2EU - National Law & EU Law

2EU – EU Law & National Law

1)THE COURT OF JUSTICE OF THE EU & NATIONAL LAW (‘SUPREMACY’)

CASES RE THE EUROPEAN COURT (CJEU) PERSPECTIVE

Costa v ENEL [1964]

TAKEAWAY: in response to a submission that national law should prevail in a conflict with an EU legal norm – Court of Justice established the principle of primacy / supremacy of EU law w 4 reasons:

1)     The Contractarian argument (Craig & de Burca)

-       Echoing Van Gend en Loos, the EEC Treaty had “created its own legal system” & Union entry “carries with it a permanent limitation of [the Member States’] sovereign rights”

2)     The Functional Argument (Craig & de Burca)

-       Community law cannot vary between states in deference to domestic laws, without jeopardising attaining the objectives of the Treaty set out in Article 5(2)

3)     The Egalitarian Argument

-       CRAIG & DE BURCA: a lack of primacy would allow a Member State to apply EU law in a way that is different from another Member State, potentially resulting in a ‘free-riding’ problem

4)     Textual Argument

-       Art 288 TFEU : Regulations “shall be binding” in all Member States – provision would be meaningless if a state could nullify it with provisions prevailing over Community law.”

-       CRAIG & DE BURCA: this reasoning is weak - in focusing excessively on one type of instrument, and because direct applicability is distinct from the question of which norm is to be prioritised in the event of a clash

Internaonale Handelsgesellscha [1970]

TAKEAWAY: National standards (even with constitutional status) cannot review EU law validity

DE WITTE: EU norms taking precedence over national constitutions = ‘ultimate’ primacy

o   Internationale confirms (at least insofar as the CJEU is concerned) that the EU legal order is ‘autonomous’ from the Member States’ legal orders

FACTS: conflict between national fundamental rights (as protected by German Constitution) & an EU measure about deposit structure

ECHOES COSTA V ENEL: letting national law prevail would affect the uniformity/efficacy of Community law, deprive it of its character & call it into Q

INTERESTING TAKEAWAY ON HIERARCHY - EU Law cannot be reviewed on the basis of German law, & Italian law cannot be reviewed on the basis of Spanish law; we would never suggest a legal hierarchy between Italy and Spain, so why argue that there’s hierarchy between the EU & its Member States?

Simmenthal [1978]

TAKEAWAY: Court established that the national courts’ duty to disapply conflicting national law where there is a clash with an EU legal norm

-       Duty is irrespective of when national measure came into play

COURT: the “principle of the precedence of Community law” renders “automatically inapplicable any conflicting provision of current national law” and preclude[s] the valid adoption of new national legislative measures incompatible with Community provisions

-       Anything else = would deny the obligations undertaken by Member States pursuant to the Treaty and thus imperil Community foundations

RIGHTS: Simmenthal invokes effectiveness by talking specifically about protecting rights effectivelty

(IMPORTANT as not all effectiveness arguments are equally compelling)

“every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule.”

Foglia v Novello 1 [1980]

TAKEAWAY: ECJ declined to give a ruling – Art 177 only applied where a ruling was needed to settle genuine disputes (HERE = no real dispute re the illegality of the tax)

FACTS:

·       Foglias sent Italian wine to France by Mrs Novello’s request, used Danzas for transport

·       Danzas charged French customs when the goods crossed the frontier

-       Novello refused to reimburse Foglia - contract stipulated that she shouldn’t be liable for duties claimed contrary to the free movements of goods provisions

o   IMPORTANT: the Italian court had already referred for a preliminary ruling whether the imposition of the tax Danza paid was in accordance with the provisions of the EEC Treaty or not

HELD: The CJ duty under Art 117 EEC Treaty is to supply community courts with interpretation of Community law to settle GENUINE disputes

1)     The 2 individuals agree on the result to be attained - the French tax created a serious discrimination against Italian wines incompatible with Community law

2)     Danzas also failed to challenge the tax under French law despite having an interest. Allowing references in such circumstances would undermine the system of legal remedies

Case 244/80 Foglia v Novello 2 [1981] 

Case 283/81 CILFIT [1982] 

TAKEAWAY: confirmed the existence of the Acte Clair doctrine - permits courts of last instance to refrain from requesting a preliminary ruling under Art 267(3) TFEU from the CJEU

= when the correct application of EU law is so obvious (to courts of other member states & CJEU too) that there is no scope for reasonable doubt

The answer must be clear taking into account:

1)     The different language versions of the Treaties/Legislation

2)     That legal concepts have different meanings in different states

3)     That legislation must be looked at in light of the objectives & evolution of community law

NB – tho court is saying that last instance can forgo Art 234 – THIS IS COUNTERED WITH HIGH-BAR

USEFULNESS: doctrine plays an important role in avoiding the prolongation of litigation that a preliminary reference may cause

FACTS:

·       Plaintiff urged the Italian court NOT To refer a matter to ECJ bc answer sooo obvious

·       Italian court said this itself was a question of EC law

ECJ: tho courts of final instance were obliged to refer a question of EC law to ECJ, interpretations themselves have authority (i.e. if the question has already been answered then there is no need to ask exactly the same question again - following Da Costa)

Meilicke [1992] 

FACTS: Complex dispute re whether shareholder entitled to info on the business from the directors

HELD: CJEU declined refused to answer German Court’s answer as:

1)     Problem hypothetical

2)     Facts & legal context not sufficiently established

(national court must provide sufficient factual/legal details to let CJEU give a useful answer)

3)     CJEU would’ve been exceeding its function by ruling without a real factual dispute

(follows earlier cases like Foglia v Novello)

Joined Cases Melki, Abdeli [2010]

TAKEAWAY: National laws requiring courts to refer constitutionality matters to a constitutional court are compatible with EU law if certain conditions met

SO is this a case of accommodation and dialogue between national courts and the CJEU??

LIKE FOTO FROST: Court roots stance in the need to guarantee EU law uniformity

FACTS: Claims challenging French Constitution must be referred to Constitutional Council

·       On case re the constitutionality of border checks – Court of Cassation asked ECJ whether Art 267 prohibits legislation requiring courts to submit matters of constitutionality to the Constitutional Council

ECJ: France CAN have this Constitutional Council step (which makes also a temporary delay)

1)    IF the priority nature of the procedure doesn’t prevent other national courts from making preliminary references to the ECJ

2)    AND it’s not okay to have a rule that forces judges to wait until a national constitutional review is finished before they can ignore a national law that conflicts with EU law

BUT – ECJ clarified that Art 267 does not preclude interlocutory procedures which prevent the national court from immediately disapplying a national law as long as

1.     the court can adopt any measures to protect ECU rights

2.     the court can disapply national law at the end of the interlocutory procedure if the court holds it to be contrary to EU law

Stefano Melloni 2013

TAKEAWAY: the Melloni court reiterates Internationale –EU law validity cannot be challenged on the basis of a national standard, even if fundamental right is invoked

FACTS:

·       Melloni argued that extradition from Spain to Italy would clash with his charter (constitutional doc) rights to fair trial

·       Spain had a policy which gave individual greater protection than the EU’s provisions via the European arrest warrant

·       National Court: Art 53 of the Charter should authorise a member state to apply the standard of protection of fundamental rights guaranteed by its constitution when that standard is higher than that from Charter (ie priority over EU law)

ON HIERARCHY: Melloni makes it hard to negate the existence of a hierarchical structure of norms

HELD: Court strongly interprets Art 53 of charter in accordance with primacy principle (Costa v ENEL)

1)     National Court’s interpretation would undermine principle of primacy of EU law

2)     By doubting the uniformity of the standard of protection of fundamental rights, would undermine the principles of mutual trust and recognition

3)     Under Art 53 – where EU laws call for national implementing measures, national courts are free to apply national standards, if EU primacy not compromised

Ognyanov 2016

TAKEAWAY: judges can’t be forced to step aside from performing their EU duty —must prioritise EU law over conflicting national rules

FACTS: National Bulgarian provision required national judges to disqualify themselves if they made statements on the factual & legal context of cases before them

o   BUT – those statements are required when making a reference to the CJEU under Article 267 TFEU

HELD:

1)     Clarifies: a judgement where the Court gives a preliminary ruling is binding on the national court

2)     Restates Simmenthal-duty to disapply national law conflicting with a directly effective EU Act

-       THUS – the national court is ‘obliged to ensure that Article 267 TFEU is given full effect, and if necessary to disapply, of its own motion”

Achmea, 2018

TAKEAWAY: significant bc of the Court’s assertion of the ‘autonomy of the EU legal system’

-       No international agreement can alter the division of power set out in the Treaties or undermine the EU’s legal independence

COURT EMPHASISED

1)EU law is distinct from both national and international law, as it:

-       Derives from an independent source (the Treaties),

-       Has primacy over national laws, and

-       Possesses direct effect on Member States and their citizens.

2)EU is built on shared values & mutual trust – meaning Member States must, under Art 4(3) TEU (sincere cooperation) ensure that EU law is respected

3)EU judicial system – particularly Article 267 TFEU preliminary reference procedure – is essential to maintaining uniform interpretation of EU law

Mangold [2005]

TAKEAWAY: Direct effect workaround: The CJEU avoided the problem of no horizontal direct effect by grounding the ruling in a general principle of EU law rather than the Directive itself

-       It was controversial because it arguably blurred the line between Directives (which are not directly horizontally effective) and directly effective EU law principles

FACTS:

·       Mangold was employed under a fixed term contract by Helm, a German lawyer (NOTE: this is a horizontal situation – between private individuals NOT the individual & the state)

·       Under German law (Employment Promotion Act 1996) fixed term contracts were unlawful unless they could be objectively justified

-       Protection not apply to workers over 52

·       2 EU DIRECTIVES IN PLAY:

1.     1999/70 - gave effect to a framework agreement concerning limits on the use of fixed term contracts

2.     2000/78 - laid down a general framework for combatting age discrimination

o   BUT - Article 6(1) of the Directive allows for different treatment on the grounds of age if objectively justified in the service of legitimate policy/labour market objectives

AT THE TIME OF THIS CASE: Directive 2000/78 had been adopted but its transposition period had not yet expired (Germany still had time to implement it)

The German law in question arguably violated the principle of non-discrimination by age, but Mangold couldn’t directly rely on Directive 2000/78 because:

1.     He had been discriminated against contrary to the Directive, but Directives couldn’t have horizontal direct effect 

2.     The transposition for the period of the second directive hadn’t passed yet.

HELD: CJEU ignored these 2 problems & HELD Mangold could rely on the Directives 

IATA [2006]

TAKEAWAY: court corrected the meaning of Art 267 TFEU - if the national court considers one or more of the arguments for invalidity are well founded, court must halt proceedings and make a reference to the CJEU (regardless of whether is a last instance court)

2 – NATIONAL (CONSTITUTIONAL) COURTS’ PERSPECTIVE

Many member states root their stance in conditional primacy

= the idea that EU law takes precedence over a conflicting national law not due to EU law’s special nature, but bc its permitted by the national constitution

On THIS LOGIC - national constitutional courts may still examine the compatibility of EU law with fundamental principles of the national constitution (eg: fundamental rights, democracy, national identity)

o   Such approach is exemplified by the German Federal Constitutional Court caselaw

GERMANY:

THE GERMAN FEDERAL CONSTITUTIONAL COURT (FCC/BVerfG) PERSPECTIVE

Tho the German Federal Constitutional Court has been keen to outline limits to the reach of EU primacy, the BVerfG has demonstrated a degree of openness & tolerance = all bark & no bite???

Brunner [1994] (on ratification of the Maastricht Treaty)

‘NO BUT WE ARE IMPORTANT AND ONE OF THE BAD BITCH ‘MASTERS OF THE TREATIES’ ‘

TAKEAWAY: the FCC maintained that it has ultimate jurisdiction to review EU law compatibility with fundamental rights & to determine whether the EU has acted ultra vires

FACTS: Plaintiff argued that accession to the Maastricht (EU) Treaty would be a violation of Article 38 of the German constitution - prohibits a general surrender of the powers of the legislature

CRAIG & DE BURCA: BVerfG recognised the compatibility of the ratification of the Maastricht treaty with the German Constitution, but went on to establish a ‘competence-based limit’ to EU primacy

-       FCC: adamant that “Germany is one of the ‘Masters of the Treaties’ which have established their adherence ‘for an unlimited period, but could revoke that adherence by a contrary act

Re the Lisbon Treaty, BVerfG, 2009, on the German ratification on of the Lisbon Treaty)

TAKEAWAY: FCC reaffirmed the (theoretical) prospect of ultra vires review, where Community institutions exceed competence

TAKEAWAY: FCC expressly invokes the notion of conditional primacy:

-       the primacy of Union law only applies by virtue of the constitutional empowerment

FACTS: Lisbon Treaty introduced a guarantee of respect for national identities

-       From this the FCC drew on the idea of an “inviolable core content of the constitutional identity of the Basic Law” in its judgement

Honeywell [2011] (on the Court of Justice’s interpretative methodology)

TAKEAWAY: while the FCC reiterates the role of ‘constitutional empowerment’ re primacy of EU law IT THEN SEEMINGLY presents a diluted version of its sentiments in Brunner

-       RESULT: looks like the FCC has reneged from that robust challenge to the primacy of EU law

NLB thinks that the court takes an EU sympathetic approach:

COURT HAS SHOWN DEEP RELUCTANCE TO GO AGAINST EU LAW: not only does the EU need to act ultra vires but the breach must be manifest & the CJEU must have had a prior opp to review

FACTS: 2002 German law which allowed employees over the age of 52 to be granted fixed-term contracts challenged.

-       Argued that Mangold decision was ultra vires because it had decided that a Directive could be invoked against a private company before the Directive’s transposition deadline

HELD: BvR said that the decision was not ultra vires

1.     Ultra Vires review MAY ONLY be exercised in a manner which is open towards European Law

2.     Threshold for ultra vires is high

o   EU institution ‘must be manifestly in violation of competences’ & the CJEU must have had a prior opp to conduct the same review

So can we say that this decision reflects the BVerfG’s attempt to balance German constitutional sovereignty with respect for the primacy & autonomy of EU law

M. Payandeh, ‘Constitutional Review of EU Law after Honeywell’ (2011)

Payandeh sees the BVerfG’s review powers not as hostile to the EU, but as strategic and dialogical

While the BVerfG is often described as EU-friendly Payandeh says its approach is more complex-

·       While Honeywell was EU friendly (emphasized CJEU cooperation),it must be seen alongside Lisbon decision (decided by the same judges around same time) - asserted strong identity review powers.

o   Honeywell: Court restrained itself (limiting ultra vires review)

o   Lisbon: court asserted authority (proclaiming identity review).
Shows the BVerfG uses different tools to balance integration openness with sovereignty protection.

Although the Court has developed these review doctrines, it has rarely activated them in practice.
Their true function lies in their latent threat —to influence both EU institutions and German authorities to respect constitutional boundaries

A series of judgements of pull & push between German courts & CJEU:

⚖ Key Themes

Judicial dialogue → constitutional tension:
OMT shows cooperation; Weiss shows confrontation.

Ultra vires review:
Still exists, but only in exceptional cases.

Democracy and legitimacy:
The BVerfG roots its review in protecting democratic sovereignty.

Outcome: Despite moments of defiance, the EU legal order remains intact — but under a continuing latent threat of national constitutional limits.

🇩🇪 OMT (Outright Monetary Transactions)

FACTS: European Central Bank created the OMT programme to buy bonds from eurozone states struggling to raise capital

The BVerfG objected that:

1)     The ECB had no Treaty power to make such purchases

2)     Article 123 TFEU prohibits direct monetary financing of governments.

Q: Were breaches “manifest and structurally significant” to make decision ultra vires (beyond EU powers)?

HELD (BVerfG): They might be, so the BVerfG referred the question to the CJEU = COOPERATION

HONEYWELL STANDARD: Violation must be manifest (clearly beyond powers) & structurally significant (shifting power balance from states to EU).

-       Structural significance especially arises if it affects: Germany’s constitutional identity, or

Democratic control over key national competences (like fiscal policy).

🇪🇺 Gauweiler (2015)

AG: warned that allowing Member States to claim a separate “constitutional identity” beyond Art. 4(2) TEU could undermine EU unity

CJEU: OMT programme is valid -  rejecting ultra vires claim

-       Saw the OMT as part of the ECB’s monetary policy mandate, within EU powers.

Preliminary reference returned to Germany

🇩🇪 BVerfG’s Response (2016)

German Court accepted the CJEU’s ruling - found no constitutional violation

The Bundesbank could participate in OMT if it followed the EU conditions set by the CJEU.

Honeywell standards were reaffirmed, but with stronger emphasis on the link between ultra vires review and democracy

·       EU acts exceeding conferred competences lack democratic legitimacy, since sovereignty rests on national consent.

·       Ultra vires review remains EU-friendly, only used in exceptional cases/after CJEU review

Tho no breach found, BVerfG criticised the CJEU’s reasoning as weak

Payandeh (2018)

Since Solange I, the BVerfG has built a system of self-claimed competences to police EU authority

·       OMT reference was particularly tense: many feared the BVerfG might defy the CJEU

-       Even though it didn’t, each case leaves the EU in suspense = constitutional uncertainty

🇩🇪 Weiss / PSPP Case (2020)

FACTS: ECB’s Public Sector Purchase Programme (PSPP) — another bond-buying scheme — was referred to the CJEU by the BVerfG

CJEU: PSPP is valid (within ECB’s monetary policy powers).

BVerfG: CJEU acted ultra vires – by treating the ECB’s actions as purely monetary (when they had major fiscal effects), the CJEU expanded EU powers without consent

-       Thus, the CJEU’s judgment had no binding force in Germany

Nicolaïdis, 2020:

The BVerfG created an impossible proportionality test, ignoring that monetary policy inevitably affects the economy — a misunderstanding of how economic tools work.

🇪🇺 CJEU’s Counter-Response

Reaffirmed that only the CJEU can rule on the validity of EU acts.

Allowing national courts to do so would threaten legal unity and legal certainty across the Union

🧨 Aftermath — “Bomb defused”

BVerfG allowed a 3-month period for the ECB to justify proportionality

·       Bundesbank provided documentation, effectively satisfying the Court

CJEU & ECB refused to engage directly (to avoid legitimising national review)

IN PRACTICE: German Central Bank continued applying the EU programme — crisis was contained, & EU rule remained in force.

DENMARK 🇩🇰

• Like the (BVerfG), the Danish Supreme Court (SCDK) challenged CJEU’s claim of supremacy over national law

• BUT – with “extreme caution” (Høegh, 1999), generally reserving (rather than exercising) the power to review EU acts for compatibility with Danish constitutional limits.

⚖ Ajos Case (2016)

TAKEAWAY: demonstrates Danish Supreme Court resisting CJEU supremacy when EU acts beyond what Denmark explicitly consented to in its Accession Act

FACTS:

·       Concerned whether general EU law principles (prohibition of age discrimination (from Mangold)) could be applied horizontally between private parties in Denmark

·       CJEU had already held that national courts must disapply conflicting national laws in line with EU principles, even when those principles are unwritten.

·       SCDK disagreed.

DANISH SC: Law on Accession didn’t give Danish courts the power to let an unwritten EU principle override national law.

·       SCDK re-framed the dispute as one of Danish constitutional law, not EU law - Accession Act had not transferred sovereignty to that extent.

o   Prioritising national constitutional limits over the CJEU’s expectation of cooperation (Honeywell-style dialogue).

o   This marked a departure from the EU-friendly judicial dialogue seen in Germany.

·       Danish provision stood — EU law was not applied.

Klinge (2016): Two possible readings:
(a) Disobedience — the SCDK ignored clear CJEU instructions.
(b) Judicial dialogue — the SCDK contributed to ongoing debate about national vs EU judicial roles.

Madsen (2017): Favors (a) — disobedience

SCDK’s decision is seen as less cooperative and more sovereigntist than Germany’s Honeywell/Lisbon decisions (refused to apply EU law, even when the CJEU ruled otherwise)

-       Attempt to stay “apolitical” was in fact deeply political, since EU law is part of Danish law — “switching it off” undermines the legal coherence of the system.

🗳 Broader Constitutional Context

·       1972: Denmark’s EU referendum passed narrowly (35% voted no) 

·       Maastricht (1996): the SCDK adopted a Solange-like approach: EU law would apply unless there was clear evidence the CJEU had gone beyond the powers transferred in the Accession Act.

·       Lisbon (2009): SCDK hardened its stance — effectively inviting challenges to EU acts that might exceed Danish sovereignty.

·       Ajos (2016): crystallization of this approach = stricter national “patrolling” of EU competences.