A study of the national courts reaction to the doctrine of supremacy of European law

Abstract

The concept of supremacy of a law not being the law of the same country which promulgated it has always fascinated me; a country's sovereignty and its capacity to promulgate legislation according to the will of the people and without restrictions should always be paramount. The Constitution should always be considered to be the supreme law of that country; however the doctrine of supremacy of European Union law challenges this theory. The objective of this dissertation is that of focusing on the doctrine of supremacy of European Union Law and examine Member States' reaction towards the same. The concept of supremacy is first examined, scrutinizing its origins and development. Next, the reaction of those mostly affected by the doctrine, Member States is being explored. Countries are divided according to what extent they have accepted the doctrine, and in what ways. The examination is divided in four. It is very difficult to divide the countries in categories since in numerous cases, countries fall under two different categories. Member States which have accepted the doctrine to the full are the first to be examined. Here, countries have accepted the doctrine on the basis of the acquis communitaire of the European Union. The focus is Belgium, since it has always been viewed as the Member State which easily accepted the doctrine and its ramifications according to the same reasoning of the European Union. Next, the study focuses on those Member States which accepted the doctrine on the basis of a provision which already exists in their Constitution. Each Member State provision is thoroughly examined and analysed through case law. Within the same chapter, Member States which had to adopt legislation in order to accept the doctrine are also studied. Reference is made to a number of judgements to show whether in practice, such Member States have actually accepted the doctrine to the full. The fourth chapter, which is the most extensive one, deals with those Member States which did not accept the doctrine to the full since they insisted on a number of reservations. Reference is made to numerous judgements which show the Member States' frame of mind and the reason for it not accepting the doctrine to the full. Finally, the study scrutinizes those Member States which although on paper, seem to have accepted the doctrine, a conflict between European Union Law and their national law in practice has never arisen. Case Law regarding international treaties is used as a benchmark in order to evaluate what the Member State's reaction would be should a conflict arise. Member States' adopted legislation is analysed, and in those cases where judgements are inexistent, speculation as to what the Member State's reaction would be in case of such a conflict is resorted to. The study is concluded by bringing together all the knowledge collected throughout the research in an attempt to capture the Member States' reaction to the doctrine of supremacy.