect. Section 2(4) of the ECA also deals with the association between EU law and National law without expressly stating that the former has sovereignty.
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 Foster on EU Law [Fourth Edition], 2013, pg 131, chapter 5.1  Van Gend en Loos v Nederlandse Administratie der Belagstingen  E.C.R. 1  Cafe Vabre,  2 CMLR  Minister of the Interior v Cohn-Bendit  1 CMLR 543  Nicolo,  1 CMLR 173  Boisdet,  1 CMLR 3  English Constitutional History,  S.B. Chimes