The Primacy or Supremacy Principle of the European Union Law: A Comparative Overview of British, German and French Courts’ Responses

Dr Sharifullah Dorani* |

*South Asia and the Middle Eastern Editor at CESRAN International


This is my final essay in a series of essays (or articles) on the primacy of European Union (EU) law over national law.[i] My first essay dealt with how and why the notion of the supremacy of EU law was developed by the Court of Justice of the European Union (ECJ) (Dorani, 2020a). The second one focused on whether the United Kingdom (UK) accepted the supremacy of EU law (Dorani, 2020b). The third essay concentrated on how the German courts reacted to the notion of the superiority of EU Law (Dorani, 2021a). The fourth one studied the response of the French courts to the idea of EU law superiority over French Law (Dorani, 2021b). The present essay overviews (as well as compares and contrasts where appropriate) the above-mentioned three Member States’ responses towards the notion of EU law supremacy and offers brief concluding remarks.

An Overview of the UK, Germany, and France’s Approaches to the Principle of the Supremacy of EU Law

Although the UK has already left the EU, the British courts’ reaction to the doctrine of EU law primacy is still relevant since it has been an essential part of EU Law modules at universities and will continue to have relevance.[ii]  The ECJ was asking the UK courts something that they were not constitutionally competent to offer. As seen in the essay on UK’s response to EU law superiority (Dorani, 2020b), the UK courts did not have the power to question the validity of an Act of Parliament due to the sovereign nature of Parliament (Loveland, 2003: 21).As seen in the first essay, the ECJ made it clear that the Member States must give primacy to EU law regardless of whether the national law was passed before or after the EU law, irrespective of the nature of the national law (Costa, 1964; Dorani, 2020a).  The ECJ reasoned that by joining the EU, the Member States accepted the supremacy of EU law under Article 288 (ex 249 TEC) of the Treaty on the Functioning of the European Union signed in 1957 (Dorani, 2020a). Therefore, it was vital to preserve this supremacy so that the uniformity and efficacy of EU law was ensured, even if it was at the cost of the national constitutional law of the Member States. Not only the higher courts of Member States were under the obligations to immediately give precedence to EU law over national law in a case of conflict, but also the lower courts (Simmenthal, 1978).

However, though reluctant at first, the UK courts got around the constitutional difficulty by adopting the rule of construction on the basis of section 2 (4) of the European Communities Act 1972 and gave precedence to EU law by accepting the direct effect of directives (Macarthys Ltd, 1979; Garland, 1983; Pickstone, 1989; Webb, 1995; Dorani, 2020b). These cases suggested that the British courts accepted the ECJ’s rulings on the direct effect of directives.  The rulings of Factortame (1991) and EOC (1995) were additional indications that the courts went further to accept the ECJ’s judgments in Simmenthal and Costa, namely that EU law took precedence over national law regardless of when the national law was passed (Dorani, 2020a).

However, the courts argued that they relied on section 2 (4) for their judgment in Factortame, suggesting that Parliament was still sovereign. This was not a convincing claim as the Parliament of 1972 was not constitutionally competent to bind the Parliament of 1988, and the courts were well aware of this fact (Ellen Street Estates Ltd, 1934; Dorani, 2020a). The court, however, did not accept the earlier incompatible Act and held it to have been impliedly repealed. Therefore, one could argue that it was the ruling of Simmenthal that was relied on by the Supreme Court in Factortame. However, whatever the authority for Factortame might have been, the UK courts, practically speaking, accepted the supremacy of EU law without, unlike the German Courts, any threats or conditions.

Unlike the UK and French Courts, the German courts were quick – particularly the Federal Constitutional Court (FCC) – to recognise the independent nature of the EU law (Re Tax, 1963). Re Tax demonstrated that the FCC accepted the supremacy of directly effective EU law. It also made clear to the lower German courts that the ECJ’s rulings were binding inside Germany (Dorani, 2021a). Thus, the FCC was one of the first supreme courts of the Member States discussed to accept the superiority of EU law. However, the Solange I (1970) decision indicated that it was not the case any longer, as the FCC claimed that it would review the EU law like any other German law if it was in breach of the German Basic Rights.

Unlike the Supreme Court in the UK, the FCC is constitutionally competent to do so, and it was, therefore, considered a significant threat to the supremacy of EU law. But Solange II (1987) indicated that the FCC modified its Solange I jurisprudence by holding that the European level of protection for human rights now measured up to that of the German Constitution. Although it claimed that the European level of protection for human rights was similar to that of the German one, it constantly held it would use its Solange I jurisprudence if the EU institutions acted ultra vires (that is, beyond the competence that the Member States have given to the EU) or if the protection for human rights fell below the German standards (Brunner, 1994; The Banana Litigation, 2000). This suggests that the FCC regarded itself as the ultimate arbiter of constitutionality and the German Constitution superior to EU law. However, as seen in my essay on Germany’s reaction to EU law primacy (Dorani, 2021a), except for one case, the FCC, in practice, has never disregarded a provision of EU law; the one case has been, as I explained in detail in my one of my previous essays, ‘a special one and can be confined to its own facts’ (Dorani, 2021a). One could naturally conclude that the FCC, too, has (though conditionally) accepted the supremacy of EU law. The same conclusion could be even truer for the French Courts.

Like the UK courts, the French courts were reluctant to give priority to EU law as they regarded themselves constitutionally incompetent. However, the Cour de Cassation’s Vabre (1975) decision suggested that the Cour de Cassation did not see itself as incompetent and, therefore, gave superiority to EU law over the French law. At first, both the Constitutional Court and the Conseil d’Etat were not prepared to accept the superiority of EU law over French law and even on some occasions did not apply the EU provisions before them (Semoules, 1970), which neither the Supreme Court in the UK nor the FCC in Germany ever did so. However, eventually they changed their positions and held that Article 55 of the French Constitution empowered them to give supremacy to EU law over French law, but not over the French Constitution (Dorani, 2021b; Richards, 2000: 192).

Thus, Germany and France, to a certain extent, have the same position, that is, they have accepted the supremacy of EU law as long as the EU institutions do not encroach on the German and French Constitutions. Great Britain, though it has not got a written constitution, evidently accepted the supremacy of EU law over an Act of Parliament (Factotame, 1991; EOC, 1995). Needless to say, though, the EU law is no longer supreme in the UK, owing to Great Britain’s exit from the EU.


In theory, there have been some conflicting constitutional issues between the ECJ and the Member States studied. However, in practice, it could be concluded that the national courts have accepted the supremacy of EU law.

Some of the tension between the EU and the Member States has been over the authority for the supremacy of EU law over their national law. For example, the Member States concerned claim that they derived the authority from their own constitutional rules, whereas the ECJ want them to rely on its jurisprudence. Another contentious issue is the ultra vires doctrine; it is possible in the future that the national courts disregard EU law if they deem the ECJ to have acted ultra vires. But that possibility is remote for the reasons explained in my essays on Germany and France’s approaches to the supremacy of EU law (Dorani, 2021a; Dorani, 2021b). The UK courts did not make much of the doctrine of ultra vires, but, obviously, that is no longer important after the UK withdrew from the EU following the 2016 EU Referendum.



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[i] The essays are inspired by my undergraduate law dissertation. I am and will remain grateful for the support I received from the University of Northampton during my undergraduate years, especially from my brilliant EU law lecturer Sarah Willis.

[ii] See my articles for a discussion of why it is significant, Dorani 2020b; Dorani, 2019b. See my book and interview with Professor Rahman Dag for a detailed discussion of the factors that might have also played a part in causing Brexit, Dorani, 2019a; Dag, 2019.

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