Today the European Union (EU) consists of 27 Member States; it reaches from the Atlantic coast of Western Europe all the way to the Black Sea of Eastern Europe. In the European Union, the most important and closest collaboration between the Member States happens via the European Community (EC). The forerunner of the European Community dates back to the 1950s, the European Coal and Steel Community (ECSC). In the aftermath of the Second World War, Europe had seen and reaped the bitter fruits of nationalism and fascism and was keen to initiate a cooperation which would promote political stability and economic growth. The ECSC consisted of six countries, France, Germany, Italy and the Benelux States. The collaboration was not purely economical, instead the purpose of establishing a common coal and steel market was also to promote peace and rebuild the countries including Germany while keeping a close eye on it and creating interdependence among the countries.
The forerunner collaboration which now has grown to a massive one was from the start a supranational organization with its own independent institutions and judicial powers. Why then does the struggle on EC supremacy between the Community and the Member States still exist? What problems, if any, arise from EC supremacy? Firstly, some clarification is in place of what supremacy means; as the word suggests, it means that EC law, both primary and secondary, prevails over national law. In the doctrine, there have been suggestions of differentiating between the words ‘supremacy' and ‘primacy', and the European Court of Justice (ECJ) actually use ‘primacy'. In this paper, no such distinction is made because the majority of scholars use supremacy and also does not distinguish between the two terms, the words are used as synonyms to describe EC law prevalence over national law.
[...] The third and last argument against supremacy arises out of the doctrine of the legal organization of states and public international law: the constitutions of the Member States represent the nature of the states, they can be considered as the legal corner stones or legal cores of a state. Consequently, the powers, granted to the European Community, reach their limits in the legal the constitutions of the Member States constitute. After having had a look at the arguments it would be interesting to know whether or not there exists a solution concerning this “unless struggle” of supremacy. [...]
[...] Sweden At first glance, Sweden seems to have accepted EC supremacy without any controversy whatsoever even though Sweden is a dualistic legal system.[46] There are several rulings where the Swedish courts have set aside national law for Community prevalence or interpreted national law in accordance with Community law.[47] Sweden enacted a law when it became a member of the Union. This law provides that EC law is generally applicable in Sweden if it is decided in the capacity of its powers laid down in the treaties belonging to the Union.[48] It is important to notice that this law also put up limitations to the powers of the Union by stating that only decisions made within the scope of its powers is generally accepted. [...]
[...] Declaration 17 determines that in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law”.[26] As can be seen from this provision the issue is the same as in the TCE: if the Treaty of Lisbon enters into force one day, there would be a lot of unanswered questions such as does the principle of primacy make reference to the non-Community law? [...]
[...] Consequently, the courts of the Member States are granted with the power to review EC law on its conformity with the national constitutions. But doing so, the courts of the Member States have to act in accordance with international obligations to other Member States and in general in accordance with the commitment of good faith observance of international obligations. Last but not least, there is one interesting question left concerning supremacy. It deals with the above mentioned relationship between EU third pillar law and national law: Does EU third pillar law prevail over national law in the sense of supremacy as it is granted to EC law? [...]
[...] Scope and Development of the Principle of Primacy / Supremacy of European Community Law Scope The Treaty of the European Community (ECT) does not contain any single provision, governing the relation between EC law and the national law of the Member States. The only provision, which may be argued to constitute a principle of supremacy but does not explicitly mention the same, is Art ECT. This article inter alia imposes a duty on the Member States, ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community”. [...]
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