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Community and the French constitution

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  1. Introduction
  2. The constitutionnal text already includes ambiguities
    1. The constituents gave little place to Europe, and showed a moderated will of its supremacy
    2. Reinforced by article 54, showing the will to preserve the Constitution
  3. In practice, primacy was hardly given to community law.
    1. French courts have known different but globally slow evolutions
    2. The position of the courts has been even stronger about the primacy over the Constitution
  4. Conclusion

This quotation makes truly central the question of the relations between Community Law and national laws. Community Law enjoys the privilege of primacy over national laws, as a result of the Costa judgment of the European Court of Justice (ECJ) in 1964. In contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on coming into force , became an integral part of the legal system of the member states and which their courts are bound to apply. This was reinforced by the prior Van Gend En Loos Act on direct effect of Community Law (1963), the Internationale Handgesellschaft Act of 1970, the Nold Act of 1974, and the Simmenthal Act of 1978 to name but a few. This European Institution has established a broad application of the ?primacy? and ?direct effect? theories. More recently, it was the final project for European Constitution, in article I-6, that had re-affirmed this principle. The Lisbon Treaty's position is however less clear: only in the annex 17, does it state that the primacy principle is a ?fundamental principle?.

Primacy is indeed an "essential condition" (P. Pescatore) for Community Law; otherwise it has no reason to exist. Member States have transferred sovereignty to the European Union, whose legal order cannot hence be overridden by national laws. In this matter, the French case is particular: apart from the numerous times France has been an impediment to European Integration, it was only in 1992, with the addition of title XV to the Constitution that Europe entered the French supreme law. Indeed the Constitution, which is accorded supreme power in France, is the warrant of the national sovereignty, while Community Law truly puts borders to it. As a result, conflicts between the two legal orders cannot be avoided.

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