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National Constitutional Rights and European Law in the Early Decades of European Integration
Scholarship on the early development of the supremacy of European law has has frequently been dominated by discussion of the possibility that a directly effective European law obligation would not be applied in the national legal order because it violated a national constitutional law fundamental right, as discussed, for example, in the Frontini and Solange decisions of the Italian and German Constitutional Courts. This paper argues that such a possibility should instead be seen as of limited practical relevance. This claim is supported by early scholarship on the application of European law in the national legal orders and by the practice of constitutional review of laws giving execution to treaty obligations in Denmark, Ireland, Italy and Germany, including the German Constitutional Court's 1955 decision on the Saar Statute. Two conclusions are drawn from this discussion. First, scholarship examining the development of European law supremacy in relation to national constitutional law fundamental rights in particular should be situated within the context of the flexible and politically sensitive approach to adjudication demonstrated by Europe's national courts in their decisions on potential conflicts between constitutional rights and international legal obligations. Second, scholarship offering a general explanation of the development of the supremacy of European law should not focus on the national constitutional rights question to the exclusion of a thorough examination of national law solutions to European law's lex posterior problem.