The demands of direct effect and primacy are mostly justified on their functional nature: they are required to uniformly apply EU law across member states. This is what has caused contestation caused by domestic resistance.
It should be noted that in the vast majority of cases, direct effect and primacy are uncontroversial and work as the CJEU intended.
Review by National Constitutional Courts:
Due to the role of national courts, enforcement of EU law is, at least in theory, limited by national constitutional limits.
Generally, member states have generally accepted the authority of EU law, deriving from the principle of conferral. Some member states, however, state that the authority stems from their own domestic constitutional arrangements.
Kompetenz-Kompetenz: deciding who has the competence to decide who has the power to police the scope of authority of EU law.
Fundamental Rights Review:
Where EU law violates the domestic standards of fundamental rights found in national law, national courts will prefer protecting these rights over enforcing EU law. Therefore, primacy remains conditional on the EU respecting those fundamental rights.
In Solange I and II, the German constitutional court held that as long as EU law guarantees generally equivalent standards of fundamental rights to that of the German constitution, the German Constitutional Courts will not review EU law for compatibility. Supremacy is respected so long as it protects domestic fundamental rights.
Due to the EU’s Charter of Fundamental Rights, this issue doesn’t often occur in practice.
Current Problematic Cases:
European arrest warrant.
Case C-399/11 Melloni
Case C-362/14 Schrems – CJEU allows domestic compatibility check.
RtbF II (Right to be forgotten online) - German Constitutional Court held that it will check whether EU law is compatible with both its own fundamental rights and the EU’s fundamental rights.
The fact that national courts review EU law in these cases asserts the protection of fundamental rights as a legal tradition central to European integration.
Ultra Vires Review:
This review works on the principle that national constitutional courts are the final arbiter of the scope of the principle of primacy.
National constitutional courts accepts that the EU has primacy in areas of its competence, but that EU law is only valid when it acts within the scope of the prerogatives granted to it. Where it does not, national courts will intervene.
In HONEYWELL, the German CC ruled that it will only review when the EU ‘manifestly exceeds’ in a ‘structurally significant manner’.
In OMT, the German CC held that the ECB is acting ultra vires and is in violation of Germany’s constitutional identity if it acts as a buyer of last resort (goes against the treaties).
After referral to the CJEU, they rule that it is within the scope of ECB competencies in pursuing its monetary policy. The German CC, reaffirming that they remain in control, grudgingly allow it.
In WEISS / PSPP, an ultra vires challenge was brought against a ECB programme (Public Sector Purchase Programme / PSPP). The issue was forwarded to the CJEU, who ruled that it was within the scope of EU competencies, but the German CC rejected this.
Review by the CJEU ‘does not satisfy the requirements of a comprehensible review as to whether the ESCB and the ECB observe the limits of their monetary policy mandate’ (123). The CJEU failed ‘to give consideration to the importance and scope of the principle of proportionality’, its ruling being ‘no longer tenable from a methodological perspective given that it completely disregards the actual effects of the PSPP’.
The CJEU’s findings ‘manifestly exceed the judicial mandate conferred upon the CJEU in Art. 19(1)’ leading to ‘a structurally significant shift in the order of competences to the detriment of the Member States’ (154). The ‘CJEU thus acted ultra vires, which is why, in that respect, its Judgment has no binding force in Germany’.
By pursuing the objective of monetary policy ‘unconditionally while ignoring the economic policy effects resulting from the programme, the ECB manifestly disregards the principle of proportionality’ (165). The ‘violation of the principle of proportionality is structurally significant so that the actions of the ECB constitute an ultra vires act’.
Note: PSPP was not invalidated, but the ECB and EU needed to offer a new assessment of proportionality to the German CC.
Problematic Implications (EG: Poland):
The Weiss judgement sends a clear message to other national constitutional courts: if the German Court can undermine primacy, others can do the same.
This undermines the enforcement of EU law.
Recent judicial reforms in Poland have affected judicial independence.
The Polish constitutional court structurally attacked the EU’s legal order by ruling that the EU has entered a ‘new stage’ which affects Poland’s sovereignty and has no competence on national judicial structures (judicial independence not part of the treaties when they joined). Therefore, national courts in Poland must disregard the CJEU ruling as it is unconstitutional.
Protecting (National) Constitutional Identity:
Certain policy questions are so central to the self-determination of a people (and their democracy) that these should be left to member states. The EU’s functional demands of primacy would lead to this identity being sacrificed.
This is recognised in EU treaty.
TEU Article 4(2): ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government.’
The German CC has ruled that this regards questions of criminal law, fiscal law, education, religious law, foreign and social policy. [1]
There is no substantive limit as to what could be considered a ‘national identity’ and the idea is very broad. While in theory this is a big problem, this is not really in practice.
On procedural guarantees: Italian CC in Tarrico
On political salience: Decision 22/2016 on refugee allocation
On constitutional structure: C-208/09, Sayn-Wittgenstein
On free movement: C-637/16, Coman
Possible Methods of Reconciliation:
(Orthodox Constitutional) Pluralism
Both institutions (national courts and CJEU) are correct about the source of their authority within the context of the constitutional systems they operate within: the CJEU from the treaties and national courts from their own national constitutions.
While this doesn’t solve the problem of who ‘wins’, this isn’t a problem for pluralists because the relationship is heterarchical. The relationships between them is not a hierarchy, and judicial dialogue should prevent problems.
Viewpoint arguably ‘conceptually and normatively misguided and practically meaningless’. [2]
Formalism (Anti-Pluralist) [3]
Based on absolute primacy being embraced due to functional objectives and this being the only way that it can work.
This narrative is central to the CJEU and Commission’s response to the German Constitutional Court and Polish Tribunal.
Radical Pluralism and the End of Law [5]
The conflict between different legal orders indicates the outer limit of what the law can do. Where legal recourse is ineffective, other (political) means become necessary.
Judicial Dialogue vs Political Solutions – the issue is not between the courts; political issues should be solved by political institutions.
It is important to note that this account doesn’t say law doesn’t matter. Law plays an important function in highlighting the points of conflict between legal systems. It highlights the need for political answers to structural indeterminacies in the EU’s constitutional structure.
Solange Reborn [6]
Direct effect and supremacy should be respected, unless the CJEU does not adequately supervise EU institutions and safeguard the limits of the treaties.
Where the EU and its institutions do not sufficiently protect commitments to accountability, freedom, dignity and democracy, national constitutional courts would be justified in intervening.
Centrally based on the idea that the EU should be functional but also ethical.
This is neither a defence of or resistance to primacy – it offers a normative yardstick / olive branch of acceptance of the doctrine, conditional on thick ethical commitments being protected.
Wrong Question / Problem [8]
When the demands of the EU legal order are followed by national courts, primacy works. The real problem is that we don’t know why it works – the CJEU’s continued reliance on the functional justifications for primacy are not convincing enough.
Under this view, the CJEU needs to give better exposition of its ethical (rather than functional) commitments to integration.
Resources:
References:
[1] Bundesverfassungsgericht, BVerfG, 2 BvE 2/08 [2] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 123 [3] Keleman, Fabbrini et al, ‘National Courts cannot override CJEU Judgments’ (Verfassungsblog, 26 May 2020) < https://verfassungsblog.de/national-courts-cannot-override-cjeu-judgments/> accessed 26 Nov 2022 [4] Keleman and Pech, ‘The Uses and Abuses of Constitutional Pluralism: Undermining the Rule of Law in the Name of Constitutional Identity in Hungary and Poland’ (2019) CYELS 59 [5] Dani, Mendes et al, ‘At the end of law’ (Verfassungsblog, 15 May 2020) < https://verfassungsblog.de/at-the-end-of-the-law/> accessed 25 May 2022 [6] Bobic and Dawson, ‘What did the German Constitutional Court get right in the ECB decision? (Hertie School, 12 May 2020) <https://www.hertie-school.org/en/news/detail/content/what-did-the-german-constitutional-court-get-right-in-ecb-decision> accessed 25 Nov 2022 [7] Dawson and De Witte, EU Law and Governance (Cambridge University Press 2022) 124 [8] Perju, ‘Against Bidimensional Supremacy in EU Constitutionalism’ (2020) GLJ 1007
Cases Mentioned:
Re Wünsche Handelsgesellschaft BVerfGE 73, 339 (‘Solange I and II’)
Case T-209/01 Honeywell International, Inc.
BVerfGE 134, 366 Outright Monetary Transactions (OTM)
Case C-493/17 Weiss
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