Author: *Dr Sharifullah Dorani
Original Publication: Political Reflection
Date of Publication: 23 November 2021
Photo credit: Regan Dsouza/Pexels
Key Comment
This article examines France’s constitutional and judicial response to the European Union’s doctrine of supremacy, tracing how French courts and political institutions gradually accepted, resisted, or reshaped the principle that EU law prevails over conflicting national law. This topic is relevant to International Relations because debates over the primacy of EU law go to the heart of how sovereign states share, pool, and limit their authority within supranational institutions such as the European Union.
Summary of the Article
The article begins by outlining France’s legal and constitutional framework and its dual court structure. As a monist state, France incorporates international law directly, and Article 55 of the 1958 Constitution gives treaties higher authority than statutes, subject to reciprocity. This sets the stage for evaluating France’s reaction to the European Court of Justice’s development of EU legal supremacy.
The article then traces French judicial responses. The Cour de Cassation (CC) accepted EU supremacy early in Vabre (1975), relying on both Article 55 and the “special nature” of EU law. The Conseil d’état (CE), however, resisted for decades, rejecting the ECJ’s jurisprudence through doctrines such as Acte Clair, refusing to review statutory compatibility with EU law, and issuing defiant rulings such as Semoules (1970) and Cohn-Bendit (1980). Political actors—including the Constitutional Court and National Assembly—reinforced this resistance.
By the late 1980s and early 1990s, pressure from constitutional developments, government intervention, legal uncertainty, and ECJ judgments prompted a shift. In Nicolo (1990), the CE implicitly accepted EU supremacy. In Re Boisdet (1991) and Rothmans / Arizona Tobacco (1993), the Court explicitly gave priority to EU regulations and directives, even awarding state liability damages in line with Francovich.
The final issue concerns whether EU law can supersede the French Constitution. In Sarran (1998), the CE held that treaties cannot override the Constitution, suggesting constitutional supremacy. Yet the frequent constitutional amendments required before ratifying EU treaties indicate that France effectively reshapes its Constitution to accommodate EU law—a paradox reflecting deeper tensions in French sovereignty.
The article concludes that although French courts now accept EU primacy over ordinary legislation, ambiguity remains concerning EU law’s relationship with the Constitution and whether supremacy is grounded in EU jurisprudence or French constitutional authority.
Conclusion
France’s journey toward recognising the supremacy of EU law has been long and institutionally complex. While the CC embraced EU legal primacy early on, the CE and the Constitutional Court initially resisted, eventually aligning with ECJ jurisprudence. Yet constitutional supremacy remains unresolved, leaving doctrinal uncertainty about the ultimate hierarchy of norms. This tension continues to shape France’s constitutional identity and illustrates broader challenges for states operating within supranational legal orders.
➡Link to the article: The Primacy of EU Law over French Law: EU Law Takes Precedence over National Law?
*Dr Sharifullah Dorani holds a PhD from Durham University on America’s Afghanistan War, a Master of Laws from University College London, and a degree in law from the University of Northampton, all in the UK. He is the author of numerous scholarly articles and two acclaimed books: The Lone Leopard, a novel set in Afghanistan, and America in Afghanistan, published by Bloomsbury Publishing. He is the founder of CEPSAF and serves as the South Asia and Middle Eastern Editor at CESRAN International. All of Dr Dorani’s work is written to the highest academic standards, widely indexed by Google Scholar, and available in the libraries of hundreds of institutions worldwide, including Oxford and Harvard.