The Supremacy of EU Law and Its Reception in The Member States

4.
The Supremacy of EU Law and its Reception in the Member States
Concentrate Questions and Answers EU Law: Law Q&A Revision and Study Guide
(3rd edn)
Nigel Foster
p. 47 4. The Supremacy of EU Law and its Reception in the Member States
Nigel Foster, LLM Degree Academic Director at Robert Kennedy College, Zurich, and Professor
of EU Law Modules, South East European Law Schools' Network (SEELS); Visiting Professor at
University of Saarland and The University College of Northern Borneo
https://doi.org/10.1093/he/9780198853190.003.0004
Published in print: 06 August 2020
Published online: September 2020
Abstract
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes
typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and
flowcharts. This chapter presents sample exam questions along with examiner’s tips, answer plans, and suggested answers
about the supremacy of EU law and its reception in Member States. Both the legal arguments for supremacy and the political
logic are often considered in establishing the reasoning for EU law supremacy. The first question concentrates on the reasons
for EU law supremacy from the point of view of the Union and in the view of the Court of Justice of the European Union (CJEU
(or also abbreviated CoJ)). A general question about the exit process of a state by a Member State in the light of Brexit is
included.
Keywords: EU law, Member States, Brexit, EU law supremacy, CJEU
Are You Ready?
In order to attempt questions in this chapter, you must have covered all of these topics in both your
work over the year and in revision:
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4. The Supremacy of EU Law and its Reception in the Member States
The relationship between the EU and the Member States, which will involve a consideration of the
reasons for the supremacy of EU law before looking at the reception of EU law in some of the
Member States. Some questions, however, may look at these two aspects independently as
suggested in the next heading.
● The reception in one or two or more Member States may be undertaken and examined.
● The legal arguments for supremacy and the political and legal logic may both be considered in
establishing the reasoning for EU law supremacy.
● In the topics noted above, the main cases encountered are very likely to be Van Gend en Loos,
Costa v ENEL, Simmental, International Handelsgesellschaft, Factortame, and then the principal cases
of the particular Member States which may be considered in your course, as highlighted in the
following answers.
● The topic of Brexit may now feature in some University courses but understandably, given the
continuing high degree of uncertainty in the negotiations and outcomes, many may also avoid it at
this stage until things are clearer. Whilst Brexit happened on the 31st January 2020, the future trade
relationship has yet to be agreed. However, one of the Brexit topics is more clearly rooted in the
legal arena and has been found to be justiciable before the Court of Justice.
Key Debates
Debate: the key debate in this area is one that, to a greater or less extent, concerns all of the
Member States.
Simply and essentially, it is, the extent to which the Court of Justice view on the supremacy of EU
law is accepted by the Member States.
p. 48 Question 1
Is it the case that ‘the doctrine of the supremacy of EU law is a logical if not a necessary inference
from EU Treaties’?
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Caution!
■ This is a very cryptic question which may confuse you as to how you go about answering it. The
crucial sentence is posed as a question which, of course, has to be answered. So you have to address
that.
■ Do not then answer this as ‘write all you know about the supremacy of the EU’ and thus simply
write the history or case law development of EU law supremacy. That would be to miss the more
subtle aspects of the question. The annotated tips along the way will make everything clear.
Diagram Answer Plan
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1
Suggested Answer
1 This clearly concerns the now well-established doctrine or principle of supremacy of EU

law.
2
Definition and Treaties’ position on supremacy of EU law
2 A definition of the subject matter of the question is required. You need to state what you
understand by the phrase ‘the doctrine of the supremacy of EU law’.
Supremacy of EU law means quite simply that when it comes to a clash between valid EU law and
valid national law the EU takes priority. The question has suggested that the EU Treaties do not
expressly provide for supremacy, i.e. there is at present no Treaty article which clearly states that
EU law is supreme. If the Constitutional Treaty had entered into force, the supremacy of EU law
p. 49 would have been ↵ expressly stated (in Art I-6). However, it is still the case that by a direct
reading of either of the EU or TFEU Treaties you might not necessarily infer that EU law is supreme.
However, whilst there is no express statement of supremacy in the Treaties, it can be argued that
3
some of the articles of the Treaties impliedly or logically require supremacy. Thus, a conclusion as
to whether EU law supremacy is to be inferred from the Treaties depends upon a consideration of
4
some of their provisions. For example, see: Art 4(3) TEU, the good faith or fidelity clause; Art 18
TFEU, the general prohibition of discrimination on the grounds of nationality; Art 288 TFEU in
respect of the direct applicability of Regulations; Art 344 TFEU, the obligation of Member States to
submit only to Treaty dispute resolution; and Art 260 TFEU, the requirement to comply with
rulings of the Court of Justice. From these Treaty Articles, you could conclude that EU law infers
5
supremacy but cannot state that the Treaty expressly or categorically imposes it.
3 The question suggests that it ‘is the case that it is a logical if not a necessary inference’ and
you have to determine exactly what this cryptic part of the question is demanding and must
address both these contentions.
4 Although the word ‘logical’ appears first I would address the part about the inference first,
because this refers you to the Treaty provisions.
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5 Outline how the Treaties logically provide for supremacy, by reference to the Treaty and
from the jurisprudence of the CJEU in which statements on supremacy are made.
The position of the Court of Justice

It is more through the decisions and interpretation of the Court of Justice (CJEU) that the reasons
and logic for the supremacy of EU law were developed. The CJEU’s view on this is quite
straightforward. From its case law, notably Van Gend en Loos (26/62), Costa v ENEL (6/64), and
Simmenthal (106/77), it is first of all 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.
The Van Gend en Loos case affirmed the Court’s jurisdiction in interpreting EU legal provisions, the
object of which is to ensure uniform interpretation in the Member States. The CJEU held that the
Community (now Union) constitutes a new legal order of international law for the benefit of which
the States have limited their sovereign rights.
Further elaboration of the new legal order in Van Gend en Loos was given in Costa v ENEL. The case
raised the issue of whether a national court should refer to the CJEU if it considers Community
(now EU) law may be applicable or, as was the view of the Italian Government, simply apply the
subsequent national law. The CJEU stressed the autonomous legal order of Community (now EU)
law in contrast with ordinary international treaties. It held that the EEC Treaty has:
created its own legal system which became an integral part of the legal systems of the
Member States and which their courts are bound to apply. By creating a Community of
unlimited duration, having its own institutions, its own personality, its own legal capacity
and more particularly real powers stemming from a limitation of sovereignty or a transfer
of powers from the states to the Community the Member States have limited their
sovereign rights and have created a body of law to bind their nationals and themselves.
p. 50 ↵ The Court also established that Community (now EU) law takes priority over all conflicting
provisions of national law, whether passed before or after the Community (now Union) measure in
question:
The integration into the laws of each Member State of provisions which derive from the
Community, and more generally, the terms and spirit of the Treaty, make it impossible for
the states, as a corollary, to accord precedence to a unilateral and subsequent measure
over a legal system accepted by them on the basis of reciprocity. Such a measure cannot
therefore be inconsistent with that legal system.
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6
That is, a later national law does not overrule an earlier EU law. As additional justifications, the
CJEU also invoked some of the general provisions of the Treaty: Art 5 EEC (now 4(3) TEU), the
requirement to ensure the attainment of the objectives of the Treaty, and Art 7 EEC (now 18 TFEU),
regarding discrimination, both of which would be breached if subsequent national legislation was
to have precedence. Furthermore, the CJEU considered that Art 189 (now 288 TFEU), regarding the
binding and direct application of Regulations, would be meaningless if subsequent national
legislation could prevail. The Court summed up its position:
It follows … that the law stemming from the treaty, an independent source of law, could
not because of its special and original nature, be overridden by domestic legal provisions,
however framed, without being deprived of its character as Community law and without
the legal basis of the Community itself being called into question.
6 These back up the argument that supremacy can be inferred by some Treaty Articles.
Therefore, EU law is to be supreme over subsequent national law.
7
In the Factortame (No 2) (C-213/89) case, the CJEU, building on the principle laid down in
Simmenthal (106/77), 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 Factortame (No 2) case represents another
confirmation that national constitutional practices or rules, in this case the doctrine of
parliamentary sovereignty in the UK, must not be allowed to stand in the way of a Community (now
EU) law right. In the case, it was the clear understanding of the UK national courts that they had no
power to set aside or not apply an Act of Parliament. The CJEU held that even if the Community
(now EU) law rule was still in dispute, the national procedure should be changed so as not to
possibly interfere with the full effectiveness of the Community (now EU) law right.
7 Whilst not strictly required to answer the question, I would suggest adding a paragraph
that EU supremacy applies even in the case of constitutional law.
Overall conclusions on supremacy

The CJEU in the cases of Van Gend en Loos, Costa v ENEL, and Simmenthal, amongst others, has held
p. 51 that EU law supremacy is a ↵ logical conclusion. It can also be inferred from the EU law doctrine
of direct effects that EU law should be supreme both because of the transfer of powers from the
Member States and by having its own law-making machinery. It must, therefore, have precedence
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if the Union is going to work. The voluntary limitation of sovereignty and the need for an effective
and uniform EU law requires supremacy. To give effect to subsequent national law over and above
the Union legal system which Member States have accepted would be inconsistent and illogical.
Looking for Extra Marks?
■ Supremacy in the Constitutional Treaty was toned down for the 2007 Lisbon Reform Treaty
which added a Declaration (No 17) referring to the well-settled case law on primacy as confirmed
by an Opinion of the Legal Service of the Council (11197/07 of 22 June 2007). The declaration on
primacy therefore is still not a bold express statement contained within the Treaties but tucked
away in an oblique reference. The answer needs to reflect this.
■ It is worth mentioning the consequences of a Member State not giving primacy to EU law when
it should have done. Liability on the part of the state will be incurred, as first established by the
CJEU in the Francovich (C-6/90) case and later confirmed in Factortame III (C46 and 48/93).
Question 2
How does the European Communities Act 1972 ensure that EU law which is directly effective or
directly applicable has that status in the UK and prevails over conflicting UK law?
What problems, if any, have been experienced in practice in attaining the aims of the Act?
Caution!
■ Despite the fact that Brexit has now taken place, for this edition of this book, this question has
not been removed because the European Union (Withdrawal Agreement) Act 2020 now preserves
the ECA 1972 as ‘saved Law’. This is because of the transition period, which at present will last until
31st December 2020, but may be extended further. In that time EU law will continue to prevail over
UK law and provisions of the ECA 1972 are still required to preserve the direct effects and
supremacy of EU law over national law in that time. Hence prudence, on my part, leads me to retain
this until the UK’s ultimate exit from the EU law is certain and accomplished. The 1972 will then, of
course, be repealed.
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To return to preparing the answer, for the first part, make sure you do not write a general ‘The UK
in the EU’ answer or wander into a discussion on current UK Brexit discussions. The question
focuses on the legal technicalities.
■ The second part of the question actually requires you to focus on the judicial interpretation and
application of the Act rather than any political discussion about the effects of EU membership on
UK sovereignty, although in view of Brexit this has been toned down.
p. 52 Diagram Answer Plan
1
Suggested Answer
1 This question requires you to consider the legal argument of how membership was
accommodated in the UK legal system and the reception of Community (now EU) law in the
UK courts.
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EU law implementation in the UK is primarily concerned with how the 1972 Act observes and takes
account of such well-established EU law concepts or doctrines of direct effects and supremacy of
EU law and the difficulties in respect of sovereignty.
2
How EU law was incorporated in UK law
2 First, you should look in detail at the Act and how it sets out to achieve its aims.
In contrast to the earlier practice of incorporation of international law treaties which followed the
dualist approach to international law, the ECA 1972 did not reproduce the whole of the Community
Treaties or subsequent secondary Community and now EU legislation as Acts of Parliament. If this
was so, the words of any future UK Act could impliedly override and thus repeal the inconsistent
part or parts of the Treaty, as it would simply have the status of any other UK Act of Parliament.
All prior Community (EU) legislation was adopted by a simple Act of Accession, except for those
Directives which required national law implementation. The Act therefore impliedly recognised the
unique new legal system and is now regarded as a very special form of UK legislation by its attempt
to bind future Parliaments.
3
The ECA sections 2 and 3
3 This is the core of the answer to the first part: taking a detailed technical look at how the
ECA 1972 achieved its aims.
Section 2(1) recognises the direct applicability and thus validity of Community (EU) law Treaty
provisions and Regulations and arguably the doctrine of direct effects. This is termed in the Act as
‘enforceable Community right and similar expressions’. Thus those rights or duties which are, as a
matter of Community (EU) law, directly applicable or effective are to be given legal effect in the UK.
p. 53 It also provides that all ↵ such future Community (EU) legal provisions shall also be given legal
effect and enforced and followed in the UK.
Section 2(4) recognises the supremacy of Community (EU) law and therefore concerns sovereignty.
It states that any such provision and any enactment passed or to be passed (that refers to any Act of
Parliament past or future) shall be construed and have effect subject to the foregoing provisions of
this section. That is a reference back to the entire section, in particular s 2(1), and means any future
Act of Parliament must be construed in such a way as to give effect to the enforceable Community
(EU) rights in existence. This is achieved by denying effectiveness to any national legislation passed
later which is in conflict. This is further controlled by the directions to the UK courts. Section 3(1)
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instructs the courts to refer questions on the interpretation and hence the supremacy of
Community (EU) Law to the CJEU if the UK courts cannot solve the problem themselves by
reference to previous CJEU rulings. This follows the Costa v ENEL (6/64) ruling and is backed up by s
3(2) which requires the courts to follow decisions of the CJEU on any question of Community (EU)
law. Therefore, it can be argued the combination of s 2(1) and (4) with the control of s 3(1) and (2)
achieves the essential requirements of the recognition of direct effects and the supremacy of EU law
for past and future UK legislation.
4
Case law on the ECA 1972
4 By looking at the UK case law on the Act, you can show how it works in practice, i.e. looking
at how the UK courts have interpreted and applied it.
The views of the courts in decided case law are thus now paramount here because the application of
EU law is dependent on the national judiciary.
5
The most important of the earlier cases is McCarthys Ltd v Smith ([1979] ICR 785), in which Lord
Denning MR expressed the view that it was the court’s bounden duty to give priority to Community
law under s 2(1) and (4) of the ECA 1972 in cases of deficient or inconsistent national law, i.e.
unintentional inconsistency. Lord Denning thought that with regard to an express or intentional
repudiation of the Treaty or expressly acting inconsistently, the courts would be bound to follow
the express and clear intent of Parliament to repudiate the Treaty or a section of it by the
subsequent Act. The Court of Appeal ([1981] QB 180 at 199) later confirmed Community (EU) law is
now part of UK law and whenever there is any inconsistency Community (EU) law has priority.
5 Whilst it would be better to concentrate on the latest cases which provide a truer reflection
of the present situation, a brief review of earlier case law demonstrates your more
comprehensive knowledge.
In Garland v BREL ([1983] 2 AC 751), UK and Community (EU) law were regarded by the House of
Lords as clearly inconsistent. A reference was made to the CJEU (12/81), which ruled that
Community law covered the situation in the case. The House of Lords considered themselves bound
in view of the CJEU ruling and ECA 1972 to interpret the national law in such a way as not to be
inconsistent with the UK obligations under Community law. They concluded (obiter) that UK courts
should interpret UK law consistently, no matter how wide a departure from the words of the UK Act
the interpretation needed to be.
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p. 54 ↵ In CR Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise ([2003]

UKHL 7), the House of Lords held that ‘It was the duty of a UK court to construe a statute, so far as
possible, in conformity with European law.’ The case considered the construction of provisions
adopted by the Commissioners which did not conform with the terms of the Sixth VAT Directive
(77/388). Accordingly, the CJEU held that it was necessary to adopt an alternative interpretation
which did conform to it.
Two cases known as R v Secretary of State for Transport, ex parte Factortame Ltd (C-213/89 and
C-221/89) are particularly important cases in respect of the supremacy of Community (EU) law. A
party seeking to rely on Community (EU) law sought an interim injunction against the crown not to
apply a disputed national regulation issued under a UK Act whilst the merits of the case were being
referred to the CJEU. This was something not previously acceptable as courts could not set aside UK
law. The House of Lords considered that if Community law rights are to be found to be directly
enforceable in favour of the appellants those rights will prevail over the inconsistent national
legislation, even if it has been passed later. It was said (obiter) that:
This [s 2(4)] has precisely the same effect as if a section were incorporated into [the
national statute] which in terms enacted that the provisions [of an Act] were to be without
prejudice to the directly enforceable Community rights of nationals of any Member State
of the EEC.
Upon the return of the procedural aspect from the Court of Justice, the House of Lords held that, if a
national rule precludes a court from granting an interim relief, in order to determine whether there
is a conflict between national law and Community (EU) law, the court must set aside that rule: in
effect, to ignore national law. Lord Bridge considered that if the supremacy of Community law over
the national law of Member States was not always inherent in the EEC Treaty, it was certainly well
established in the jurisprudence of the CJEU long before the UK joined the Community. He
concluded that under the terms of the 1972 Act it has always been clear that it was the duty of a UK
court to override any rule of national law found to be in conflict with any directly enforceable rule
of Community law. Therefore, national courts must not be inhibited by rules of national law from
granting interim relief in appropriate cases because it is no more than a logical recognition of
supremacy.
In a 2005 case, R (Jackson) v Attorney General ([2005] UKHL 56), Lord Hope suggested that even an
intentional or express repudiation of EU law might not be followed by the new Supreme Court and
expressed the view that whilst Parliament did not actually say that it could not enact legislation
which was in conflict with Community law, in practice his opinion was that was the effect of s 2(1)
when read with s 2(4) of the ECA 1972.
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p. 55 Conclusions
The view now of s 2(4) ECA 1972 is that it is a direct rule to give priority, rather than a rule of
construction. As far as the House of Lords is now concerned s 2(4) of the ECA 1972 has led to the
modification of the doctrine of parliamentary sovereignty because implied repeal of previous Acts
of Parliament, as far as EU law obligations are concerned, would not be heeded by the courts.
Indeed, in the Metric Martyrs case (Thoburn v Sunderland City Council ([2002] 1 CMLR 50)), the High
Court expressed the view that the ECA 1972 had acquired a constitutional quality which prevented
implied repeal. Whether this overrides the dictum in McCarthys Ltd v Smith ([1979] ICR 785) is open
to question. It remains open for Parliament to expressly repeal the Act. In such a case the courts
would of course have to observe this faithfully. Thus far, the EU Act 2011 merely appears to confirm
supremacy of EU law over the UK, albeit by virtue of the ECA 1972 itself or by any other act which
confirms it.
■ Whilst actually not changing the answer in any significant way, mentioning newer case law
such as R (HS2 Action Alliance Ltd) v Secretary of State for Transport ([2014] UKSC 3), would
demonstrate that you are keeping up to date with case law.
■ If time and space, you could briefly contrast the position of the UK with the courts of other
Member States to show that, judicially, the UK through the ECA 1972 and case law on it has been
able to recognise both the direct effects and supremacy of EU law.
Question 3
How have the courts of Member States, other than the UK, reacted to the Court of Justice’s view on
the supremacy of EU law?
Caution!
■ To be capable of answering this question, you must have at least taken account of the position in
other Member States in your course on EU law. This is not always the case, or the depth of
treatment may vary considerably.
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■ This is a dangerous question as it gives little guidance and allows free range so make sure you
stick to answering the question.
■ Do not write just a small amount about a large number of states, better to do it the other way
round.
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1
Suggested Answer
1 This question focuses on other Member States and how they have accommodated and
accepted EU law.
EU law, of course, applies in all twenty-seven Member States and according to the CJEU is supreme
over all laws in those states. EU law has not, though, been accepted on that understanding in all
Member States.
2
States easily accepting EU law supremacy: Benelux countries
2 Choosing these countries is not dynamic but is a good way of setting the scene and
contrasting with more controversial states if chosen.
A number of states have not experienced any problems so far; see e.g. Luxembourg, Netherlands,
and Belgium.
In Belgium, the constitution was amended to allow for the transfer of powers to institutions
governed by international law (Art 25a). However, Belgium was a dualist country whereby later
laws would prevail over earlier laws including international treaties if simply converted into
national law. The courts in Belgium have no role in respect of judging the validity of international
agreements but accepted Community (EU) law supremacy as if it were a monist country and not by
dependence on a Belgium statute (see Minister for Economic Affairs v SA Fromagerie ‘Le Ski’ ([1972]
CMLR 330)). It was held that in the case of conflict between national law and the directly effective
law of an international treaty, the latter would prevail, even if earlier in time.
3
Reception and judicial acceptance in Germany
3 The states which may have been chosen in EU law courses are often those whose courts
may have been reluctant to accept EU law supremacy. Germany is a prime example.
In Germany, in contrast, some difficulties were experienced, especially in respect of the provision
of fundamental rights in the German constitution (Grundgesetz) and in the Community (EU) legal
order.
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4
p. 57 ↵ Article 24 of the German constitution allows for a transfer of powers and membership of
international organisations and was used to establish membership of the European Communities.
Article 25 declares general rules of public international law to be an integral part of federal law and
to take precedence over national law but it is silent as to the effect of international law on the
German constitution.
4 First, look at the Constitution to see how it regards non-domestic law.
5
The view of the Federal Constitutional Court (FCC) is paramount because of its constitutional
position in the German state.
5 Then consider the judicial reaction, in particular of the Constitutional Courts in those
countries which have such a body.
In the Wunsche Handelsgesellschaft decision ([1987] 3 CMLR 225), the Federal Constitutional Court
accepted that Community recognition and safeguards of fundamental rights through the case law
of the CJEU were sufficient and of a comparable nature to those provided for by the Grundgesetz.
Thus, as long as EU law ensures the effective provision of fundamental rights, the Federal
Constitutional Court will not review EU law. It also stated that it would not be prepared to accept
constitutional complaints from lower courts on this basis. The basis for the decision is not,
however, the inherent supremacy of EU law but the fact that Art 24 of the Grundgesetz allowed a
transfer of powers to the Union and the subsequent accession act obliges the German courts to
accept the supremacy of EU law.
Following these cases there would seem to be no procedural difficulty in getting Union rights at
least considered in the proper forum in Germany. Any court which refuses either to follow a
previous ruling of the CJEU or make an Art 267 TFEU ruling may be subject to the review of the
Federal Constitutional Court for an arbitrary breach of Art 101(1) of the Grundgesetz.
The Federal Constitutional Court held in the Brunner case ([1994] 1 CMLR 57) that the German
Accession Statute to the Treaty on European Union was compatible with the German constitution
and thus rejected claims that it was unconstitutional, although again there was a statement to the
effect that a review function of the Constitutional Court would still be maintained to ensure
Community (EU) law complied with the provision of fundamental rights. This was confirmed in the
Lisbon Judgment (2008) by the same court. The 2010 Honeywell decision (2 BvR 2661/06) by the
FCC, though, held that review could only be contemplated in the most obvious cases, and only after
the CJEU had been given the chance to review the case by a reference from the Federal
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6
Constitutional Court only. The 2011 article by Pavendah and the 2013 article by Giegerich give a
very good overview of the mood swings by the Federal Constitutional Court and its attempt to play a
review role over EU law.
6 Cited in the ‘Taking Things Further’ section at the end of the chapter.
7
Reception and judicial acceptance in Italy
7 As with Germany, consider Italy in the same way as it is also a good state to choose.
In Italy the position both constitutionally and judicially was and is very similar to Germany. Both
p. 58 constitutions allowed a transfer of ↵ power to international organisations but were silent as to

the effect on constitutional law (see Art 11 of the Italian Constitution).
As in Germany, the focus in Italy is on the Constitutional Court. Given that two of the leading cases
on supremacy, Costa v ENEL (6/64) and Simmenthal (92/78), arose from Italy, it should certainly
have been clear to the Italian Constitutional Court what was expected of it. Again there has been a
mixed reaction, also along the lines of the German Constitutional Court.
In Granital SpA v Administrazione delle Finanze ((1984) 21 CML Rev 756–72) the supremacy of
Community (EU) law was accepted on the basis of an interpretation of Art 11 of the Italian
Constitution allowing for the limitation of sovereignty in favour of international organisations,
and by reason of the case law of the CJEU. The case did, however, make the reservation that Italian
law should only be cast aside where directly applicable Community (EU) law exists, similar in effect
to the judgment of the House of Lords in the Duke case ([1988] AC 618).
A later decision in Fragd SpA v Amministrazione delle Finanze ((1990) 27 CML Rev 93–95) suggests
the Italian Constitutional Court is still prepared to review Community (EU) law in the light of the
fundamental rights provision in the Italian Constitution. This stance was confirmed in Admenta v
Federfarma ([2006] 2 CMLR 47) in which the Italian State Council held that fundamental rights, as
protected by Italian law, could not be reviewed in the light of EU law and were therefore to be
reviewed exclusively in the light of Italian constitutional law.
Thus far, this remains the situation in Italy with the possibility for outright rejection of EU law
supremacy.
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8
Reception and judicial acceptance in France
8 And do the same for France which is also regarded as a problematic state.
The French courts are divided into two hierarchies with their own significantly different attitudes
to EU law, despite the fact that both are subject to Art 55 of the French Constitution which is
monist and gives international law a rank above municipal law, but is silent as to the effect on the
Constitution. This is the point that has led to discrepancies between hierarchies.
The courts of ordinary jurisdiction have felt no hesitation in making Art 267 TFEU references to the
CJEU and giving supremacy to Community law on the basis of Art 55 of the Constitution. The
French Supreme Court of Ordinary Jurisdiction, the Cour de Cassation, has in fact gone further and
found for the supremacy of Community (EU) law without direct reference to Art 55 of the
Constitution and more on the basis of the inherent supremacy and direct effects of Community
(EU) law itself. See the Café Vabre case ([1975] 2 CMLR 336), in which Art 95 EEC (now 110 TFEU)
p. 59 was ↵ held to prevail over a subsequent national statute. These rulings have been consistently
followed by the lower courts and reference to either Art 55 of the Constitution or even the decisions
cited here is rarely made (see e.g. Garage Dehus Sarl v Bouche Distribution ([1984] 3 CMLR 452)).
The Supreme Administrative Court, the Conseil d’État, has from time to time completely denied the
supremacy of Community (EU) law or the need to make reference to the CJEU, relying heavily on
the French principle of law, known as the acte clair (see e.g. Minister of the Interior v Cohn-Bendit
([1980] 1 CMLR 543)). The French court held individuals could not directly rely on Directives to
challenge an administrative act. The court declined to follow previous CJEU rulings or make a
reference itself.
However, some cases have demonstrated a much more cooperative attitude on the part of the
French administrative courts. In Nicolo ([1990] 1 CMLR 173), the Conseil d’État reviewed the
supremacy of international law including EEC Treaty Articles and held the latter to take precedence
over subsequent national law, largely on the basis of Art 55 of the Constitution. In Boisdet ([1991] 1
CMLR 3), incompatible national law was declared invalid in the face of a Community (EU)
Regulation. In doing so the Conseil d’État followed the case law of the CJEU. The Rothmans case
([1993] CMLR 253) confirms the supremacy of Community (EU) Directives over subsequent
national law and that public authorities cannot enforce the incompatible national law.
In Dangeville ([1993] PL 535), the Paris Administrative Court of Appeal upheld the ruling of the
CJEU in Francovich (C-6 and 9/90) and imposed a liability to pay damages for the failure to
implement a Community (EU) Directive.
Page 17 of 33
The Treaty on European Union has been declared compatible with the constitution after
amendment to the constitution and has been ratified and thus takes priority over French national
law (Art 88). As a result of that change the French Constitutional Court (Decision 2004/496 of 10
June 2004) has declared that it will no longer review Community (EU) law in the light of the
Constitution, save in relation to express elements, which is taken to mean those protecting
fundamental rights in a way similar to the German Constitutional Court.
However, despite the change to the Constitution and the rules more sympathetic to the supremacy
of EU law, cases taking a less cooperative position are still being decided by the Conseil d’État. In
Compagnie Generale des Eaux (2009), the Court once again confirmed its earlier position of denying
the direct effect of Directives when in conflict with a national administrative act.
p. 60 Summary
A consensus appears to be emerging from the national and constitutional courts that EU law
supremacy is accepted only in so far as it does not infringe the individual rights protection of the
national constitutions, in which case the Constitutional courts will exercise their reserved rights
9
over national constitutions to uphold them over inconsistent EU law. The 2013 article by Komerek
takes a closer look at the position of some of the Constitutional courts in Member States. Only a few
states appear to be accepting EU law unconditionally, such as Belgium. Whether this is a trend
which will continue and lead to an outright rejection is, though, at this stage, unclear.
■ Contrasting the position of the states chosen with the UK would be good, in particular by
highlighting that a seemingly very reluctant state, the UK, despite having now left nevertheless had
a good track record of acceptance, whereas Germany, an enthusiastic Member State, has had
judicial difficulties with full acceptance.
■ Considering one or more of the later eastern European entrant states would be good, if covered
in your course or module of EU law. Poland, Hungary, and the Czech Republic would be good
candidates.
■ Considering one or more of the later Scandinavian states would be good, if covered in your
course or module of EU law. Denmark, Finland, and Sweden would be good candidates.
Page 18 of 33
Question 4
The transfer of power to the EU and control of competence in the EU is now firmly regulated by the
Treaties following the Lisbon Treaty reforms.
Please discuss.
Caution!
■ There is a lot to this question so getting a good structure is key to getting a good mark.
Page 19 of 33
1
Suggested Answer
1 This question aims to get you to look at why and how powers and competences were
transferred both before the Lisbon Treaty came into effect and following.
Introduction and the transfer of powers and competences

2
When the Union was first established, to be able to achieve the goals set for it, the Member States
had to pool their resources in the new entity and transfer some of their sovereign rights to the
Union and its institutions. The Member States provided the competences for the Communities
(Union) to make their own laws, a process as acknowledged by the CJEU in Van Gend en Loos, but
with the proviso that the power transfer or transfer of sovereignty was carried out only within
limited fields. There was not a general transfer of power, which would include the ability to
redefine competences without reference to any other body. The competences have grown hand in
hand with the complexity of the Union and, whilst this transfer of competences should be a clear-
cut process whereby any exercise of these powers by the institutions of the Union can only be
within the terms granted by the Member States, that has not been the case. Further, what is
attributed to the Union by the Member States is necessarily removed from Member States’
competence. In other words, the Member States no longer have competence in the fields
transferred. Therefore, there has been growing concern about the extension of competences
especially where these have not been express, hence the term ‘competence creep’.
2 You should start by looking at how powers were and are transferred from the Member
States to the EU.
3
Division of competences
3 Then explain the meaning of competences and how they are divided into different types.
There is a division of the degree of competences transferred from exclusive to shared and
complementary competences.
Page 20 of 33
Exclusive
The Union enjoys exclusive competences in a few areas only, such as commercial policy to third
p. 62 countries (as upheld by the CJEU in its ↵ Opinion 1/75), and parts of the Common Fishing Policy.
These are now set out in Art 3 of the TFEU and include customs union, competition policy for the
internal market, monetary policy for the Eurozone, parts of the Common Fisheries Policy, and
commercial policy.
Concurrent/shared
In other areas—that is, in most areas—the dividing line is not so clear and competence is shared or
concurrent between the Member States and the Union. Following the Lisbon Treaty reforms, it is
set out in Art 4 TFEU.
Complementary
Areas of law outside those exclusive and concurrent competences remain the competence of the
Member States, although, following Lisbon, the Union may support or complement Member States’
activities in these areas as sanctioned by a new Art 6 TFEU.
It is in the area of shared competences that most difficulties arise, where it can still be unclear
whether the Union or the Member States have the competence for a particular action. Furthermore,
the degree of sharing also alters according to the subject matter: e.g. in areas such as the internal
market, as soon as the Union acts under its competence, it assumes exclusive power to act and the
Member States are then deprived of the power to act in conflict. If, however, the Union chooses not
to act, the Member States retain the power to act. As a result, it is possible for there to be a genuine
grey area between what is within the Union competence and what is still within the Member State
competence.
This is a matter that has troubled the EU time and again, in particular as it became clear from the
progressive judgments of the CJEU that the Community (and now Union) had taken over from the
Member States even in areas to which the Member States were not sure they had agreed, or indeed
to which they were of the conviction that they had not agreed, or even where they considered that
they had excluded that particular matter from EU competence. As a result, there has been a reaction
by some of the Member States.
4
The extension of competences: Treaty amendment
4 Next you should outline the ways in which competences have been extended (Treaty,
reserve powers, and implied), and why they should be controlled.
Page 21 of 33
The first of these ways, Treaty amendment, is deliberate and clear-cut. The areas of Union
competence have expanded greatly as a result of the Member States assigning additional
competences to the Union, with successive Treaties. The second and third ways are not express and
have led to the use of the term ‘competence creep’ to describe the manner in which the institutions’
competences have advanced incrementally.
Residual/general law-making powers

The second way by which competences have been expanded is via the residual or general law-
making powers, which include both specific and general kinds.
p. 63 ↵ Specific residual powers are those that grant subsidiary law-making powers to complete
goals in specific areas, in particular to complete the internal market. Articles 114 and 115 TFEU
provide for the approximation of laws affecting the establishment or functioning of the internal
market and measures for the completion of the internal market. Article 114 TFEU provides that to
achieve the objectives of the internal market, set out in Art 26 TFEU, where powers are not
otherwise provided by the Treaty, action can be taken by qualified majority voting (QMV). In other
words, action can be taken outside of the express and exclusive granting of powers to the Union by
a majority and not by the agreement of all of the Member States.
Article 115 TFEU is an exception to the powers granted in Art 114, which is a general power to enact
harmonising legislation. It does, however, contain safety measures so that Member States and
institutions do not go too far: the Council must act by unanimity and must consult only and not co-
decide with the European Parliament (EP).
It has been held, though, by the CJEU that these Articles should not be used where other Articles are
more appropriate.
The general kind of residual power is Art 352 TFEU, which provides that, where in furtherance of
any of the objectives of the Treaty and where no specific power exists, the Union may act by means
of the Council acting unanimously with the consent of the EP. Note that previously it was only
necessary to consult the EP.
Implied
The exercise of implied powers is the third means of extending competences. This was recognised
by the CJEU in cases dealing with both internal and external powers of the Commission, where, in
the absence of express powers in the Treaty, powers are nevertheless required to achieve a Union
goal and are thus implied. Furthermore, implied powers to carry out internal competences can also
be used to support external powers, although no such external powers are provided in the Treaty.
The CJEU confirmed the validity of implied powers in the Union legal order as early as in the
Fedechar case (8/55) and in subsequent cases.
Page 22 of 33
5
The ways the competence creep can be controlled
5 Particularly after the changes made by the Lisbon Treaty, the suggestion is that they are
now firmly regulated, which suggests that they were not before.
The increase in the competences of the Union, without those not expressly sanctioned by the
Treaties, has been increasingly criticised and challenged, including challenges before the Court of
6
Justice to some proposed and completed Community and Union actions, and more formally by
p. 64 amendments to the Treaties to try to curb this ↵ development. See the 2005 article by
7
Weatherill exactly on this dual topic of creep and control.
7 Address the control of the competence creep including the principles of subsidiarity and
proportionality and the protocol to give guidance on how the principles should operate.
Restrictive drafting
Legal bases have been drafted restrictively so that the Commission cannot use the base for further
8
legislative intervention. See e.g. Art 168(5) TFEU, which provides for action to promote
cooperation in public health matters, but ‘excluding any harmonisation of the laws and regulations
of the member states’.
8 Providing a clear example is always good practice.
Subsidiarity and proportionality

The principle of subsidiarity requires that decisions be taken at the most appropriate level and, in
the EU context, this focuses on whether a decision should be taken at the level of the Union or
Member States. The wish to regulate activities within the Union should not insist on action at the
Union level when it is not necessary. Essentially, it provides that the Union should take action only
where objectives could be better attained at the Union level than at the level of individual Member
States. It was subsequently introduced generally into the Union legal order by the TEU.
Page 23 of 33
Article 1 of the TEU provides that decisions are to be taken as closely as possible to the citizen; Art
5(1) TEU provides that ‘The use of Union competences is governed by the principles of subsidiarity
and proportionality’ and further provides in Art 5(3) TEU that:
in areas which do not fall within its exclusive competence, the Union shall act, only if and
in so far as the objectives of the proposed action cannot be sufficiently achieved by the
member states, either at central level or at regional and local, but can rather, by reason of
the scale or effects of the proposed action, be better achieved at Union level.
Proportionality is also contained in Art 5 TEU and is linked to the subsidiarity principle, because
both are concerned with the control and exercise of powers by the institutions.
Article 5(2) TEU provides: ‘Under the principle of proportionality, the content and form of Union
action shall not exceed what is necessary to achieve the objectives of the Treaties.’
Like subsidiarity, it too is subject to Protocol 2 and Union Acts are open to possible challenges if
breaching proportionality.
9
Protocol on the principles and national parliaments’ involvement
9 You should make clear what the revised Treaties actually provided in respect of the new
division of powers including the involvement of national parliaments.
The Protocol requires the Commission to consult widely before formally proposing legislation and,
in an amendment brought in by the Lisbon Treaty, its draft legislative Acts shall be forwarded to
the national parliaments at the same time as to the EP and Council, and the Commission must
p. 65 accompany drafts with detailed statements as ↵ to how the proposal complies with the
principles of subsidiarity and proportionality, and must provide evidential support to demonstrate
that Union action is required and the general and financial impact of the proposed legislation.
Articles 6 and 7 TEU further outline the Council members’ national parliaments’ ability to object to
the proposal and the procedure involving how those objections are further considered by the Union
institutions in the legislative processes, and how the Commission must issue a reasoned opinion if
it wishes to maintain the proposal for further consideration in the legislative process. All in all, it is
quite a convoluted process. As a last resort under Art 8 of the Protocol, legislative Acts may be
challenged under Art 263 TFEU for infringing the principle.
Page 24 of 33
10
Challenges for non-compliance with the principles
10 Most important is considering any case law which has visited these issues and in
particular considered subsidiarity or proportionality.
In UK v Council (Working Time Directive) (Case C-84/94) and Netherlands v European Parliament and
Council (Biotechnology Directive) (Case C-377/98), arguments raised by the Member States in the
cases that subsidiarity had not been observed were roundly rejected by the Court of Justice. In the
Working Time Directive case, the CJEU dismissed this part of the action with little discussion, merely
to confirm that the Council had a clear power to act on working hours as an issue of the health and
safety of workers. In other words, if it had the competence to act, it could not be prevented from
acting.
However, in Germany v Parliament and Council (Tobacco Advertising Ban Directive) (Case C-376/98),
the harmonising Directive 98/43/EEC banning most forms of tobacco advertising was enacted
under what was then Art 95 EC (now Art 114 TFEU) as an internal market measure. This was
challenged by Germany, who argued that the measure was more closely allied to a public health
measure and, thus, should have been enacted under the then Art 152 EC (now Art 168 TFEU), which
expressly prohibited harmonising legislation. The CJEU held that measures under (the then) Art 95
must have the primary object of improving conditions for the establishment or functioning of the
internal market and that other Articles of the Treaty may not be used as a legal basis in order to
circumvent the express exclusion of harmonisation. It held further that to construe the internal
market Article as meaning that it vests in the Union legislature a general power to regulate the
internal market would be incompatible with the principle embodied in (the then) Art 5 EC that the
powers of the Union are limited to those specifically conferred upon it. The CJEU thus held that, as a
measure doing little to enhance the internal market, the use of the legal market Treaty base was
inappropriate and it therefore annulled the measure entirely.
p. 66 ↵ The judgments are not a clear endorsement that subsidiarity is a clearly justiciable issue;
more that it is another confirmation that where an incorrect legal base is used, or where no powers
have in fact been conferred, this provides grounds for the annulment of the measure. The tobacco
judgment is regarded as a reply to national courts, in particular the German Constitutional Court,
which might have been minded to take Union law into its own hands, by showing that the CJEU is
prepared to police incursions into the Member States’ competences by the EU’s institutions. In the
11
2012 article by Horsley, a closer look at how the CJEU viewed the attempt by Member States to
challenge EU law on the grounds of a breach of subsidiarity is taken.
Page 25 of 33
Proportionality was raised in UK v Council (Working Time Directive) (Case 84/94) by the UK under
the argument that the restrictions imposed on working time were not minimum requirements, but
were excessive—that is, disproportionate. This view was rejected by the CJEU on the grounds that
unless there had been a manifest error or misuse of powers, the Council must be allowed to exercise
its discretion in law-making involving social policy choices.
Finally, in the attempt to counter the competence creep, the Lisbon Treaty has introduced a new
requirement in Art 296 TFEU that relates to the competence and legal base issues, and states that:
‘When considering draft legislative acts, the EP and the Council shall refrain from adopting acts not
provided for by the relevant legislative procedure in the area in question.’
Summary
The changes made by the Lisbon Treaty include a clearer division of competences, a revised
Protocol on subsidiarity and proportionality, and involving the national parliaments in EU law-
making. So whilst there is greater Treaty regulation, legal challenges for a breach of subsidiarity or
proportionality will remain difficult to win in view of the complexity of those principles and the
degree of discretion enjoyed by the EU institutions.
■ Better candidates will indicate that the case law has shown that legal challenges have actually
not been very effective in trying to get to grips with the protocol on subsidiarity and
proportionality.
■ Discussing the involvement of national parliaments and whether their participation is helpful
would be beneficial. You could note that they have intervened only rarely, and with limited success;
for example, the Commission proposal for a Posted Workers Directive was objected to by two
national parliaments. The Commission subsequently amended the proposal and a watered-down
version (Directive 2014/67) was adopted. The Commission Proposal to establish a European
Prosecutor’s Office was opposed by fourteen national parliaments, yet the Commission elected to
p. 67 proceed.
Question 5
Article 50 TEU is the Treaty article which facilitates the withdrawal of a member state from the EU
but does little to clarify exactly how this should be done, nor indeed the timescale, or possible
revocation.
Page 26 of 33
Analyse Art 50 in the light of these comments and with the experience of ‘Brexit’.
Caution!
■ Avoid a distinctly political discussion of this question.
■ This question is not about the Referendum in 2016 nor the result of that, which, although it was
the catalyst for the decision to trigger Art 50 TEU, it is not the focus of the question.
■ Try to achieve a balance of coverage of the various elements in your answer and do not stray
into the political events which surrounded the reasons why the UK chose to trigger Art 50 TEU.
Diagram Answer Plan
Page 27 of 33
Suggested Answer
1
Article 50 TEU
1 The obvious starting point is to explain what Article 50 is all about.
Article 50 TEU provides for a formal process by which a Member State is able to leave the EU. Prior
to 2009, there was no EU Treaty Article facilitating the exit of a Member State. However, Art 50 TEU
p. 68 now provides that following a two-year negotiation period to agree ↵ the terms of withdrawal,
the Member State will exit. Article 50 TEU is thus a procedural device as to how the withdrawal be
conducted.
Prior comments attached to the Constitutional Treaty about Art 1-59, as the exit clause was then
numbered, indicate that the inclusion of an exit clause was a political compromise demonstrating
that the EU was not an inescapable and rigid entity. The Constitutional Treaty was abandoned but
2
the exit clause was carried forward, unaltered, to the 2009 Lisbon Treaty as Art 50 TEU.
2 I do not always advocate re-producing the text of Treaty Articles, but Art 50 extracts can be
quite short so you could do so. It makes it easier to refer to but is not crucial to the answer.
This assumes you are permitted to take a copy of EU law legislation into the exam.
Article 50
1. Any Member State may decide to withdraw from the Union in accordance with its
own constitutional requirements.
2. A Member State which decides to withdraw shall notify the European Council of its
intention …
3. The Treaties shall cease to apply to the State in question from the date of entry into
force of the withdrawal agreement or, failing that, two years after the notification
referred to in paragraph 2, unless the European Council, in agreement with the
Member State concerned, unanimously decides to extend this period.
With regard to paragraph one of Art 50, the constitutional process in the UK was that a referendum
was held in June 2016 and the UK government committed itself to honour the result although it was
3
not constitutionally bound to do that.
Page 28 of 33
3 There is no need to go into any further detail on this point.
There are a couple of things to mention about Art 50 itself before moving on to discuss the process
and the complications in the light of the UK triggering Art 50. The first is that the Article merely
sets out the procedurally requirement to start the withdrawal from the EU. This is achieved by the
Member State formally notifying the European Council of its intention to withdraw from the EU. So
whilst Art 50 (2) provides that the state shall notify the European Council it makes no mention of
the timing, so that lies entirely in the hands of the withdrawing Member State. So that is the first
uncertainty created by the lack of clarity in the Article itself. This was not clarified in the UK exit
process. The UK took about nine months to give that notification after being delayed by a court
case.
After a state notifies its intention to exit, a two-year period starts in which the arrangements to
withdrawal are negotiated and agreed, although in the UK a dispute arose as to which part of the
state was empowered to decide and trigger Art 50.
Whose right was it in the UK to trigger Article 50?

Initially it was the clear intention and claimed right that the Government as represented by the
Prime Minister was the most appropriate constitutional body to notify the European Council under
Art 50. This was challenged by a number of individuals before the High Court, which was appealed
p. 69 up to the Supreme Court in the case ↵ of Miller v Secretary of State for Exiting the European Union
([2017] UKSC 5). They argued that it was for Parliament to sanction this and not just for the Prime
Minister, Cabinet, or Government alone. The Supreme Court was asked to determine which part of
the UK constitutional machinery should lead the way in starting the formal exit process with the
EU: whether the Government, led, of course, by the Prime Minister and other Ministers involved in
the withdrawal process, had the right to invoke Article 50 TEU, or, alternatively, whether that right
belonged to the UK Parliament.
The Government argued that the ministers of the Government had the right under the Royal
4
Prerogative to withdraw from the international Treaties including the treaties providing for
membership of the EU and that the European Communities Act of 1972 (ECA 1972) did nothing to
undermine this right to withdraw. It could therefore trigger Art 50 TEU without the need to consult
Parliament or obtain Parliament’s prior approval.
4 It would be best here to outline what the Royal Prerogative is to understand why that was
claimed by the Prime Minister and Government ministers.
Page 29 of 33
The Royal Prerogative refers to the vestigial powers of the Crown relating to the conduct of foreign
relations and which are exercised by Government ministers on behalf of the Crown. Typical of such
foreign relations would be the negotiation, conclusion, and termination of international
agreements with other countries or withdrawal from them. However, this has to be tempered or
subject to the understanding that where such relations impact on the internal law of the UK or alter
or impinge on the rights of the citizens of the UK, the matter is no longer purely a matter of foreign
relations and thus falls outside the ambit of the Royal Prerogative. The consequence is that the
right falls squarely within the powers and rights of Parliament. The Government further argued
that the result of the decisive referendum committed the Government to withdraw and thus it was
not required to defer to the House of Commons or Parliament, for approval, permission or even
opinion before taking the decision and actually triggering Art 50.
The counterarguments of Miller and others were that denying the UK Parliament a vote was
undemocratic and a breach of long-standing constitutional principles, because of the well-
established rule that prerogative powers may not extend to acts which result in a change to UK
domestic law. They argued that withdrawal from the EU Treaties would change domestic law and
therefore the Government could not serve notice under Art 50 TEU unless first authorised to do so
by an Act of Parliament. The Supreme Court agreed that the Royal Prerogative could not apply to
allow the Government or the Prime Minister or other ministers to trigger Art 50 alone because of
the profound effects on UK domestic law and UK citizens’ rights that withdrawal from the EU will
have. Therefore it held the Government cannot trigger Art 50 without an Act of Parliament
p. 70 authorising it ↵ to do so. The Government accepted the judgment and immediately brought the
matter to Parliament, which passed the European Union (Notification of Withdrawal) Act 2017
which gave the Prime Minister the power necessary to notify the European Council of the UK’s
intention to withdraw from the European Union, which was done on 29th March 2017.
Whilst the decision in the case applies only to the UK, other countries can take note that it is for
each state to decide this in conformity with their own constitutional requirements.
Article 50 (3) states that following notification, the Treaties will no longer apply after a maximum
two-year period. This brings in the next point about which Art 50 is not fully explicit.
The possible extensions of the Article 50 Period

The negotiation period for withdrawal can, however, be extended as Art 50 (3) states that the
European Council, in agreement with the Member State concerned, unanimously decides to extend
this period. Article 50 TEU is silent as to the number of requests that can be made or indeed as to
how long each extension may be. Even from the start of UK negotiations, it was speculated whether
the two years would prove long enough. This proved to be accurate as on two occasions the UK
5
asked for an extension.
Page 30 of 33
5 Whilst the difficulties that were experienced in getting Parliamentary approval in the UK
for the withdrawal agreement dominated news for many months and were the reason for
extension applications, to include discussion here would be to lose focus on answering the
question set.
The granting of these proved not to be controversial and both requests were agreed with the
European Council with little fuss. The final and perhaps most controversial unclear aspect of Art 50
is the next to be covered here.
Is revocation of Article 50 TEU possible?

In fact this question was dual faceted. Article 50 itself is silent on this, hence there was considerable
speculation, not only on whether Art 50 could be withdrawn or revoked, but also by whom? Is this
just the Member State alone which invoked it in the first place but for whatever reason has changed
its mind, in other words a unilateral revocation, or can it be revoked only by the Member State with
the agreement of all other Member States and the EU institutions? A lot of opinion considered that
the latter was the correct conclusion. There was a CJEU ruling on these very questions which might
be of very important general future interest. Wightman and Others v Secretary of State for Exiting the
European Union (Case C-621/18) decided both these matters. The Commission argued revocation
was possible but not unilaterally, which would be an abuse of Art 50. Thus the unanimous consent
of the European Council would be required. The CJEU held that a Member State which decides to
withdraw notifies the European Council of its ‘intention’ and went on to clarify that an intention is,
p. 71 by its nature, neither definitive nor irrevocable. ↵ Thus it concluded that any Member State may
decide to withdraw from the European Union in accordance with its own constitutional
requirements. It follows that the Member State is not required to take its decision in concert with
the other Member States or with the EU institutions. Thus prior to the expiry of the Art 50 period or
periods a Member State can revoke its notification, and, indeed, unilaterally.
6
Concluding remarks
6 Here simply address the question and do not introduce or discuss peripheral or general
issues relating to the topic.
Article 50, on the face of it, is short, sharp, and to the point. It tells us how a Member State may
initiate the process of exiting the EU. It does not though tell us much detail about this, particularly
with regard to which part of a state may sanction notification, whether more than one period of
extension under Art 50 may be agreed, and most importantly, whether an Art 50 notification to
Page 31 of 33
withdraw could be withrdrawn and if so, by whom: just the exiting state alone or only with the
agreement of the remaining states in the European Council? If nothing else, the experience of the
Brexit withdrawal has clarified these points.
■ If you have enough time, you could briefly clarify that the Art 50 periods concern only
withdrawal terms and not the possible future relationship.
■ Again if you have time, you could consider the issue of admissibility in the Wightman case.
Taking Things Further

■Avbelj, M, ‘Supremacy or Primacy of EU Law—(Why) Does it Matter?’ (2011) 17 ELJ 744.
A general view on the supremacy of EU law.
■Craig, P, ‘Britain in the European Union’ in Jowell, J and Oliver, D (eds), The Changing Constitution, 6th edn (Oxford:
Oxford University Press, 2007).
A view on the UK acceptance of EU law.
■Dashwood, A, ‘The Relationship between the Member States and the European Union/European Community’ (2004)
41 CML Rev 355–81.
Although a bit dated now, this article does discuss the overall picture rather than concentrate on one Member State and
its relationship with EU law.
■Gaja, G, ‘New Developments in a Continuing Story: The Relationship between EC Law and Italian Law’ (1990) 27 CML
Rev 83.
A view on Italian acceptance of EU law.
p. 72 ↵ ■Giegerich, T, ‘The German Federal Constitutional Court’s Misguided Attempts to Guard the European
Guardians in Luxembourg and Strasbourg’ (2013) 1232 Der Staat im Recht, 49.
Looking at the attempts by the FCC to conduct an oversight over EU legislation.
■Horsley, T, ‘Subsidiarity and the European Court of Justice: Missing Pieces in the Subsidiarity Puzzle’ (2012) 50 JCMS
267.
A closer look at how the CJEU viewed the attempt by Member States to challenge EU law on the grounds of a breach of
subsidiarity.
Page 32 of 33
■Komerek, J, ‘The Place of Constitutional Courts in the EU’ (2013) 9 ECL Rev 420.
Looking at the trend of Constitutional courts to take a closer interest in EU law supremacy.
■Manin, P, ‘The Nicolo Case of the Conseil d’État: French Constitutional Law and the Supreme Administrative Court’s
Acceptance of the Primacy of Community Law over Subsequent National Statute Law’ (1991) 28 CML Rev 499.
A view on French acceptance of EU law.
■Payandeh, M, ‘Constitutional Review of EU Law after Honeywell: Contextualising the Relationship between the
German Constitutional Court and the EU Court of Justice’ (2011) 48 CML Rev 9.
A view on German acceptance of EU law.
■Weatherill, S. ‘Competence Creep and Competence Control’ (2005) 24 YEL 1.
Doing exactly what it says on the tin.
Online Resources
www.oup.com/uk/qanda/ <http://www.oup.com/uk/qanda/>
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qanda3e-chapter-4-extra-questions?options=name> on this topic and guidance on how to approach them, as well as
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4.

The Supremacy of EU Law and its Reception in the Member States

p. 47 4. The Supremacy of EU Law and its Reception in the Member States

Keywords: EU law, Member States, Brexit, EU law supremacy, CJEU

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Diagram Answer Plan

1 This clearly concerns the now well-established doctrine or principle of supremacy of EU

The position of the Court of Justice

Therefore, EU law is to be supreme over subsequent national law.

Overall conclusions on supremacy

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p. 52 Diagram Answer Plan

p. 54 ↵ In CR Smith Glaziers (Dunfermline) Limited v Commissioners of Customs and Excise ([2003]

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p. 56 Diagram Answer Plan

4 First, look at the Constitution to see how it regards non-domestic law.

p. 58 constitutions allowed a transfer of ↵ power to international organisations but were silent as to

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p. 61 Diagram Answer Plan

Introduction and the transfer of powers and competences

Residual/general law-making powers

8 Providing a clear example is always good practice.

Subsidiarity and proportionality

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■ Avoid a distinctly political discussion of this question.

Diagram Answer Plan

1 The obvious starting point is to explain what Article 50 is all about.

3 There is no need to go into any further detail on this point.

Whose right was it in the UK to trigger Article 50?

The possible extensions of the Article 50 Period

Is revocation of Article 50 TEU possible?

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Taking Things Further

A general view on the supremacy of EU law.

A view on the UK acceptance of EU law.

A view on Italian acceptance of EU law.

Looking at the attempts by the FCC to conduct an oversight over EU legislation.

A view on French acceptance of EU law.

A view on German acceptance of EU law.

■Weatherill, S. ‘Competence Creep and Competence Control’ (2005) 24 YEL 1.

Doing exactly what it says on the tin.

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