Although not formalised in Treaties, the principle of the primacy of EU law over national law is a cornerstone of the European legal order. It seems to be almost universally accepted as a kind of historical necessity. However, the disputes surrounding the primacy principle are almost as old as the principle itself. The German constitutional court has developed in its case law a doctrine according to which actions outside the scope of competence of the EU institutions would not be binding on Germany. The Federal Constitutional Court has stated that, although a flexible interpretation of Community law is permissible, it must not lead to a situation in which the interpretation produces an effect that is impossible to achieve without amending the Treaties. In another case, the German Federal Court ruled that it would be difficult to continue to speak of Germany as a sovereign state after the transfer of the most elementary competences to the Union.
Soft, non-treaty-based principle
On 14 July 2021, a hearing was held in the Constitutional Court (ref. K-7/20), which is another episode of the Poland-EU conflict. The proceedings concerned the obligation to comply with a provisional measure issued by the Court of Justice of the European Union ordering the suspension of the operation of the Disciplinary Chamber at the Supreme Court of Poland. The Constitutional Tribunal of Poland ruled that the provisions of the EU Treaties, insofar as they require compliance with such a provision, are contrary to the Polish Constitution. In this context, the question of the relationship of the legal system of the Member States with that of the EU comes back like a boomerang. The ruling by the Polish Tribunal seems a good opportunity to recall the history of the dispute over the primacy of EU law.
One of the crucial questions to be asked in this context is which legal order will emerge victorious from the clash of norms. Almost from the outset, the EU institutions have advocated the primacy of EU law over national regulations. However, this issue is not settled in the Treaties, and the void thus created was quickly filled by the CJEU. As early as 1964, it delivered the historic ruling in the Costa v. Enel case, stating that EU law takes precedence over national law. In subsequent years, this principle has been confirmed and strengthened in a series of judgments – some of the most important of them are Internationalle Handelsgesselschaft and Simmenthal.
The primacy of EU law, although generally recognised in principle, has never been formally acknowledged as a binding principle of Treaty rank. For a brief period, it seemed that the question of primacy would be decisively settled. Article I-6 of the draft Treaty establishing a Constitution for Europe clearly stated the supremacy of EU law over national law. However, this international agreement has never entered into force.
The Lisbon Treaty that was negotiated and finally implemented did not include a similar provision, and the principle of primacy was only the subject of one of the political declarations annexed to the final act of the Intergovernmental Conference. It quotes a legal opinion indicating that, although the primacy has never been explicitly regulated, this does not affect the validity of the principle or the CJEU case law from which it derives.
Germany vs. CJEU
Despite not being formalised in the Treaties, the principle of primacy is a cornerstone of the European legal order and seems to be almost universally accepted as a kind of historical necessity. One of the main motives driving the Court of Justice in Luxembourg when it first put forward this concept was the desire to ensure uniformity in the application of EU law in individual EU countries. If it were up to the countries themselves to decide how and to what extent they implement EU law, the effectiveness of the Community in achieving the objectives for which it was originally established would be significantly reduced.
However, this does not mean that this matter is free of any controversy. The disputes surrounding the primacy principle are almost as old as the principle itself. The most formidable opponent to the CJEU has always been the German Federal Constitutional Court, based in Karlsruhe, just over 170 kilometres from Luxembourg. With great finesse, representing a high level of legal craftsmanship, the German constitutional court has been raising some of the most serious questions and doubts for many decades.
The first clash between the two tribunals concerned the protection of human rights. This matter was not regulated in any way in the treaties of the European community, which has become a reason to question the legitimacy of the CJEU.
In its famous ruling, which has gone down in history as Solange I, the German constitutional court pointed out that as long as the Union had not developed its own catalogue of fundamental rights which was precise and provided adequate guarantees, it would give precedence to German constitutional law in the event of a conflict between EU standards and human rights. However narrow, cautious and conditional this reservation was, it represented opposition to Luxembourg’s narrative that EU law should always take precedence over national law.
Limits of sovereignty
The argument from fundamental rights has mainly historical value today. Since Solange I, the Union has not only developed an abundance of case law on this matter but has also created its own Charter of Fundamental Rights, which today has the same force as the Treaties.
Another argument made by the Federal Constitutional Court in relation to EU competence seems to be more relevant. Observing the process of constant expansion of the community’s competences, the German constitutional court has developed in its case law a doctrine according to which ultra vires actions, that is outside the scope of competence of the EU institutions, would not be binding on Germany. The Federal Constitutional Court has stated that, although a flexible interpretation of Community law is permissible, it must not lead to a situation in which the interpretation produces an effect that is impossible to achieve without amending the Treaties. At the same time, in a later judgment, it clarified its position by indicating that Union’s actions should be backed by a strong presumption in favour of being within its competence (intra vires). Therefore, the Federal Constitutional Court stipulated the assessment of actions as ultra vires only for the most blatant and obvious violations of Community law, to borderline cases, strongly emphasising the benefits of respecting the principle of priority in everyday practice.
Finally, the last of the Federal Constitutional Court’s best-known arguments against the principle of primacy concerns the question of constitutional identity, – meaning is the set of the most fundamental institutions, regulations and structures that form the foundations of the system.
The Constitutional Court of Karlsruhe pointed out that there are issues such as, for example, a state monopoly on the use of force, the ability to shape its own criminal law system or the autonomy to make fundamental decisions on public finances, which simply could not be relinquished to the community, even if there were an adequate parliamentary majority willing to do so.
The reason for setting this absolute limit is the ability to preserve its sovereignty. The Federal Constitutional Court stated that if some of the most elementary competences were transferred, one could hardly continue to speak of a sovereign state. It further reasoned that this would be contrary to the German constitution.
Opposing the activism of European judges
The debates on the principle of primacy have so far been characterised by a high degree of mutual respect between the opposing sides and a recognition that the principle of primacy applies in most cases. Only in particularly borderline situations was it allowed to oppose Community law. The second feature of these discussions was their purely theoretical nature. For a very long time, constitutional courts limited themselves to presenting their formidable-looking guns, but they never fired. The situation has changed recently.
The judgment handed down by the Danish Supreme Court in the Ajos case is a telling example. In this ruling, the judges stated that the general principle of EU law derived from CJEU case law cannot take precedence over national law. The case concerned the general prohibition of age discrimination, which, without being based on a treaty provision, was derived by the Luxembourg Court from common constitutional traditions and numerous international instruments. By contrast, the national court argued that the application of this principle would require the same interpretation of Danish law to which it was not entitled.
According to commentators, the Danish Supreme Court presented itself as faithful to the letter of the law, unlike the CJEU driven by a spirit of political activism. However, the ruling has been widely criticised. Indications are that it could significantly hamper the future of relations between Denmark and the Union. Among its causes are the impact of crises at a European level on the image of the Community and the growing irritation caused by the activism of international tribunals.
Probably the most recent example familiar to anyone with even a minimal interest in EU affairs is the German judgment of May 2020, commonly referred to as the PSPP judgement. In this judgment, the Federal Constitutional Court criticised the way in which the CJEU had reviewed the European Central Bank’s decisions regarding its bond purchase programme. The excessive leniency with which the Luxembourg court has treated the ECB’s decisions has given the judges in Karlsruhe cause to refuse to respect the ruling and to make their own assessment of the EU bank’s actions. This is all the more interesting considering that this type of approach to the actions of the European Central Bank is the standard followed by the CJEU. It is supported, among other things, by the obligation to respect the independence of the ECB, which would be at risk if the standard proposed by the Federal Constitutional Court were to be accepted.
One commentator calls the judgment „Methodological Solange” pointing out that we can derive from it the condition that, as long as the CJEU applies the correct method of interpretation, the Federal Constitutional Court must respect the judgements from Luxembourg. However, the question remains: who will judge whether a satisfactory standard of interpretation has been reached? This seems to be an issue of much greater generality or fluidity than the interpretation of the law itself, and thus it opens up a worryingly wide door to disputes. In June this year, the European Commission initiated an infringement procedure against Germany.
A necessary but nuclear option
The above outline was intended to give an overview of the debate on primacy in European Union law. As it can be seen, the story has not ended, and the issue remains unresolved. In the overwhelming majority of cases, the various actors on the European stage – be they politicians or judges – accept its validity, even though it is not enshrined in the Treaties. At the same time, nation states want to retain room for manoeuvre in extreme cases. There is a group of theoreticians who consider this state of affairs to be desirable, arguing that the question of who has the final word – national courts or the CJEU – should remain open. In the view of pluralists, disputes between the Union and Member States should be resolved through an exchange of arguments and dialogue between the parties rather than through an arbitrary decision by a formally authorised body.
Could we then conclude that any objection to primacy is equally good, as long as convincing arguments can be found for it? This is certainly one of the accusations made against pluralists. They are accused of creating the perfect tool for anti-EU populists to use to fight Brussels. Some even call to reject such versions of pluralism and recognise the primacy of the Luxembourg Court. For a number of reasons, however, it is difficult to agree with this view of the role of the CJEU, which should not remain the only super-arbitrator in European affairs and should maintain dialogue with the courts of the Member States.
The foundation of the principle of primacy is the desire to ensure the uniform application of EU law throughout the Community. This rationale seems most worth pursuing. This is the reason why the Union is able to create a globally unique area of free trade, movement of persons and uniform standards that affect even countries outside the EU. At the same time, it is clear that it will sometimes be difficult to create a single regulation that satisfies 27 countries. Therefore, leaving room for dialogue is crucial. Denial of primacy should remain, and as both theory and practice show, does indeed remain, one of the options for national courts.
However, it should be remembered that this is a rather kind of „nuclear option”. Its use should not only be a last resort but should also be constructive. As long as Poland’s EU membership is perceived as beneficial, all state authorities should strive to express their opposition, which is of course sometimes necessary, in such a way as to add value to the legal order of the entire Community and not simply to affirm their own Constitution.
Polish version is available here.
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