A.  Introduction

The primacy of Community law over national law of the EC/EU Member States was recognized as one of the constitutive principles of the Community legal order as early as before the signing of the Treaty establishing a Constitution for Europe on 29 October 2004. The primacy principle together with the principles of direct effect and of uniform applicability are believed to constitute not only the foundation of effectiveness of the Community legal order but also play the role of the pillars of the unofficial European Constitution. The primacy principle is even seen as the embodiment of actual transfer of constitutional power to Europe.

Article I-6 of the Constitutional Treaty states: "The Constitution and law adopted by the institutions of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." The inclusion of this principle in Title I, Part I of the Treaty emphasizes its constitutive significance for the EU legal order. From this standpoint, it is recognized as reinforcing the position of the primacy principle in comparison with its role as an unwritten principle of primary Community law.

The role of the European Court of Justice (ECJ) in giving prominence to the primacy principle of Community law cannot be overestimated. It is not accidental that the judgments in the van Gend & Loos and Costa/E.N.E.L. cases denote the real origin of Community law, which is why, if for no other reason, the case law of the ECJ deserves to be remembered. But there are also other reasons. In the light of Article IV-438(4) of the Constitutional Treaty:

The case-law of the Court of Justice of the European Communities and of the Court of First Instance on the interpretation and application of the treaties … as well as of the acts and conventions adopted for their application, shall remain, mutatis mutandis, the source of interpretation of Union law and in particular of the comparable provisions of the...