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European Constitutional Law

European Constitutional Law (3rd edn)

Robert Schütze
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date: 29 May 2024

p. 1936. European Law II

Nature—Primacy/Pre-emptionlocked

p. 1936. European Law II

Nature—Primacy/Pre-emptionlocked

  • Robert Schütze

Abstract

This chapter begins with an analysis of the primacy doctrine. There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not shared by all the Member States. Indeed, according to their national perspective(s), the primacy of European law is relative: some national law is considered to be beyond the primacy of European law. The chapter then moves to the doctrine of pre-emption. This concept discusses to what extent European law ‘displaces’ national law; or how much legislative space European law still leaves to the Member States. The Union legislator is generally free to choose to what extent it wishes to pre-empt national law within a certain area. However, there are two possible constitutional limits to this freedom. First, the type of instrument used—regulation, directive, or international agreement—might limit the pre-emptive effect of Union law. And, second, the type of competence on which the Union act is based might also determine the capacity of the Union legislator to pre-empt the Member States.

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