The doctrine of supremacy of Community law performs the function of protecting Community competence by holding that where there is a conflict between Community and national law EC law must prevail. Such a doctrine is dependent, however, on a

The doctrine of Community pre-emption has identified the doctrine with indirect normative conflicts, Weatherill has equally viewed the pre-emption phenomenon in terms of the Community having "acquired exclusive competence in some sectors" to the effect that " MS powers are pre-empted and the Community has 'occupied the field, "Pre-emption is a question of determining competence, national action is precluded not because the rules of Community law apply in the field and prevail in the event of conflict with national provisions, but instead where, even though there are no Community rules with which national rules can come into conflict, the national action is impermissible. Pre-emption in this sense logically precedes supremacy." In areas of shared competence the doctrine of pre-emption must be respected before the adoption of secondary acts, Cassis de Dijon.  The doctrine of pre-emption must also be respected after the adoption of secondary acts; this may lead to full pre-emption, Commission v. UK and partial pre-emption, ex parte Gallagher.

Pre-emption is, consequently, characterised as "the constitutional re-distribution of competences between the MS and the Community."  If the Court were to apply fully fledged pre-emption the consequence would be that MS would be precluded from any international agreement in the area in question.  The Court stands halfway between these two concepts, prohibiting those international obligations which might affect those rules or alters their scope, this is more than supremacy but less than pre-emption.

The Community's competence is construed as being “exclusive” and the essential problem is to define the scope of the Community competence.  National legislators would be automatically excluded from the legislative field the MS would retain a “concurrent power to regulate matters falling within the reach of the Community's power, as long as in so doing they do not create a conflict with the rules adopted by the Community” A third conception of the doctrine of Community pre-emption has championed a "flexible framework for pre-emption analysis" that would "include all instances of actual and potential conflict between MS law and Community legislation.

The three identified pre-emption types are field pre-emption, rule pre-emption and obstacle pre-emption.  Field pre-emption has been defined to refer to situations "where state law is found not to conflict in its actual operation with the substantive policies. Rule pre-emption has been fairly interpreted as being in "actual conflict" with EC Law.  MS law will be pre-empted wherever it stands "as an obstacle to the accomplishment and execution of the full purpose and objectives of Congress".  Field pre-emption refers to those situations, where the Court does not investigate any material normative tension, but simply excludes the MS on the ground that the Community legislator has exhaustively legislated for the field; this is the most powerful format of Community pre-emption, any national legislation within the occupied field is prohibited. The reason for the total exclusion lies in the perceived fear that any supplementary national action may endanger or interfere with the strict uniformity of the Community regime.

Shared competence between the Community and MS are set out in Art 3 EC.  The total prohibition for national legislators from exercising their shared competences will to a certain extent reproduce the effects of a "real" exclusive competence within the occupied field. Underlying the idea of field pre-emption is a purely abstract conflict standard: national legislation conflicts with the jurisdictional objective of the Community legislator to establish an absolutely uniform legislative standard European Court in the context  of total harmonisation under Article 94 EC.

In Ratti the ECJ found that Directive 73/173 pre-empted any national measures falling within its scope, MS were therefore "not entitled to maintain, parallel with the rules laid down by the Directive for imports, different rules for the domestic market In Commission v. Germany, the Court claimed that "it is one of the fundamental characteristics of a common organisation of the market that in the sectors concerned the MS can no longer take action through national provisions adopted unilaterally", wherever the organisation was characterised by comprehensive rules. 

The Court noted that the Regulation did not seek to establish uniform prices, but that the organisation was "based on freedom of commercial transactions under fair competitive conditions  Such a scheme precludes the adoption of any national rules which may hinder, directly or indirectly, actually or potentially, trade within the Community. Article 3(3) of Directive 89/622 concerned the labelling of tobacco products and required that health warnings should cover "at least 4 % of the corresponding surfacesCommission v. United Kingdom (Dim-Dip) cross views the ECJ ruling as an illustration of "direct conflict pre-emption,  the ECJ has long given Art 10 EC as the constitutional rationale underlying the twin doctrines of supremacy and pre-emption.

In conclusion the supremacy of EC Law still clearly retains its ‘bi-dimensional’ character despite the views of supremacy asserted by the ECJ in Simmenthal and Internationale Handelsgesellschaft.  Supremacy and pre-emption are twin doctrines; there is no supremacy without pre-emption. The doctrine of pre-emption is a theory of legislative conflict. The DoS is a theory of conflict resolution.  For the Community legal order, the absolute supremacy of EC law means that all Community law prevails over all national law. The absolute nature of Community supremacy has, however, not given rise to an absolute doctrine of Community pre-emption. The scope of pre-emption has been a relative concept in the Community legal order: the question is not whether Community legislation pre-empts national law, but to what degree? 

Bibliography:

Cases:

1. Amministrazione delle Finanze dello Stato v Simmenthal (Case 106/77 [1978] ECR 629)
2. Brunner v. European Union treaty [1994] 1 CMLR
3. Hauer v. Land Rheinland-Pfalz (Case 44/79 [1979] ECR 3727)
4. Internationale Handlesgellschaft v Einfur-und Vorratsstelle (Case 11/70 [1970] ECR 1125)
5. Felixtowe Dock and Railway Co v British Transport Docks Board [1976]
6. R v Secretary of State for Transport, ex parte Factortame (No 2) (Case C213/89 [1991] 1 AC 603 (HL)
7. R v Secretary of State for Transport, ex parte Factortame (No 1) (Case C221/89 [1990] 3 WLR 852
8. R v Secretary of State for Transport, ex parte Factortame Ltd & Ors [1990] 2 AC 85
9. R v Secretary of State for Transport, ex parte Factortame [1991] ECR I-3905
10. R, v Secretary of State for Transport, ex parte Factortame Ltd. And Others (No.1) (Case C-213/89 [1990] ECR 1-2433)
11. Hauer v. Land Rheinland-Pfalz (Case 44/79 [1979] ECR 3727)
12. Case 148/78, Criminal proceedings against Tullio Ratti, [1979] ECR 162
13. Case 48/85, Commission v. Germany, [1986] ECR 2549.
14. Case 31/78, Francesco Bussone v. Italian Ministry of Agriculture, [1978] ECR 2429

Legislation:

EC Treaty, Art.10 (ex. Art.5) EC  and Article [249] EC

Journal Articles:

1. The very slowly emergent Doctrine of Community Pre-emption'. Common Market Law Review 43(4): 1023-1048.
2. The doctrine of supremacy of EC law: developments and controversies, Tanel Kerikmäe, pp. 173-174
3. Stephen Weatherill, "Pre-emption, harmonisation and the distribution of competence to regulate the Internal Market
4. Weiler, "The external legal relations of non-unitary actors: Mixity and the federal principle", in Weiler, The Constitution of Europe (CUP, 1999)
5. Robert Schutze, supremacy without pre-emption? the very slowly emergent doctrine of community pre-emption, C.M.L. Rev. 2006, 43(4), 1023-1048
6. Stephen Weatherill, Better competence monitoring, E.L. Rev. 2005, 30(1), 23-41
7. Antonio Goucha Soares, Pre-emption, conflicts of powers and subsidiarity, E.L. Rev. 1998, 23(2), 132
8. J. Weiler, “The Transformation of Europe” (1991) 100 Yale L.J. 2403;
9. M. Pollack, “Creeping Competence: The Expanding Agenda of the European Community” (1994) 14 Journal of Public Policy 95;
10. A. Stone Sweet, W. Sandholtz and N. Fligstein (eds), The Institutionalisation of Europe (Oxford, OUP, 2001);
11.  Special Issue, “Dynamics of Formal and Informal Institutional Change in the EU” (2003) 10 Journal of European Public Policy (No.6).
12. The Law of the Single European Market: Unpacking the Premises (Hart, 2002), pp. 41-74, at 63  

 

Websites:

The Importance of the Doctrine of Supremacy. 123HelpMe.com. 18 Jan 2008- <http://www.123HelpMe.com/view.asp?id=150161>.

http://www.juridica.ee/juridica_en.php?document=en/articles/1998/4/18300.SUM.php

http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/supremacyofeclaw.htm

   -18 Jan 08

http://www.blackwell-synergy.com/doi/abs/10.1111/1467-9337.00118?cookieSet=1&journalCode=raju

Textbooks:

1. EU Law, Text, Cases and Materials 3rd Ed. Craig and De Burca
2. EU Law-Text, Cases and Materials, Third Edition. Paul Craig, Grainne De Burca
3. Bradley and Ewing Constitutional and Administrative Law, 13th Ed., 2003,
4. P.Craig and G. De Búrca (eds.), the Evolution of EU Law (Oxford Press, 1999)
5. Stephen Weatherill, Law and Integration in the European Union (Clarendon Press, 1995)
6. Barnard and Scott, The Law of the Single European Market: Unpacking the Premises (Hart, 2002)
7. EU Treaties & Legislation 2007-2008, Nigel Foster (Oxford Press, 2007)
8. Margot Horspool, European Union Law, 3rd Ed, Butterworths 2003

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