1. Introduction

If we want to refer to the principle of supremacy of EC law over national law in relation to the latest developments, we must at first make both the theoretical outline as to its origins in the EC law and its acceptance by national courts. Subsequently, we may reflect changes suggested by recent proposals made in the EU Constitution and the Treaty of Lisbon.

2. The principle of supremacy of EC law – origins

The principle of supremacy (or primacy) of EC law over the national law is a long-standing concept. Its very origin dates back to the early times of the European Communities and must be searched for in the case-law of the Court of Justice of the EU (further referred as the ECJ).

The first constitutionally important judgement was the case Van Gend en Loose [26/61] which founded the doctrine of direct effect of Community law in national law; another seminal judgement was the case Costa v. ENEL [6/64] which directly concerned the EC law supremacy over the national law. In this judgement the ECJ claimed that “the EEC Treaty 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” [6/64, point 3]. Further it stated that “[b]y creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity … and, more particularly, real powers stemming from the limitation or transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit in limited field” [6/64, point 4, highlighted by the author]. The ECJ further states that the above mentioned conclusions “make it impossible for the states … to accord precedence to a unilateral and subsequent measure …” [6/64, point 5, highlighted by the author].
Though this concept of the transfer of sovereignty from the Member States was stated in quite strict terms, the argumentation of the ECJ was not so persuasive and was criticised. Clearly it was a teleological interpretation and deploy of arguments [6, P. 72] and no national constitution of the Member States had expressed provisions in that respect. [1, P. 346] The ECJ drew, among others, on the spirit and the aims of the Treaties with the rationale to insure the uniform application of the EC law in all Member States. Thus, the concept of transferral of sovereignty from the Member States to the European Communities was a concept de facto created by the ECJ.
The transfer of sovereignty was confirmed, clarified and elaborated in the subsequent case-law of the ECJ; the most important judgement being the case Internationale Hangelsgesellschaft [11/70] (EC law supremacy over national constitutional law including standards of human rights protection); case Simmenthal [70/77] (inapplicability of any national law inconsistent with the EC law); or case Ciola [C-224/97] (supremacy of EC law over national administrative acts). [1, P. 347]

3. The principle of supremacy of EC law – its conditional acceptance at the national level

Possibly it might seem that the notion of supremacy of EC law over national law has been unproblematic. However, the concepts contained in the case-law of the ECJ have been mostly dependent on their acceptance at the national level. The question of supremacy of the EC law over the national law and, presumably, also the national constitutions was scrutinized especially by the national supreme and constitutional courts which depending on the national judicial systems have a final say in matters dealt with by the national judiciary.
The most famous cases were decided by the German Federal Constitutional Court (Bundesverfassunsgerichthof) that refused to accord primacy of EC law over the German constitution in relation to the standards for the protection of human rights. In its judgement called “Solange I” (a decision following the above mentioned decision of the ECJ 11/70 Internationale Hangelsgesellschaft requiring the primacy of EC law over national constitutional rules on human rights) it refused to accord primacy to EC legislation in case that it infringes the protection of human rights guaranteed by the German Constitution. This was a severe blow to the doctrine of the ECJ which claimed unconditional supremacy even over national constitutions.
The ECJ reacted to the national developments and more widely integrated the human rights protection into its case-law and increased the protection of human rights as general principles of law. [4/73, point 13, 5, P. 66-77] The German Constitutional Court reacted to these developments in its case called Solange II where it decided not to rule on the inapplicability of EC law en face the German law so long as the EC law safeguards the protection of human rights. Though the conflict has been settled at that moment, the German Constitutional Court reserved the position of the final arbiter to review constitutionality of EC law if need be (it keeps so called Kompetenz-Kompetenz). As we saw in the previous chapter at the same time the ECJ itself claims to have this Kompetenz-Kompetenz. Similar developments with a few modifications appeared also in other Member States. [6, P. 76-85]
In the Czech Republic these issues were dealt by in the decision of the Czech Constitutional Court in “Sugar quotas judgement”. The Czech Constitutional Court refused to recognize the ECJ doctrine insofar the EC law claims absolute primacy of the EC law. It stated that the delegation of a part of these powers of national organs upon organs of the EU may persist only so long as these powers are exercised by organs of the EU in a manner that is compatible with the preservation of the foundations of state sovereignty of the Czech Republic, and in a manner which does not threaten the very essence of the substantive law-based state. Until the EC legislation keeps within these limits, the Czech Constitutional Court will not review individual norms of Community law for their consistency with the Czech constitutional order. [3, P. 9]

4. The principle of supremacy of EC law – the EU Constitution

The issues of supremacy of the EC law were dealt by in the creation of the text of the Treaty founding a constitution for Europe (further the “EU Constitution”) which was approved by the Member States in June 2004. Under the EU Constitution European Community and European Union would merge; the pillar structure of the EU would cease to exist. Then we would have to talk about supremacy of the EU law as compared to present state where supremacy is limited only to the EC law. [4, P. 257-272]
Unlike the present EC Treaty which does not explicitly contain any provision on supremacy, the principle of supremacy was embodied in the text of the EU Constitution in its art. I-6. This article declared that “the Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States.” The intentions of the Member States, when drawing art. I-6, were further explained under their declaration attached to the Constitution – it proclaimed that the article I-6 reflects existing case-law of the ECJ.
In this respect we may ask about the effects of the new provisions and whether it would require any change of the attitude of national judicial authorities and lead them to accept unconditionally the supremacy of EC/EU law. In our opinion this conclusion would be wrong – though the new article would say that the supremacy of EU law must be accepted, it does not solve the question about the ultimate source of legitimacy of the EU Constitution and all subsequent secondary legislation.
We assume that the national supreme and constitutional courts would still base the transfer of sovereign powers from the Member States to the EU on the respective provisions of their national constitutions and would keep to the conclusion that even agreements based upon it must respect the fundamental principles on which their constitutions are based. Still, the new provision I-6 and the explicit referral to supremacy was criticised as a strong federal element which, eventually and under certain conditions, could foster the idea of EU law supremacy (even) over national constitutions.

5. The principle of supremacy of EC law – the Treaty of Lisbon

The possible operation in practice of the new provisions of the EU Constitution was not quite clear; it is not an up-to-date topic now as the EU Constitution would not come into force because its text was refused in referenda in France and the Netherlands. Consequently, the reform process was resumed in 2007 and led to the creation of the so called “Reform Treaty”. It was finalised under the Portuguese Presidency of the EU and the new treaty was signed on 19 October 2007 in Lisbon (therefore, called the Treaty of Lisbon); the ratification process in the Member states is now in progress.
Though the Treaty of Lisbon kept most of the changes proposed by the EU Constitution, [2, P. 131-135] it omitted a direct referral to the supremacy in the very text of the amended EU Treaty. Therefore, in that respect it keeps the present state of affairs – dichotomy of the case-law of the ECJ and national (constitutional) courts; by some it might be interpreted as a retreat from the embodiment of federalist features in EU constitutional law proposed by the EU Constitution. The Treaty of Lisbon only preserved the slightly changed declaration of the Member States on the application of supremacy in the framework of the case-law of the ECJ. Though it could serve as an interpretation tool of the founding treaties, by its nature this declaration does not have the force of law and is not legally binding. Therefore, we suppose that the Treaty of Lisbon did not bring much new to the present state of law in relation to the supremacy issues.

6. Conclusion

For the time being the supremacy of EC law over national law is a result of a dialogue between the EC and national level and may be characterised by words as “armistice” or “mutual respect”. One of the reasons for this complex situation is the fact that, even after the most recent changes proposed by the Treaty of Lisbon, the finality of the EU is open and unclear. If the EU and its Member States and citizens would expressly show their will to create a European federation and made the necessary changes to their constitutions and EC/EU treaties, then, the situation could lead to the clear conclusion on supremacy of EC/EU law over national (constitutional) law (of course in selected “federalised” areas). Evidently in the EU there is no common will for this step yet.
We assume that, though it could seem very unsatisfactory especially from the theoretical point of view and potentially could be a source of further constitutional conflicts, the present state of law might be found as of benefit and added value for the EU integration. It forces the ECJ to be more cautious in its case-law and principles contained therein and may lead to greater respect to varying cultural and legal traditions in the Member States. This dialogue-like development of EU law may be the basis for deepening respect among peoples of the EU and may help preserve national diversities.

LIST OF USED SOURCES:

1. Craig, P., de Búrca G.: EU Law — Text, cases and materials, 4th ed., Oxford UP, Oxford 2006
2. Hamuľák, O.: Reform Treaty – co nového přineslo léto Evropě?, Monseho debaty mladých právníků, Conference proceedings, Palacky University, Olomouc 2007, p. 131-135.
3. Komárek, J.: European Constitutionalism and the European Arrest Warrant – in search of the contrapunctal principles´ limits, Feb 2007, CMLR, vol. 44, iss. 1
4. Křepelka, F.: Distribution of competences in the European Union according to the Constitution for Europe: a Czech view, in: Continuing the European Constitutional Debate, Chemnitzer Europastudien, Duncker and Humblot, Berlin 2008
5.  Stehlík, V.: Nástin lidských práv v EU, in: Škola lidských práv, Conference proceedings, Supplementum 2-2002, Palacky University, Olomouc 2002
6. Steiner, J., Woods, L., Twigg-Flesner, Ch.: EU law, Oxford University Press, 9th ed., Oxford 2006