Question

Consider how the Court of Justice’s argument for the supremacy of EU law tempers traditional views of international law implementation and the principle that later laws overrule previous laws.

Answer guidance

This question requires you to consider the reasons for the supremacy of EU law according to the CoJ and to explain the consequences of this supremacy on previous held or valid international law principles. In your answer you need to outline the view of the CoJ or its grounds for stating that EU law should be supreme over the law of the Member States. The case law on supremacy should include, notably Van Gend en Loos (26/62), Costa v ENEL (6/64), and Simmenthal (106/77), from which it is clear that EU law is assumed to be an autonomous legal order which is related to international law and national law but nevertheless distinct from them. In the Factortame case (C-213/89), the Court of Justice, building on the principle laid down in Simmenthal, i.e. that a provision of EC (now EU) law must be implemented as effectively as possible, held that a national court must suspend national legislation that may be incompatible with EC (now EU) law until a final determination on its compatibility has been made. In the case of doubt national law should be suspended.

The question then requires you to compare and contrast this view with the usually traditional relationship between international law and national law and the generally accepted principle that a later rule overrules a previous law. The answer should thus focus on the new legal order created by the founding of the Union which has upset or altered traditional views. After outlining the theories of incorporation: monism and dualism you should make clear the EU legal order, as a new legal order, does not conform to this strict division. For example, Treaty Articles and certain forms of Union legislation, e.g. Regulations, are not transformed in the national legal orders to have validity but are directly applicable, see Art 288 TFEU. Member States which previously had conformed to the dualist approach did not in fact transform these types of legislation into the national legal orders but instead simply acceded to the Community (now Union) and adopted Treaty Articles and Regulations automatically; see e.g. the UK and Germany. In addition to this, other forms of EU law, whilst not directly applicable, can also have affects in the Member States without transformation in certain circumstances. See the Court of Justice ­development of the doctrine of direct effects in the cases of Van Gend en Loos (26/62), Van Duyn (41/74), and Grad (9/70).

The traditional view that the later law will prevail was not just limited to an express overrule or inconsistency but also to the implied overruling in cases of inconsistency, whether intentional or not. Implied repeal of earlier law was recognised in both common law and civil law jurisdictions. The case law of Van Gend en Loos (26/62), Costa v ENEL (6/64), and Simmenthal (106/77), noted earlier, contradicts this form of repeal in the EU legal order and which must now be adopted in the Member States. When in conflict, EU law is supreme regardless of whether it is later or earlier than the national law. Therefore, the principle that later laws overrule earlier laws may still be valid domestically but it is now possible for an earlier EU law to overrule a later national law; see e.g. the case of Marleasing (C-106/89) in this respect.