2010 | 4(99) | 63-81
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DISPUTE OVER THE SUPREMACY OF EUROPEAN LAW UNDER THE TREATY OF LISBON (Spór o prymat prawa europejskiego po wejsciu w zycie Traktatu z Lizbony)

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Addressing the issue of a dispute over the supremacy of EU law under the Treaty of Lisbon, it should be noticed that the principle of precedence of EU law is among its most controversial principles and has been a subject of dispute since its early days. The position of European Court of Justice in this respect may be described as follows: 1) EU law has precedence over the provisions of domestic law which are inconsistent with it, 2) ETJ has exclusive competence to decide on the validity of legal acts of the European Union, 3) member states cannot invoke their domestic legislation, including that of constitutional rank, to justify non-compliance with EU law. Moreover, the jurisprudence of constitutional courts shows that the principle of precedence EU law has not been unconditionally accepted. Contrary to ECJ case law, they contest the possibility of application of EU law in the event that it does not comply with domestic norms of constitutional rank, in particular the fundamental rights guaranteed in the constitution. The Treaty of Lisbon does not resolve the dispute over the principle of precedence of EU law. Even if not explicitly declared in the Treaty, it is reflected in the Declaration No 17 annexed thereto. As a consequence of such approach to the principle of precedence by the Treaty of Lisbon, the principle will probably remain the subject of different interpretation by the ECJ and the constitutional courts of EU member states. First judgments of constitutional courts (particularly the German Federal Constitutional Court) in this respect seem to confirm such statement. However, due to a flexible approach applied to this matter, the principle of precedence of EU law, despite all the controversies surrounding it, is accepted in the member states which would not possible accept its explicit declaration in the text of the Treaty. The dispute over precedence of UE law remains unsolved after the Treaty of Lisbon, as it was before it entered into force. It seems that, in this situation, the best advice is to avoid such conflicts. As concerns the relation between constitutional law and primary law this goal could be achieved by an a priori (preventive) review of the conformity of the treaty with the constitution. On the other hand, for the purposes of elimination of non-conformity of secondary legislation and the constitution the appropriate mechanisms provided for in the treaties should be used first. However, own national interests of the member state should be addressed and protected in the phase of adoption of legal acts of the Union.
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  • Agnieszka Kastelik-Smaza, for postal address contact the journal editor
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