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The “Twilight” of European Law?
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Jean-Guy Giraud
Former officer of the European Court of Justice, Former Director of the European Parliament, Former President of UEF-France
A recent judgment of the Constitutional Court of Germany appeared to call into question the principle of the primacy of European law over national law, as well as the primacy of the interpretation of this law by the European Court of Justice (ECJ).[i]
The seriousness of this challenge has led the Commission – guardian of the Treaties – to initiate infringement proceedings for violation of Community law against Germany.
On the other hand, the European Parliament has taken up this matter and handed it over to its Committee on Constitutional Affairs (AFCO). At the request of the latter, an in-depth study[ii] of the question of the respect of the principle of primacy was carried out; the considerations presented below are based on that study.
Beyond the German case, the recent attitude of certain governments or national Supreme Courts[iii] in terms of respect of European law, but also of the principle of primacy, raise concerns which justify the opening of a debate on these questions.
The main issue here is the relationship between European law and the highest standards – ie constitutional – in force in the various Member States.
The principle of the primacy of European law (and case law)
This principle – which did not appear in the very body of the treaties – has been clearly established by the case law of the ECJ since the famous van Gend en Loos (1963) and Costa v. Enel (1964). Since then, it has often been confirmed by the Court and has served as the basis for many judgments.
The draft European Constitution of 2003 was providing a confirmation of this principle by formally inscribing it in the constitutional text in the following form: “The Constitution and the law adopted by the Institutions of the Union (in the exercise of their powers) take precedence on the law of member states “(Art.1-6).
Following the opposition of some governments (notably of the UK), this article was not included in the Treaty of Lisbon – but was the subject of a “Declaration” (No. 17) annexed to the Treaty, which recalls that, according to constant case law of the ECJ, “the treaties and the law adopted by the Union (on the basis of the treaties) take precedence over the law of the Member States (according to the conditions defined by said case law)”[iv].
This declaration is supplemented by an extract from an opinion of the Legal Service of the Council which specifies that “the law born of the Treaty could not be judicially opposed to any internal text whatsoever (…) without calling into question the basis of the Community itself “.
All in all, the fact remains that the intrinsic legal basis of this fundamental principle – whatever its functional logic – is of jurisprudential and not constitutional origin. And that it was “invented” by the very body responsible for ensuring compliance. It is a pity that the opportunity was thus missed to formalize it in the texts on which the Union is founded.
Respect for this principle by States
In general, the primacy of European law is still recognized and applied by states and national courts. Beyond the question of principle, it is very widely accepted that the very functioning of the Union depends on the respect of the treaties and secondary law by the States, and that their uniform interpretation can only be guaranteed by a single and superior judicial source, in this case the ECJ.
However, reluctance or even conflicts can appear when European law seems incompatible (contrary or innovative) with respect to national constitutional law. Some constitutions explicitly recognize the primacy of European law and thereby limit the risk of conflict. For others, a proven incompatibility can only be resolved by a hypothetical modification of the constitutional provisions concerned.
In fact, such cases arise only exceptionally, in particular because the ECJ – aware of the gravity of such possible conflicts – endeavors to take as much account as possible of the “fundamental constitutional principles” of the various states.
The German case
The recent German case is the most worrying, according to the aforementioned study. By its judgment of May 5, 2020, relating to the monetary policy of the European Central Bank, the Court of Karlsruhe ruled – on its own initiative – that certain decisions of the ECB were contrary to the Treaties, but also that the judgment of the ECJ legitimizing these decisions was invalid (for lack of sufficient justifications).
We can clearly see the seriousness of these two assertions contrary to the principle of primacy, and the risk they pose to the very foundations of the entire European system. This Court ruling has shocked political and judicial circles to such an extent that it was possible to speak of “the twilight of the principle of primacy” (see the title of the study: “Primacy twilight?”).
It is for this reason that the Commission had – very exceptionally – to intervene in the legal debate by initiating a so-called “failure to act” procedure against Germany, on the basis of Art. 258 TFEU – a procedure provided for in the event that “a member state fails to fulfill one of its obligations under the treaties.” In this case, the breach is not the act of the German “State” in the meaning of “Government” – but of a jurisdiction of that State. However, in its relations with the Member States, the EU only recognizes the overall responsibility of the latter and not of their political, administrative or judicial bodies.
The fact that the German Constitution recognizes the absolute independence of its judicial organs and in particular of its Supreme Court obviously adds to the complexity of the case.
However, the procedure of Article 258 provides for stages and intermediate deadlines – in particular exchanges of “observations” – which most often allow these cases to be settled before the ECJ has to decide. It remains to be seen how this delicate dispute can be settled without coming to a frontal opposition between the two Courts, and – above all – without the principle of primacy being openly called into question.
Such a precedent would indeed be particularly formidable for the European legal order – especially since certain other national Supreme Courts also seem inclined to challenge this principle.
A risk of contagion?
Indeed, according to the above-mentioned study, respect for the primacy of Community law (in particular in relation to national constitutional rights) is ill-assured in several other states. The cases of Belgium, the Netherlands, and Denmark are cited[v], but the authors consider that the risks are limited due to the rather technical nature of the problems of possible incompatibility, and the availability of the Supreme Courts concerned to maintain a “constructive dialogue” with the ECJ on these issues.
On the other hand, the cases of three new member states are presented as more worrying: they are the Czech Republic, Hungary and Poland. In the Czech case, it would be mainly an internal problem of inter-jurisdictional conflict, while, in the other two, the more direct challenge to the principle of primacy would be linked to the influence of political power on the Supreme Courts. Power currently anxious to protect a competing principle – in this case that of the preservation of national sovereignty vis-à-vis the European institutions and in particular the ECJ, inclined on several occasions to condemn certain decisions of the Governments concerned.
Moreover, in these three cases – as in some others – the situation is complicated by the deficiencies observed in the rule of law, among which the independence of the courts poses a central problem.
Twilight?
In conclusion, it seems a bit exaggerated to speak of “twilight of the primacy of community law” over the entire European landscape, even if a few clouds may appear threatening.
Paradoxically, it was the case of Germany that provoked this legal alert, when this state and its successive governments have always stood out as the most attached to the European system and the most respectful of its legal order. It is likely that, as indicated above, an in-depth dialogue between the national and the European protagonists will make it possible to find a solution that avoids an open and frontal conflict between the political and judicial bodies of the two parties - as was indeed the case in several occasions in the recent past.
The fact remains that the principle of primacy can, by its nature, be confronted with other principles such as those of sovereignty and the independence of the judiciary. On the other hand, the accelerated extension of the Union's intervention in new areas such as the climate, health, fiscal policy, etc. raises new risks of conflicts of jurisdiction.
But it is perhaps “societal issues” – viewed through the lens of the protection of individual rights – which may presently create new difficulties. The recent media-led and political effervescence about the non-discrimination of people on the grounds of the sexual orientations of various minorities (LGBTIQ) is undoubtedly the best example of this. This area has hitherto been very far from the scope of the Union, whose powers in this area remain relatively limited. Having, however, decided to get involved – in particular under the pressure from Parliament –, the Institutions will have to face a resolute opposition from certain Member States[vi]. Questions of European competence and
Sovereignty (and therefore primacy) may arise with particular acuity due to the sensitivity of the subject – and degenerate into conflicts of a political nature.
The logic of the system would tell that – at least on the question of the competences of the Union - the ECJ should be brought to clarify the debate. In this case – as in many others recently – the “hot potato” would therefore be sent back to Luxembourg[vii], where the ECJ will have to show a lot of legal diplomacy (inventiveness?) in trying to appease and reconcile, while fully and objectively respecting the law.
According to the dictionary, “twilight is the diffuse light that precedes sunrise or after sunset”. After the debates of the Constitutional Convention in Philadelphia (1787), Benjamin Franklin wondered whether the premonitory twilight painting that adorned the Hall room was that of a sunrise or a sunset. History has ruled in favor of the first hypothesis.
[i] This is the judgment of May 5, 2020 in the so-called PPPE case calling into question the legality of the measures taken in 2015 by the ECB as part of its new monetary policy of indirect purchases of government securities.
[ii] https://www.europarl.europa.eu/RegData/etudes/STUD/2021/692276/IPOL_STU(2021)692276_EN.pdf
[iii] In particular Poland, Hungary, Czech Republic, …
[iv] In the same way, the Treaty of Lisbon deleted the article of the draft Constitution relating to the symbols of the Union (Art. 1-8),which was included in a “Declaration” signed by a majority of member states.
[v] In the case of France, the authors note that - despite serious disputes that have arisen in the past - the recent case law of the Constitutional Council, the Council of State and the Court of Cassation no longer raises serious problems in terms of primacy.
[vi] See https://www.lesamisdutraitedelisbonne.com/post/la-hongrie-l-ue-et-le-droit
