The Doctrine that Dare Not Speak its Name: Uncovering EU Pre-emption

The principle of primacy of EU law determines how conflicts with Member States’ law ought to be solved, but it does not determine when EU and Member States’ law should be regarded as being in conflict – that is the purpose of the doctrine of EU preemption. Although some pioneering legal scholars and Advocates-General have been writing on Community or EU ‘pre-emption’ since the late 1970s, the ECJ has never expressly referred to that doctrine or even openly acknowledged its existence. However, over the last decade, references to ‘pre-emption’ by Advocates-General and legal commentators have become increasingly frequent and most EU law textbooks currently devote at least a few paragraphs to that doctrine. The purpose of this talk is to show how, in resolving conflicts between EU and Member States’ law, the ECJ follows some discernible patterns that may be conceptualized as a comprehensive doctrine of EU preemption. Arguably, that doctrine could provide a clearer picture of how EU law progressively limits Member States’ law-making and treaty-making powers than the ‘static’ competence system enshrined in the Treaty of Lisbon.