ABSTRACT

There is no mention of the supremacy of Community law [EU law] in the founding Treaties. The absence of any express provision is not, however, a gap in Community law but a result of diplomacy and caution. Indeed, an express provision would have confirmed the federal nature of the Community and thus dissuaded some Member States from acceding to the Communities. For that reason less controversial phraseology was used, for example, in Article 249 EC [Article 288 TFEU], which confers binding effect upon measures adopted by EU institutions, and in Article 10 EC [Article 4(3) TFEU], which requires that Member States abstain from taking measures capable of compromising the attainment of the objectives of the Treaties. However, the ToL, without any express provision having been inserted into the Treaties to this effect, in Declaration 17 confirms the case law of the ECJ on the principle of supremacy. Declaration 17 quotes an Opinion of the Council Legal Service on the Primacy of EC Law of 22 June 2007 which states that: “The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice”. Therefore, Declaration 17 does not make any changes as to the existence and meaning of the principle of supremacy, it simply confirms the current position of the ECJ on this matter.