"The interaction of supremacy and direct effect through
the case law of the CJEU"
Introduction
Two core doctrines of the European Union (EU) Law are the supremacy of the EU Law over
national legislation and the direct effect of its provisions in the Member States’ national legal
order. There is a close interconnection between these two principles as both have as their
main purpose the universal, homogenous and effective application of EU Law. These two
doctrines, which ensure that national law can be challenged under the scope of EU Law and
that the latter will prevail in case of a conflict between the two, have been described by the
European Court of Justice as “the essential characteristics of the Community legal order” 1.
This essay aims to clarify whether and if so, how these two fundamental concepts are
related and how they interact with each other through the case law of the Court of Justice of
the European Union (hereby “CJEU” or “the Court”) as both are not stipulated in the text of
the Treaties founding the European Union but have been a long-standing judicial creation of
the Court.
In the first part of the essay both doctrines will be defined and explained, whereas in the
second part we will examine if and how there is reciprocal influence between primacy and
direct effect.
Supremacy and Direct Effect of EU Law
The EU is a Union based on the rule of law as it is evident by the Article 2 of the Treaty of the
European Union. Member states and individuals are subjects of and bound by EU Law in
their actions. This became apparent for the first time in the Costa v. ENEL case with the court
stating that a unique legal system was created by the EEC Treaty 2. The rules of this new legal
system became an integral part of the legal systems of the Member States participating in
the Treaty alongside with pre-established national constitutional and legal texts. In areas
where EU Law regulated in a novel manner, conflicts were avoided as Member States had
not provided for particular rules. However, the interaction between EU Law inserted into
national legal orders, made a conflict resulting from contradicting legal rules inevitable 3. The
Court in the Costa case referring to the “terms and spirit of the treaties”, emphasized on the
subjective nature of legal obligations of Member States and made the point of the
regulations being meaningless if supremacy was not safeguarded, thus introducing the
supremacy doctrine of EU Law over national law. In following cases, the Court favored an
absolute primacy of EU Law even over constitutional texts of member states 4 and ruled that
states should not adopt legislation which contradicts (then) community law, introducing the
1
Opinion 1/91, Draft agreement between the Community, on the one hand, and the countries of the
European Free Trade Association, on the other, relating to the creation of the European Economic
Area, [1991] ECR I-6079
2
C-6/64, Costa
3
A. Bogg, C. Costello, A.C.L. Davies, Research Handbook on EU Labour Law, 2016, p. 46
4
C-11/70, Internationale Handelsgesellschaft
“Simmenthal rule”5. Setting this principle in effect, the national judge has an obligation of
applying EU Law in the case of a conflict which cannot be solved by consistent interpretation
of national law6. Primacy despite not being directly mentioned in the Treaties, proved to be
an effective solution for legal conflicts becoming an essential characteristic of EU legal order.
Supremacy versus national law and the direct effect of many provisions of EU Law justified
the autonomy of EU law with respect to national and international law 7 while ensuring the
consistent and uniform interpretation of EU law with only minor exemptions 8 such as
environmental protection9.
Closely related to the principle of Supremacy, the Direct Effect principle is of fundamental
nature to EU Law. Van Gend en Loos was the first case shaping the effect of EU law in
national legal systems. In this case the Court examined whether EU legislation that confers
rights to individual citizens of the EU can be invoked directly before national courts without
being first transposed by a member state domestically 10. Starting from the Van Gend case
the Court asserted that the Treaty was more than an agreement merely creating mutual
obligations. “Vertical”11 Direct Effect can be created by Treaty provisions granting directly
rights to citizens of Member States enabling individuals to enforce a right or obligation
before a national court.
Defrenne v Sabena
Και αυτό με το εργατικο
Horizontal direct effect kai cases.
5
C-106/77, Simmenthal
6
National Sovereignity and the Principle of Primacy in EU Law and Their Importance for the Member
States, January 2013 Beijing Law Review 04(02):71-76
7
C-284/16, Achmea
8
C-409/06, Winner Wetten. However, in this case the Court ruled that this temporary suspension
could not be justified.
9
C-41/11, Inter-Environnement Wallonie; C-379/15, Association France Nature
10
C-26/62, Van Gend en Loos
11
Vertical direct effect can be defined as allowing individuals to invoke provisions of EU law against
the state
