[FR] Primacy of European law

This introduction to the attached note is the result of an exchange between Pervenche Berès, Jean-Louis Bourlanges, Alain Lamassoure, Pascal Lamy, Sébastien Maillard and Christine Verger, members of the European Parliament Policy Observatory of the Jacques Delors Institute.

The Polish Constitutional Tribunal’s challenge to the primacy of European law has received worrying support from several French politicians. With the Hungarian Constitutional Court potentially following in Poland’s footsteps, it is important to recall the legal basis for this primacy and to assess the political implications of the debate it has raised.

In his legal explanation below, Professor Ziller, consulted by our Institute, traces the origins of this primacy. It stems directly from the obligation of States to respect the treaties they have concluded. This long-standing principle is the foundation of all international law, according to the old principle set out in the adage ‘pacta sunt servanda’ – all treaties must be honoured in full. This principle is enshrined in all European constitutions, as is the case in Article 55 of our constitution in France. The application of this principle to Community law has been established since 1964 by consistent case law of the Court of Justice of the EU.

This primacy applies to European treaties as well as to the European Charter of Fundamental Rights and to all Union law, including judgments of the Court. Primacy should not, however, be confused with supremacy, which is specific to a federal system. European law, created on the basis of treaties and applicable in each country, takes precedence over national laws. But this primacy does not impede the sovereignty of states which, unlike the American states at the time of Lincoln, for example, have the right to denounce European treaties and secede from the European Union (Brexit). In the event of a dispute between a European standard and a national constitutional provision, the conflict can only be resolved by revising the constitutional standard or possibly amending the treaties or European case law.

From day one, the issue has been raised and settled in advance before each new European treaty: in the event of a contradiction between the draft treaty and the national constitution, the latter must be amended. France did so in 1992 for the transfer of monetary competence to the Union. This sound practice considerably limits the subsequent risks of conflict between European law and national constitutions. If, despite this, a dispute arises at a later date, dialogue is open: the supreme courts can exchange views with each other and with governments. In the meantime, European law prevails, until a possible revision of the treaties or a change in European case law on the dispute.

European primacy does not prevent a State from invoking its ‘constitutional identity’ either. However, it is the role of the European Court of Justice to assess the enforceability of this identity in relation to the principles and rules of the European treaties, in dialogue with the national courts. If each national constitutional court considered itself the ultimate judge of this identity, we would find ourselves in a Europe à la carte, which France has always fought against.

For citizens, the best comparison is that of a civil law contract. If, as a tenant, I disagree with my landlord, it is up to a mediator or judge, chosen in advance, to settle the dispute. The treaty is the contract of the European family, and the judge chosen unanimously by all members is the Court of Justice of the European Union.

Finally, this rule of law fits perfectly with the principle of subsidiarity, whereby the EU only intervenes when an objective cannot be sufficiently achieved by Member States but can be better achieved at Union level. The Court of Justice in Luxembourg does not hesitate to sanction European texts that disregard this principle.

These fundamental legal reminders help to gauge the stakes of the political debate that disregards these principles. In the run-up to the French presidential election, several candidates are proposing a “constitutional shield” or legal moratorium to allow France to escape EU decisions they dislike, inventing a national primacy over European law, which is portrayed as both foreign and outside the principles of international law.

As a founding member and recognised driving force behind all European progress, France would lose credibility if it were to question its signature on the European treaties, all of which have been ratified by its parliament or its people. This political debate is therefore playing with fire in terms of our reputation in Europe and around the world, including with regard to the financial markets, to which our level of public debt makes us so vulnerable. The eight presidents who have succeeded one another since the beginning of the Fifth Republic may have had different visions of Europe, but all of them wanted France to be exemplary.

Respecting European primacy in no way infringes on sovereignty. The EU is the result of the will of its contracting parties. In essence, it does not have ‘competence over its own competence’, according to the original definition of sovereignty inspired by Jean Bodin and adopted by German jurists. European institutions prefer to invoke ‘strategic autonomy’ or ‘capacity to act’. Behind these variously successful formulas, the idea is to use the regulatory and financial levers available to the 27 Member States and to create new instruments that will give the EU the means to assert itself as a power. The primacy of European law and, as a corollary, the authority of the Court of Justice of the European Union, are guarantees of trust between the 27 Member States. They cement their unity, which can be asserted to the rest of the world. This primacy ensures the consistency that is essential to the functioning of the internal market, which is the primary strength of Europeans in their relations with other powers.

We must recognise that if the primacy of European law were not recognised, it would simply collapse, with each of the parties involved feeling entitled to interpret it as they saw fit, or even to disregard it altogether. Let us therefore put an end to all unnecessary quarrels over the primacy of European law. Respecting this primacy simply means allowing the European Union to exist.