One of the grey areas in European Union law is the primacy of community law in relationship to the constitutions of the Member States. As the treaties have encroached more and more upon the national sovereignty of Member States, this has become a fraught issue. It has resulted in a staunch defence of sovereignty or a surrender of the national prerogative. The country having the strongest debate upon this issue is France.
In a recent case at the Conseil D’Etat, Arcelor had requested a ruling on whether EU law violated the principle of equality in the French Constituion as steel companies had to comply with climate change laws whereas the competing industrial sector of plastics was exempt. The Conseil D’Etat declined to make a ruling and referred the case to th European Court of Justice. This has caused a debate in France as to whether the French constitution is now subordinate to the European Court of Justice.
The French court’s decision not to conduct a constitutional test on EU legislation is seen as significant as it arguably places France’s constitution below the ECJ in the legal hierarchy.
Although the supremacy of EU law over national law has been well-established, the status of national constitutions has been less clear not only in France but also elsewhere, including Germany.
Leading newspaper Le Monde was quick to predict on the day of the ruling that sovereignists and eurosceptics would probably interpret the judgement as a “Waterloo” of French sovereignty – something which became a self-fulfilling prophecy as sovereignists were eager to stress that even Le Monde called the ruling a “Waterloo.”
There is some debate as to whether this was the groundbreaking referral that some commentators have stated. As the ruling concerned EU law, it has been argued that the Conseil D’Etat was only deferring to the European Court of Justice on this matter as equality was a governing principle with European law. Therefore the European Union and the French Constitution are complementary.
Despite the radical arguments of some who view the entry into the EEC as a watershed that fundamentally abrogated British sovereignty, the right of Parliament to bind the powers of its successor is not a recognised convention yet. Given the political will and a majority in Parliament, the United Kingdom could democratically withdraw from the European Union and assert the primacy of British law. The illiberal EU may not recognise self-determination except as an entry principle, but the constitutional recognition of European law is a parliamentary derogation, nothing more.