THE PRIMACY OF UNION LAW OVER INCOMPATIBLE NATIONAL MEASURES: BEYOND DISAPPLICATION AND TOWARDS A REMEDY OF NULLITY?

Dougan, M ORCID: 0000-0002-5835-1351 (2022) THE PRIMACY OF UNION LAW OVER INCOMPATIBLE NATIONAL MEASURES: BEYOND DISAPPLICATION AND TOWARDS A REMEDY OF NULLITY? Common Market Law Review, 59 (5). pp. 1301-1332. ISSN 0165-0750, 1875-8320

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Abstract

Recent ECJ case law suggests that there are exceptional circumstances when the principle of primacy should not merely require the disapplication of national rules that are incompatible with directly effective Union acts, but in fact obliges the domestic courts to regard certain incompatible national measures as null and void. It is argued that these developments are evolutionary rather than revolutionary: as a matter of constitutional principle, it does not fall outside the established framework governing Union-Member State legal relations, for the principle of primacy to extend its legal effects beyond mere disapplication. However, the relevant case law offers little clear guidance about precisely when an incompatibility with directly effective Union law should oblige the national court to treat a given domestic measure as non-existent. The rulings address very different legal and factual situations, and while it is possible to suggest certain common characteristics or criteria, it must still be left to future case law to determine how far a remedy of nullity should supplement or even displace the traditional expectation of disapplication.

Item Type:	Article
Uncontrolled Keywords:	4801 Commercial Law, 48 Law and Legal Studies, 4807 Public Law, 16 Peace, Justice and Strong Institutions
Divisions:	Faculty of Humanities & Social Sciences > School of Law and Social Justice
Depositing User:	Symplectic Admin
Date Deposited:	28 Jun 2022 14:20
Last Modified:	24 Jan 2026 03:44
DOI:	10.54648/COLA2022093
Related Websites:	Publisher
URI:	https://livrepository.liverpool.ac.uk/id/eprint/3157394
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