The doctrine of primacy remains one of the tenets of European Union (EU) law. Over 50 years after the Court of Justice proclaimed it in the famous case Costa v ENEL, it remains largely uncodified and case-law driven. And yet, it is being followed by courts around the European Union, even though it largely means that EU law is supreme over national laws of whatever kind. This article argues that the Court of Justice made a gamble with its legitimacy. Without an explicit legal basis for primacy in the original founding treaties of the European Communities, the Member States could have simply argued that the Court acted ultra vires and, consequentially, they would not accept such far reaching jurisprudence. And yet, the Court’s power of authority has largely won. So, this gamble with Court’s legitimacy paid off. While occasionally the application of doctrine of primacy over national constitutions is challenged, it is a generally accepted fundamental doctrine of EU law. Furthermore, it is of great practical significance as, in accordance with Simmenthal judgment, all national courts when faced with domestic law, which is in breach of directly effective EU law, have the obligation to set aside national rules and solve the case on the basis of EU law. To an outsider, it may be rather difficult to navigate through the meanders of Court’s jurisprudence. At best, it looks patchy. That, however, is a direct result of how the system of co-operation between national courts and the Court of Justice is designed. As cases analysed in the present article prove, the preliminary ruling procedure has been pivotal for development of the doctrine in question. It may, or sometimes must, be used whenever national courts have doubts regarding interpretation of EU law or validity of secondary legislation. Yet, the questions may only be asked if the answer is necessary for the domestic adjudication. Consequentially, the doctrine of primacy developed in an incremental fashion, as new questions about its scope and method of application were emerging in national courtrooms. As the judgments analysed in the present article prove, not only EU founding treaties, but also other binding acts forming EU acquis, have primacy over national law. This covers not only domestic laws applicable erga omnes, but also individual administrative acts. Formulated in such a way, the doctrine of primacy has evolved into a principle that guarantees the effectiveness of EU law.

Bibliography

Authored books

1. Aalto P, Public Liability in EU Law. Brasserie, Bergaderm and Beyond (Hart Publishing 2011) (in English).

2. Albi A, EU Enlargement and the Constitutions of Central and Eastern Europe (CUP 2005) (in English).

3. Alter K, Establishing the Supremacy of European Law. The Making of an International Rule of Law in Europe (OUP 2003) (in English).

4. Andersen S, The Enforcement of EU Law. The Role of the European Commission (OUP 2012) (in English).

5. Arnull A, The European Union and its Court of Justice (2nd ed, OUP 2006) (in English).

6. Broberg M and Fenger N, Preliminary References to the European Court of Justice (2nd ed, OUP 2014) (in English).

7. Craig P, The Lisbon Treaty. Law, Politics, and Treaty Reform (OUP 2010) (in English).

8. De Witte B, ‘Direct Effect, Primacy, and the Nature of the Legal Order’ in Craig P and G de Búrca, The Evolution of EU Law (2nd ed, OUP 2011) (in English).

9. Klamert M, The Principle of Loyalty in EU Law (OUP 2014) (in English).

10. Lauterpacht E, The Life of Hersch Lauterpacht (CUP 2010) (in English).

11. Maraini D, Train to Budapest (Arcadia Books 2010) (in English).

12. Piris J-C, The Constitution for Europe. A Legal Analysis (CUP 2010) (in English).

13. Piris J-C, The Lisbon Treaty. A Legal and Political Analysis (CUP 2010) (in English).

14. Prechal S, Directives in EC Law (2nd ed, OUP 2005) (in English).

15. Sands P, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” (Knopf Publishing 2016) (in English).

Edited books

16. Adams M and others (eds), Judging Europe’s Judges: The Legitimacy of the Case Law of the European Court of Justice (Hart Publishing 2013) (in English).

17. Biondi A and Eeckhout P and Ripley S (eds), EU Law after Lisbon (OUP 2012) (in English).

18. Capik A, ‘Five Decades since Van Gend en Loos and Costa came to town: primacy, direct and indirect effect revisited’ in Łazowski A and Blockmans S (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016) (in English).

19. De Witte B, ‘The Continuous Significance of Van Gend en Loos’ in Maduro M and Azoulai L (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) (in English).

20. Fennelly N, ‘The European Court of Justice and the Doctrine of Supremacy: Van Gend en Loos; Costa v. ENEL; Simmenthal’ in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) (in English).

21. Hofmann H, ‘Conflicts and Integration: Revisiting Costa v ENEL and Simmenthal II’, in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010)(in English).

22. Lafranque J, ‘“Community, Identity, Stability”: Ideals and Practice in Building a Bridge between the Legal Systems of the European Union and one of the Smallest of the “Brave New World”’ in Łazowski A (ed), The Application of EU Law in the New Member States. Brave New World (T. M. C. Asser Press 2010) (in English).

23. Łazowski A, ‘From EU with Trust: the Potential and Limits of the Mutual Recognition in the Third Pillar from the Polish Perspective’ in Vernimmen-Van Tiggelen G and Surano L and Weyembergh A (eds), The future of mutual recognition in criminal matters in the European Union / L’avenir de la reconnaissance mutuelle en matière pénale dans l’Union européenne (Editions de l’Université de Bruxelles 2009) (in English).

24. Leczykiewicz D, ‘Effectiveness of EU Law before National Courts: Direct Effect, Effective Judicial Protection, and State Liability’ in Arnull A and Chalmers D, The Oxford Handbook of European Union Law (OUP 2015) (in English).

25. Pernice I, ‘Costa v. ENEL and Simmenthal: Primacy of European Law’ in Maduro M and Azoulai L (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) (in English).

26. Pescatore P, ‘Van Gend en Loos, 3 February 1963 – a View from Within’ in Maduro M and Azoulai L (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) (in English).

27. Prinssen J and Schrauwen A (eds), Direct Effect: Rethinking a Classic of EC Legal Doctrine (Groningen 2002) (in English).

28. Rasmussen M, ‘From Costa v ENEL to the Treaties of Rome: A Brief History of a Legal Revolution’ in Maduro M and Azoulai L (eds), The Past and Future of EU Law: The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart Publishing 2010) (in English).

29. Rosas A and Levits E and Bot Y (eds), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case-law (T. M. C. Asser Press 2013) (in English).

30. Sikora A, ‘Financial penalties for non-execution of judgments of the Court of Justice’ in Łazowski A and Blockmans S (eds), Research Handbook on EU Institutional Law (Edward Elgar Publishing 2016) (in English).

31. Trybus M and Rubini L (eds), The Treaty of Lisbon and the Future of European Law and Policy (Edward Elgar Publishing 2012) (in English).

Journal articles

32. Besselink L, ‘The parameters of constitutional conflict after Melloni’ (2014) 39 ELRev 531 (in English). 33. Bobek M, ‘Thou Shalt Have Two Masters; The Application of European Law by Administrative Authorities in the New Member Status’ (2008) 1 Rev.EAL 51, http:// dx.doi.org/10.7590/REAL_2008_01_04 (in English).

34. Cavallone G, ‘European arrest warrant and fundamental rights in decisions rendered in absentia: the extent of Union law in the case C-399/11 Melloni v. Ministerio Fiscal’ (2014) ECLR 19, http://dx.doi.org/10.5235/219174414811783351 (in English).

35. Craig P, ‘The Legal Effect of Directives: Policy, Rules and Exceptions’ (2009) 34 ELRev 349 (in English). 36. De Boer N, ‘Addressing rights divergence under the Charter: Melloni’ (2013) 50 CMLRev 1083 (in English).

37. De Visser M, ‘Dealing with Divergences in Fundamental Rights Standards’ (2013) MJECL 576, https://doi.org/10.1177/1023263X1302000407 (in English).

38. Drake S, ‘Twenty years after Von Colson: the impact of “indirect effect” on the protection of the individual’s community rights’ (2005) 30 ELRev 329 (in English).

39. Halberstam D, ‘“It’s the Autonomy, Stupid!” A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward’ (2015) 16 GLJ 105, https://dx.doi. org/10.2139/ssrn.2567591 (in English).

40. Horsley T, ‘Reflections on the Role of the Court of Justice as the “Motor” of European Integration: Legal Limits to Judicial Lawmaking’ (2013) 50 CMLRev 931 (in English).

41. Kowalik-Bańczyk K, ‘Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law’ (2005) 10 GLJ 1355, http://dx.doi.org/10.1017/ S207183220001436X (in English).

42. Krenn C, ‘Autonomy and Effectiveness as Common Concerns: A Path to ECHR Accession After Opinion 2/13’ (2015) 16 GLJ 147, http://dx.doi.org/10.1017/S2071832200019453 (in English).

43. Łazowski A and Wessel R, ‘When Caveats Turn into Locks: Opinion 2/13 on Accession of the European Union to the ECHR’ (2015) 16 GLJ 179, http://dx.doi.org/10.1017/ S2071832200019477 (in English).

44. Øby Johansen S, ‘The Reinterpretation of TFEU Article 344 in Opinion 2/13 and its Potential Consequences’ (2015) 16 GLJ 169, https://doi.org/10.1017/S2071832200019465 (in English).

45. Peers S, ‘The EU’s Accession to the ECHR: The Dream Becomes a Nightmare’ (2015) 16 GLJ 213, http://dx.doi.org/10.1017/S2071832200019489 (in English).

46. Pliakos A and Anagnostaras G, ‘Fundamental Rights and the New Battle over Legal and Judicial Supremacy: Lessons from Melloni’ (2015) 34 YEL 97, http://dx.doi.org/10.1093/ yel/yev011 (in English).

47. Tinsley A, ‘Note on the Reference in Case C-399/11 Melloni’ (2012) 3 NJECL 19, https:// doi.org/10.1177%2F203228441200300105 (in English).

48. Verhoeven M, ‘The “Constanzo Obligation” of National Administrative Authorities in the Light of the Principle of Legality: Prodigy or Problem Child?’ (2009) 5 Croatian Yearbook of European Law and Policy 65 (in English).

49. Vervaele J, ‘The European Arrest Warrant and Applicable Standards of Fundamental Rights in the EU’ (2013) Rev.EAL 37 (in English).

Websites

50. Andrzej Duda o UE: Wyimaginowana wspólnota, z której dla nas niewiele wynika (dziennik.pl 11.09.2018) <https://wiadomosci.dziennik.pl/polityka/artykuly/580955, prezydent-andrzej-duda-ue-wyimaginowana-wspolnota-lezajsk.html> (accessed: 31.05.2019) (in Polish).

51. ‘Ohliad pretsedentnoho prava Sudu Yevropeі̆skoho Soiuzu u sferakh, shcho rehuliuiutsia Uhodoiu pro asotsiatsiiu mizh Ukraïnoiu ta YeS’ [‘An Overview of the Case Law of the European Union Court in the Areas Governed by the Association Agreement Between Ukraine and the EU’] <http://association4u.com.ua/images/components/comp1/ EULaw/Review-of-the-case-law-of-the-EU-Court-of-Justice---fields-covered-by-theAssociation-Agreement---2018.1.1.ukr.pdf> (accessed: 31.05.2019) (in Ukrainian).