| dc.description.abstract | The European Union is a fully fledged, sui generis legal order. The doctrine of
supremacy, developed by the European Court of Justice in the seminal case of
Costa v ENEL established Union laws having primacy over domestic law of
the Member-States thereby rendering as non-applicable national law that was
deemed to infringe EU Law. Although the ECJ has clarified that this extends
to domestic constitutional law, this claim of authority has not been welcomed
in its entirety in any of the Member-States. This issue is encapsulated in the
so called ‘kompetenz-kompetenz’ debate, a phrase uttered by the German
Constitutional court. According to the Member-States, they retain the
ultimate authority to designate which law reigns supreme (regarding it as a
fundamental component of national sovereignty) and most importantly, to
what extent Union competence extends to. It is clear therefore that there is a
fundamental dichotomy over the position claimed by Union law, and that of
the Member-States. This has been described as eradicable conflict that must
inevitably lead to conflict between the Union legal order and the national
ones, with the outcome resulting in a legal revolution which will result in
in one of two situations: (i) the acceptance on behalf of the Member-States
of the Supremacy doctrine as enunciated by the ECJ or (ii) a clear rejection
of the ECJ’s claim and the positioning of national constitutional law as the
‘grundnorm’ of domestic Member-State law. The aim of this paper is, however,
to demonstrate that rather than an eradicable conflict, the current dichotomy
between the two legal orders is a necessary result of federalism. Under this
theory, the ‘conflict’ between the two systems will not necessarily lead to a
legal revolution, and that in fact, such diametrically opposed claims from two
sui generis legal orders within the one federal system are bound to occur in
a federal legal order. Federalism, by its very nature, is the legal fruition of
competing legal orders. It is proposed to undertake a comparative analysis
of some of the seminal decisions throughout the EU on supremacy, from
both the perspective of the Court of Justice and the most relevant emanating
from national courts. A teleological analysis of these legal positions will
then be undertaken within the competing frameworks of ‘conflict’ and ‘legal
pluralism’. Ultimately, the position that legal federalism, by its very nature,
engenders such a ‘conflict’ is proposed and defended. | en |
