Supremacy

It has been argued that the day of nation state is over as Member States are allegedly
too small to run international affairs or complete effectively in world markets1. “United
we stand, divided we fall” – it must have been this motto that the founding Member
States of the European Union had in mind when the first steps were made towards
creating a more closely integrated Europe.
It is open to speculation whether back then the signatories to the EC Treaty were fully
aware of the cost, at which that closer integration will come. One can argue that they
were not as the relationship between EC law and domestic law was not set out in clear
and sufficient detail in the founding Treaties of the EC. On the other hand, vagueness of
the wording of Article 249 of EC Treaty, which provides for direct applicability of EU
Regulations and to which the European Court of Justice (ECJ) later referred in its
landmark judgments giving rise to the doctrine of supremacy 2, may have been a
deliberate choice. It would only have been prudent not to include too manifest
declarations that could alert citizens of the Member States that their governments are
about to ultimately give up sovereignty. Matters like these – eroding sovereignty - are
best to be approached gradually.
No matter by which route – natural evolution or government “conspiracy” – supremacy
of EC law over national law was arrived at, there are in fact generally only two
alternative ways whereby integration is possible. One is federalism, and the other is
intergovernmentalism3.
The concept of federalism is closely linked to the doctrine of supremacy, both of which
refer to a system where there is one central authority to which other entities are
subordinate in some crucial areas, while enjoying autonomy in other areas of lesser
importance. Examples of countries where federalism is the system of governance are
not few, the most prominent being the USA, Canada, Australia, Brazil, India 4. And if we
look at the economies of those countries as a measure of success, all of them, to a
greater or lesser degree, have proved to be successful. Hence, we can conclude that
federalism is a system that functions well at least in economic terms. That, in turn,
implies that the EU’s system of supremacy, which in many respects resembles that of
federalism, should be, and as we can judge by the EU’s average GDP per capita is,
comparably successful.
1
K.Davies. Understanding European Union Law. 2nd edition. London. Cavendish Publishing, 2003. P.33
2
ibid, p.57
3
ibid, p. 17.
4
http://en.wikipedia.org/wiki/Federalism. Last accessed on 9 Jan 2010.

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An alternative way of integration is intergovernmentalism. One of definitions of
intergovernmentalism in the context of the European Union is “a theory of integration
under which the Member States take decisions by co-operation and consensus”5.
Before December 2009 when the pillar-based structure was abandoned by virtue of the
Lisbon Treaty, both integration modes co-existed in the EU, however,
intergovernmentalism prevailed only in Pillar II and Pillar III of the EU, which were of
less fundamental importance than Pillar I. In the past, however, there has been a period
in the 1970s when intergovernmentalism dominated throughout the EU, and that period
was marked by stagnation6.
There are two essential problems with intergovernmentalism7. The first problem is the
tendency of governments to promote their own interests instead of promoting what is
beneficial to all Member States i.e. Europe as a whole. However, one may argue that
Member States will seek their own country’s benefit and to exert their influence in other
ways – through their representatives. The possibility to seek benefit for one’s own
country has, for example, been in theory eliminated in the European Commission where
Commissioner’s are required to pledge under oath to act only in the interest of the
Community.
The second problem with intergovernmentalism is the difficulty to reach agreements in
voting, which impedes efficiency. The Luxembourg Accords, which in 1966 resulted in
diminished application of Qualified Majority Voting (QMV) giving way to unanimity
requirement, is an illustration of how one influential country (France in the person of
President de Gaulle), which favours the intergovernmentalism model, is able to interfere
with a smooth functioning of decision-making mechanisms in the Community and
consequently evolution of the EU, triggering an internal crisis in the EU for the following
two decades8. The problem was later addressed by the Single European Act, the
principal aim of which was to create a common market to enable free trade between the
Member States. Reaching that goal was only possible if legislative activities were
facilitated through limiting application of the impracticable unanimity and extending QMV
to new areas. Notably, the Treaty of Lisbon has extended the application of QMV to
even more policy areas9.

5
K.Davies. Understanding European Union Law. 2nd edition. London. Cavendish Publishing, 2003.
Glossary, xxiii
6
P.Craig, G.Burca. EU Law: Text, Cases and Materials. 3rd edition. Oxford. Oxford University Press.
2003. P. 6
7
K.Davies. Understanding European Union Law. 2nd edition. London. Cavendish Publishing, 2003. P.17
8
P.Craig, G.Burca. EU Law: Text, Cases and Materials. 3rd edition. Oxford. Oxford University Press.
2003. P. 13-14
9
http://europa.eu/lisbon_treaty/faq/index_en.htm#7, last visited on 9 Jan 2010.

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It is, therefore, evident that over decades of existence of the EU, the trend has been to
move away from unanimity in voting, which is characteristic of intergovernmentalism,
and embrace Qualified Majority Voting system as a more efficient modus operandi,
which is in line with the concept of supremacy.
The doctrine of supremacy has also been devised and advocated by the ECJ on the
grounds of effective functioning of the EU. The landmark cases upholding the principle
of supremacy are those of Van Gend en Loos, of Costa, and of Internationale
Handelsgesellschaft. While in Van Gend case, the ECJ did not address the issue of
supremacy of Community law directly, it did say that Community law constitutes a “new
legal order … for the benefit of which the States have limited their sovereign rights,
albeit in limited fields”10. In the Costa case, the ECJ was more specific about why
Community law should prevail over national laws. It said that the subjecting of force of
Community law to subsequent domestic laws would result in “jeopardizing the
attainment of the objectives of the Treaty”11. Naturally, a failure to achieve the aims of
the EU would jeopardize the very functioning of the EU, which once again illustrates the
crucial role that the principle of supremacy plays. Likewise, in the case of Internationale
Handelsgesellschaft the ECJ confirmed that the functioning of Community law would be
inefficient if the validity of Community measures was judged in the light of national law
by saying that “Recourse to the legal rules or concepts of national law [..] would have an
adverse effect on the uniformity and efficacy of Community law”12.
Therefore, the obvious conclusion from evolution of decision-making mechanics (i.e.
move from intergovernmentalism to QMV) and obiter dicta of the ECJ is that the EU
would not be able to function efficiently if the principle of supremacy was not observed.

10
K.Davies. Understanding European Union Law. 2nd edition. London. Cavendish Publishing, 2003. P.56
11
Quoted in P.Craig, G.Burca. EU Law: Text, Cases and Materials. 3rd edition. Oxford. Oxford University
Press. 2003. P.277.
12
ibid, P.279.