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Primacy

(Photo: EU Commission)

Primacy means that which comes first.

EU law has primacy, and therefore prevails, over national law. Although this it was not determined by the founding fathers of the treaties, it was recognised in revolutionary court decisions from 1963 and 1964 – the van Gend&Loos/NL and Costa/Enel cases. This is analogous to the superiority of federal law over provincial or local state law in states like the USA, Canada, India, Germany, or Russia.

In 1970, the EU Court decided that EU law also prevails over national constitutions (Internationale Handelsgesellschaft case).This principle has still not been accepted by most national high courts. For example, the German Constitutional Court in Karlsruhe does accept the principle in general, but when fundamental rights in the German constitution are touched upon, it calls for equivalent European fundamental rights.

Future

This principle of primacy has been explicitely inserted in Art. I-6 of the EU Constitution which is nmow moved to a footnote in Declaration no 17 to the Lisbon Treaty.

The British government representative has criticised the wording, arguing that all powers come from the member states and not from the new constitution. There is a potential conflict because no single member state, except Ireland, has explicitly accepted the primacy of EU law over its own national constitution.

The Irish Constitution contains the principle of primacy of EU law in its Art. 29.4.10. and repeat it iexplicitely n the proposal to ratify the Lisbon Treaty.

France, Germany, Finland and Portugal mention the EU in their constitutions, but do not accept primacy of EU law over their constitutions.