Aston Law

2017-2018

I.Tutorial 3: Supremacy of EU Law

Aims
The primary aim of this tutorial is to highlight the importance of the doctrine of supremacy. By the
end of the tutorial you should be able to critically analyse its conception and expression by the ECJ.

Reading
General reading:
From your preferred text book:
 Craig and De Burca Chapter 9.
 Chalmers Chapter 5.

Case law
** Case 26/62 van Gend en Loos [1963] ECR 1
** Case 6/64 Costa v. ENEL [1964] ECR 585
Case 106/77 Simmenthal SpA [1978] ECR 629
These are short cases, please do read them in full. It is VITAL that you do!

Reaction of the national courts

Germany
These are all cases before the German Federal Constitutional Court (there is probably enough
secondary information available about these cases, if you don’t manage to read them in full):

Internationale Handelsgesellschaft [1974] 2 CMLR 540

Brunner v European Union Treaty [1994] 1 CMLR 57
2 BvE 2/08 Gauweiler v Treaty of Lisbon, judgment of 30 June 2009, available at
(http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html) (you are
not expected to read this judgment in full)
* Editorial Comments, ‘Karlsruhe has spoken: “Yes” to the Lisbon Treaty, but…’ (2009) 46 CMLRev
1023

UK
Factortame v Secretary of State for Transport (No 2) [1991] 1 AC 603
Thoburn v Sunderland City Council [2002] 3 WLR 247
R. (HS2) v Secretary of State for Transport [2014] UKSC 3

Remember to bring your copy of the Treaty to all tutorials.

Questions to discuss during the tutorial:

1. Exam type question: “The reasoning of the European Court of Justice in Van Gend en Loos and
Costa is fundamentally flawed. Had the Member States wanted EU law to be supreme and
directly effective, they would have explicitly laid down the principle in the Treaties.” Critically
discuss this statement. (In particular, I am looking for you to IDENTIFY the legal reasoning of
the Court and then consider how strong or weak it is).

2. Explain (and account for) the differences between the approaches of the ECJ and the national
courts in relation to the question of the supremacy of EU law. (In your answer, make reference
to more than one national court).

BL3503: European Union Law

Ryan Murphy
Updated September 2017 (by Martin Brenncke) 1
Aston Law
2017-2018

BL3503: European Union Law

Ryan Murphy
Updated September 2017 (by Martin Brenncke) 2