[FR] The primacy of EU law, a cardinal principle in turmoil

In her annual State of the Union address on 15 September, European Commission President Ursula von der Leyen did not develop a more operational plan for defending the rule of law, as might have been hoped. Nevertheless, she explicitly reiterated that the fundamental values of the European Union, which the Commission is determined to defend, are guaranteed by its legal order and that “the rulings of the Court of Justice of the European Union ensure that they prevail. These rulings are binding. And we ensure that they are enforced. In every country of our Union. ”

Such a clarification should have been obvious in a legal system in which the question of the primacy of European Union law has, in principle, been definitively settled since 1964. Nevertheless, challenging this hierarchy may be becoming a bad habit of the constitutional courts of the Member States, to which the European institutions are struggling to respond.

In the beginning was the principle of primacy

The principle of primacy does not date back to the first treaties, but to a 1964 ruling by the Court of Justice in Costa v. E.N.E.L., in which it held for the first time that “unlike ordinary international treaties, the EEC Treaty has established its own legal order, integrated into the legal systems of the Member States when the Treaty came into force and binding on their courts”, and concluded that this integration into the law of each Member State of provisions originating from Community sources meant that it was impossible for Member States to give precedence to a national measure over a legal order that they had accepted on the basis of reciprocity.

Like the principle of the direct effect of Community law, established by the Van Gend en Loos judgment in 1963, the principle of primacy, which guarantees the superiority of European law over national laws, is a fundamental principle of European Union law.

Without these two principles, the European legal order could not have developed and strengthened – it is difficult to imagine how a supranational legal order could have been imposed on Member States if it had been merely optional. It is highly likely that Member States would have very rarely applied European law that was not binding, especially when it conflicted with their national rules, as is sometimes the case with traditional international law.

Following these landmark rulings, the Court of Justice has developed a whole body of case law that has made it possible to affirm – and refine – the contours of the principle of primacy. Whether ruling on primary law (treaties) or secondary law (i.e. legal instruments based on treaties, such as regulations, directives, decisions and agreements), the Court of Justice has consistently reiterated to Member States and their highest courts that EU law takes precedence over national law, whatever the consequences.

In principle, therefore, there was no reason to believe that Member States might consider that recognition of the primacy of EU law over their national law could be left to their discretion. But that was without counting on the wind of rebellion that began to blow within some of the Member States’ constitutional courts.

Challenging the principle of primacy: a dangerous trend among constitutional courts?

While EU law is generally accorded the primacy it deserves over national provisions of ordinary law, even those enacted subsequently, the situation is often very different when it comes to constitutional rules, contrary to the Court’s case law on the matter. While this reluctance on the part of Member States to consider their internal constitutions as just another rule of law subject to the primacy of European Union law is not new, it does seem to have become more recurrent.

In France, for example, a recent ruling by the Council of State on the application of the provisions of the General Data Protection Regulation highlights the still evident tendency of administrative judges to consider that European Union law takes precedence over all domestic law, except for those provisions derived from the Constitution. In a decision dated 21 April 2021, the High Administrative Court thus reignited the controversy, considering that “in the event that the application of a European directive or regulation, as interpreted by the Court of Justice of the European Union, would have the effect of depriving one of these constitutional requirements of effective guarantees, which would not benefit from under EU law, equivalent protection‘, the administrative judge should set it aside ’to the extent strictly required by the Constitution”.

Across the Rhine, in a much more resounding manner, the German Constitutional Court issued a ruling on 5 May 2020 criticising the lack of control by the Court of Justice of the European Union over the actions of the European Central Bank, which, according to the Karlsruhe Court, exceeded its mandate by adopting a programme of public securities purchases on the markets in 2015, thereby assuming the right to judge the decisions taken by the European institutions concerned.

Finally, this new wave of resistance reached its peak with the Polish government’s request to its Constitutional Tribunal, the outcome of which is still pending. On 15 July, the Court of Justice ruled that the judicial reforms initiated by the Polish government were contrary to European law, pointing out that European law must take precedence over national legislation. This decision was contested by Prime Minister Mateusz Morawiecki, who, believing that the judges in Luxembourg had abused their role, considered it legitimate to entrust the Constitutional Tribunal of his Member State with the task of ruling on the question of the primacy of European law over Polish legislation. This position is part of the Polish government’s systematic challenge to the jurisdiction of the European Court of Justice, even in relation to the Romanian judicial reforms referred to in the Court of Justice’s ruling of 18 May.

These are all worrying cases which, taken together, pose a threat to the legal harmonisation achieved by the Court of Justice over the last 60 years, whose unifying role has gradually enabled European citizens to enjoy the same rights throughout the Union.

The long-awaited reaction of the European institutions

Faced with such an outcry, all eyes are naturally turning to the European institutions, whose firm response is long overdue.

On the one hand, the Court of Justice of the European Union has opted for coordination and education. Responding to the invitation of the Latvian Constitutional Court to a conference in Riga on 2 and 3 September, the Court in Luxembourg was able to exchange views with the constitutional courts of the Member States, so that each party could present its work with a view to promoting mutual understanding of the approaches. This is a sensible solution, especially given the European judge’s commitment to dialogue between judges, established within the framework of the preliminary ruling mechanism, through which the judges in Luxembourg have done so much to consolidate European integration.

On the other hand, the relative nature of the European Commission’s offensive stance towards Poland, among others, is surprising. As the “guardian” of the Treaties, it is its responsibility to ensure the proper application of EU law within the Member States. It is this essential responsibility that justifies infringement proceedings, under which the Commission can bring a Member State that has failed to comply with European law within its borders before the courts.

While the European Commission’s position on the rule of law may legitimately be questioned, there is one thing on which it will not compromise: the primacy of European rules over national rules. It has therefore opened infringement proceedings against Germany for calling into question the primacy of European Union law through a decision by its Constitutional Court.

Furthermore, with regard to Poland in particular, the situation is all the more complex as the Polish government seems willing to engage in a real power struggle with the European executive. The referral to the Constitutional Tribunal following the Court of Justice’s ruling is just one of many demonstrations of the Polish authorities’ defiance towards the European institutions. Nevertheless, the Commission is not standing idly by and has shown that it has not said its last word. For example, it has refused to approve the national recovery plan presented by Poland – which is necessary to unlock the Recovery Fund in the country – and it is easy to imagine that Warsaw’s challenge to the primacy of EU law is not unrelated to this. It is understandable that the Commission seems to have opted for a firm but diplomatic stance. Nevertheless, one might wonder whether, faced with such a clear challenge to the primacy of EU law, it should not show more teeth if it wants to see the principle of primacy continue to be applied within the EU.

However, in a Union in which the Member States have sovereignly decided to participate and can also decide to withdraw, it must be noted that there are no more coercive means than the legal mechanisms established by the Treaties. Unlike Article 50 of the Treaty on European Union, which allows a Member State to leave the European Union, there is no legal means of excluding a State that does not comply with the provisions of the treaties to which it has itself agreed to adhere. Maintaining or increasing political and legal pressure on the Polish government might be an attractive idea, were it not for the risk that Poland might ultimately decide to leave the Union. Such an outcome, in a post-Brexit context, would be a terrible blow to the European project.

As a sui generis organisation, the European Union is often said to grow stronger through crises, finding innovative solutions to respond to unprecedented situations. This is how the Court of Justice managed to establish the principle of primacy, which proved essential to the achievement of European integration. Let us hope that the European institutions will once again rise to the challenge posed by the uncompromising attitude of certain Member States and that they will demonstrate the political and legal innovation that will enable the Union to emerge stronger.