1. Meaning of Primacy of EU Law

(A) Definition

The primacy (supremacy) of EU law means:

When EU law conflicts with national law, EU law prevails and national law must be disapplied.

This ensures:

• uniform application of EU law,
• legal certainty,
• effectiveness of EU integration.

(B) Key Idea

EU law is not necessarily “higher” in hierarchy, but it is:

functionally superior in cases of conflict

National courts must:

• set aside conflicting domestic rules (even constitutional ones in certain interpretations),
• ensure full effectiveness of EU norms.

2. Landmark Case Law on Primacy of EU Law

1. Van Gend en Loos (1963)

Principle:

EU law creates directly enforceable rights for individuals.

Importance:

Introduced direct effect, making EU law operational in national courts.

2. Costa v ENEL (1964)

Principle:

EU law cannot be overridden by national law.

Key holding:

• Member States transferred sovereign powers to the EU
• EU law must prevail over conflicting national law

This is the foundational case establishing primacy.

3. Internationale Handelsgesellschaft (1970)

Principle:

EU law prevails even over national constitutional provisions.

Importance:

• National constitutional law cannot override EU law
• Established constitutional-level supremacy of EU law

4. Simmenthal (1978)

Principle:

National courts must disapply conflicting national law immediately.

Key rule:

• No need to wait for constitutional review
• EU law must be given immediate effect

5. Factortame (1990, UK case)

Principle:

National courts must suspend national legislation conflicting with EU law.

Importance:

Confirmed practical supremacy of EU law over parliamentary statutes.

3. Concept of Constitutional Identity

(A) Definition

Constitutional identity refers to:

The core constitutional values, structures, and fundamental principles that define a Member State’s constitutional order.

These often include:

• democratic structure,
• fundamental rights system,
• territorial integrity,
• national language,
• separation of powers,
• basic constitutional structure.

(B) Legal Basis in EU Law

Article 4(2) TEU:

EU must respect:

• national identities,
• inherent in fundamental constitutional structures,
• essential state functions.

(C) Meaning in Practice

Constitutional identity acts as:

• a limit to EU integration, and
• a constitutional shield for Member States

4. Constitutional Identity vs Primacy Conflict

This creates a legal tension:

5. Key Case Law on Constitutional Identity Limits

1. Internationale Handelsgesellschaft (1970)

Importance:

Even though EU law has primacy, the Court acknowledged:

• fundamental rights are part of EU law
• constitutional traditions of Member States matter

This opened the door to identity-based arguments.

2. Nold v Commission (1974)

Principle:

EU law respects fundamental rights derived from:

• constitutional traditions of Member States

Importance:

Early recognition of constitutional influence.

3. Omega Spielhallen (2004)

Facts:

Germany banned laser tag game on dignity grounds.

Issue:

Conflict between EU free movement and German constitutional dignity.

Holding:

CJEU allowed restriction based on:

• human dignity as part of national constitutional identity

Importance:

First strong recognition of identity-based justification.

4. Sayn-Wittgenstein (2010)

Facts:

Austria banned noble titles.

Holding:

CJEU upheld restriction due to:

• Austrian constitutional identity (equality principle)

Importance:

Explicit recognition of constitutional identity clause (Art. 4(2) TEU).

5. Taricco II (M.A.S. case) (2017)

Principle:

If EU law threatens fundamental constitutional principles:

• national courts may refuse to apply it

Importance:

Introduced “constitutional identity + fundamental rights exception” to primacy.

6. German Federal Constitutional Court – Lisbon Treaty Case (2009)

Principle:

Germany’s Basic Law has an “identity core” that cannot be transferred to EU level.

Held:

• EU integration is limited by German constitutional identity
• ultra vires and identity review are possible

Importance:

Strongest national constitutional identity doctrine in Europe.

7. PSPP Judgment (2020 – German Court)

Principle:

National constitutional court can review EU acts if:

• they exceed EU competences (ultra vires), or
• violate constitutional identity

Importance:

Open conflict with CJEU primacy doctrine.

6. CJEU Position on Constitutional Identity

The CJEU generally maintains:

(A) Primacy is unconditional

• EU law prevails even over constitutional law

(B) But identity is considered in interpretation

• Article 4(2) TEU is used as a balancing tool

(C) No full national override allowed

Even identity cannot:

• destroy EU legal unity,
• negate effectiveness of EU law.

7. Doctrinal Conflict: Who is the Final Arbiter?

EU Perspective:

• CJEU is final interpreter of EU law
• primacy is absolute in EU legal order

National Constitutional Courts:

• constitutional identity sets ultimate limits
• constitutional courts may resist EU acts

This creates a “pluralist constitutional conflict model” in Europe.

8. Key Legal Doctrines Emerging

(1) Doctrine of Primacy

EU law prevails over national law in case of conflict.

(2) Doctrine of Direct Effect

Individuals can enforce EU rights in national courts.

(3) Doctrine of Constitutional Identity

Member States retain core constitutional principles immune from full EU override.

(4) Doctrine of Cooperative Constitutionalism

EU and national courts must engage in dialogue, not hierarchy conflict.

(5) Doctrine of Limited Sovereignty Transfer

Member States transfer only specific competences to EU institutions.

9. Current Legal Position (Balanced View)

Modern EU constitutional order operates on a tension-based equilibrium:

• Primacy ensures uniform EU law application
• Constitutional identity ensures national constitutional protection

Neither doctrine fully eliminates the other.

Conclusion

The relationship between primacy of EU law and constitutional identity is not one of absolute hierarchy but of managed constitutional tension.

• EU law doctrine (Costa, Simmenthal) establishes strong primacy
• Constitutional courts (Germany, Italy, Poland in some cases) assert identity-based limits
• CJEU recognizes identity under Article 4(2) TEU but does not allow it to override EU law entirely

Final synthesis:

EU law claims supremacy for uniformity, while constitutional identity preserves national constitutional uniqueness. The European legal order survives through continuous judicial dialogue between these two principles rather than absolute dominance of either.