Analysis of the jurisprudence of courts of selected European Union member states regarding the supremacy of constitutional regulations over European Union law

Main theses

• The principle of the primacy of EU law following the jurisprudence of the German Federal Constitutional Court is not absolute. CJEU judgments may be scrutinized by the FCC, and as a result of this scrutiny - ignored.
• Since the 1970s, the Italian Constitutional Court has maintained a line of jurisprudence that reserved the possibility of reviewing the constitutionality of Community law and possibly derogating from the principle of primacy of EU law. As a result, the application of two judgments of the CJEU was refused and the principle of primacy was waived due to inconsistency with the provisions of the Italian constitution.
• The Italian Constitutional Court's order to completely ignore CJEU judgments has come to be called the doctrine - riserva di legge (reservation of rights).
• The Danish Supreme Court found that the Constitution did not allow the delegation of the power to make decisions inconsistent with the Constitution itself to an international organization. Therefore, if the delegated powers are exceeded, national courts may refuse to apply such legal acts, as well as judgments issued by a judicial authority of the Community, such as the CJEU.
• The Czech Constitutional Court pointed out that the recognition of the primacy of EU law is conditional because the proper subject of sovereignty and the resulting competence remains the Czech Republic, whose sovereignty is based on the provisions of the Constitution.
• The same court rejected the thesis about the superiority of the CJEU over national constitutional courts, pointing to the requirement of cooperation of equal partners who respect and complement each other in exercising their competencies and do not compete with each other.
• Czech jurisprudence shows that the conferral of competencies to the bodies of the European Union has its limits, determined by the sphere of state sovereignty, manifested in the actual substantive exercise of power, and this transfer is not unconditional and may be withdrawn to the original national administrators if the interference of EU law with the national the legal order will exceed the established limits.
• Polish Constitutional Court consistently maintains and develops a line of case-law concerning the supremacy of the Constitution of the Republic of Poland on EU law. He also recognizes that the contradiction between constitutional and community norms cannot in any way be resolved in the Polish legal system by recognizing the supremacy of the community norm concerning the constitutional norm. Such a contradiction could not lead to the loss of validity of the binding constitutional norm and its replacement by a Community norm, or to limiting the scope of application of this norm to an area that was not covered by the regulation of Community law.
• Spanish Constitutional Court, however, recognizes the primacy of EU law over national, it indicates that it is not absolute, and outlines the clear limits of the rule. Reminded should be also a provision of the Criminal Chamber of the Supreme Court of Spain on 9 January 2020. In which to discard the decision of the ECJ and decided not to stay in prison the leader of the Catalan separatists.
• French Council of State points out in its decision of 21 April 2021, That the French Constitution remains the supreme rule of domestic law. According to the Council, the Constitution confirming the existence of the legal order of the European Union integrated with the internal legal order, confirms the paramount place of the Constitution in that order.
• In response to the judgment of the CJEU, which made it possible for the local courts to ignore the Romanian Constitution in the event of a conflict with EU law (the case concerned the reform of the judiciary), the Romanian Constitutional Tribunal ruled on 8 June 2021 that the Basic Law retains its hierarchically superior position, and the CJEU acted outside the powers granted to the European Union by issuing the judgment. European competence.

1. GERMANY

The Federal Constitutional Court (German Bundesverfassungsgericht; hereinafter: the "FCC"), like its Italian counterpart, has been maintaining and developing the jurisprudence since the 1970s, stipulating the possibility of reviewing the constitutionality of Community law and a possible departure from the principle of primacy.

The most important judgments of the FCC include, among others: the judgment of May 29, 1974, in the case of Internazionale Handellgeselschaft[1] reference number BvL 52/71 (so-called Solange I), the judgment of October 22, 1986, in the case of Wünsche Handelsgesellschaft[2]  reference number BvR 197/83 ( Solange II), the judgment of 12/12/1993 on the Maastricht Treaty[3], the judgment of February 17, 2000, file ref. 2 BvR 1210/98[4], the judgment of June 30, 2009, file ref. 2 BvE 2/08[5], the decision of June 6, 2010, file ref. 2 BvR 2661/06[6], the judgment of April 24, 2013, file ref. 1 BvR 1215/07[7], the judgment of June 21, 2016, file ref. 2 BvR 2728/13[8] (OMT) and the judgment of May 5, 2020, file ref. 2 BvR 859/15[9].

In the last fifty years, FTK successively developed several doctrines, which justified, among others, subsequent verification of the CJEU judgments by the FCC, and in some cases resulted in the refusal to apply CJEU judgments.

A. Ruling of the Second Senate (Chamber) of the FCC of May 29, 1974, file ref. BvL 52/71 

In the justification of Solange I's judgment, it was indicated that the authorization to transfer competencies to international institutions does not allow for any changes to the fundamental structure of the constitutional order of Germany. Thus, the principles resulting from the German Basic Law may not be changed other than by amending the German Basic Law, e.g. through the normative activity of international institutions (for example the present CJEU - author's note). In this judgment, the Federal Constitutional Court also stated that the Court of Justice (ECJ predecessor) can not state whether the transnational provision of the law conforms with the German Grundgesetz. The ruling also indicated the principle of conditional recognition of the primacy of Community law. The primacy of EU law is not absolute - according to the ruling, the Federal Constitutional Court may rule on non-compliance with the standards of EU law German Grundgesetz.

B. Ruling of the Second Senate (Chamber) of the FCC of October 22, 1986, file ref. BvR 197/83

In the Solange II judgment of October 22, 1986, the FCC confirmed the conditionality of the primacy of Community law and stated that, according to the Basic Law, the possibility of conferring state powers to international institutions may not violate the constitutional order by undermining its basic structure and principles on which it was founded.

C. Judgment of the Second Senate (Chamber) of the FCC of 12 December 1993, 2BvR 2134, 2159/92

In the judgment of 12 December 1993 on the Maastricht Treaty, the so-called doctrine of Kompetenz -Kompetenz. It consists in stating that since the European Union is not a sovereign state, it has no legitimacy to define its competencies. At present, the European can only act within the powers conferred on it by the sovereign Member States. According to the Kompetenz-Kompetenz doctrine, EU bodies, such as the CJEU, are forbidden to act outside the competencies entrusted to them, i.e. ultra vires. The thesis that the CJEU has gone beyond the powers entrusted to EU institutions was also emphasized by the Prime Minister in his application to the Constitutional Tribunal to examine selected provisions of the Treaty on European Union with the Constitution of the Republic of Poland. In the statement of reasons for the judgment 2BvR 2134, 2159/92, the FCC noted that: "The future interpretation of the rules of competence by the institutions and bodies of the Communities must take into account the fact that the TEU adopts a fundamental distinction between the exercise of the limited powers conferred upon them by and the Treaty amendment. Consequently, the interpretation of the rules of the Treaty cannot lead to results similar to the extension of its provisions; such an interpretation of the Treaty rules of competence would not have binding effects in the Federal Republic of Germany (...). If, for example, European institutions or bodies applied the Treaty or interpreted it creatively in a way that did not correspond to its content (...) German state bodies could not apply such acts for constitutional reasons (...), the FCC examines whether legal acts issued by European institutions and bodies are within the limits of their superior rights, or exceed them"[10].

D. Judgment of the Second Senate of the FCC of June 30, 2009, file ref. 2 BvE 2/08

The ultra vires doctrine of the FTK was confirmed by examining the act on the ratification of the Lisbon Treaty (judgment of 30.06.2009). This ruling delineated the limits of integration and confirmed the competence of the FCC to control the activities of EU bodies exceeding the delegated powers. The right of the FCC to assess the constitutionality of acts of supranational law was also repeated. In the justification of the judgment of June 30, 2009, a second concept was also presented confirming the conditionality of the primacy of EU law, the so-called - "constitutional identity check test". In the largest possible short it can be defined as the right FTK for a final assessment of compliance with key standards of the German Grundgesetz both EU primary and secondary law. If the FCC determines that a given act is incompatible with the standards of eg. Human dignity, fundamental rights, tripartite power, that is, entitled to declare their non-application in Germany and to disregard the primacy of supranational law over national law[11].

E. Decision of the Second Senate (Chamber) of the FCC of 6 July 2010, file ref. 2 BvR 2661/06     

When presenting the jurisprudence of the Federal Constitutional Tribunal, it is impossible not to mention the decision of the FCC of 6 July 2010, ref. No. 2 BvR 2661/06, in which the FCC referred in detail to the judgment of the Court of 22 November 2005 in case C-144/04 Mangold.

The decision included the thesis that although it is possible for the CJEU to develop EU rules, it was not possible to abuse competencies in a way that would result in the law-making activity of the court. The FCC paid particular attention to political matters that should belong to the exclusive domain of the legislature. In the justification of the decision, attention was also drawn to the inadmissibility of the CJEU going beyond the framework of a specific case and taking political decisions or making structural shifts in the system of the constitutional separation of powers and influence[12]. It is worth noting that in its decision, the Federal Constitutional Court pointed out that the ECJ’s  judgment Mangold "leaves the member states free in terms of employment policy, which is largely reserved to member states"[13].

F. Judgment of the First Senate (Chamber) of the FCC of April 24, 2013, file ref. 1 BvR 1215/07      

Recalling the fundamental thesis jurisdictional Federal Constitutional Court in Karlsruhe worth forth to moon the most interesting parts of reasons for the judgment of April 24, 2013, Ref. 1 BvR 1215/07. The case concerned the assessment of the provisions of the Act on the establishment of databases to combat terrorism in the context of the Charter of Fundamental Rights (hereinafter: "CFR"). The act, which is often cited in questions referred to the CJEU by Polish courts, as well as in judgments issued in these cases. According to the justification of the above-mentioned judgment[14]: "The decision cannot, therefore, be understood and applied in such a way that absolutely any connection of the subject of the provision with a purely abstract scope of EU law or only incidental consequences for EU law would be sufficient to bind the Member States by the fundamental rights of the Union set out in the Charter Fundamental Rights". On the contrary, the European Court of Justice itself expressly states in this decision that European fundamental rights under the Charter "apply in all situations governed by European Union law, but not outside such situations" (ECJ, judgment of 26 February 2013, C - 617/10, point 19). Although the so-called British protocol[15] provides for a clause opt-out within the competence of the ECJ concerning compliance testing regulations, practices or administrative action of the rights, freedoms and principles deriving from the CFR does not include Germany, and refers to the Polish Republic, a Federal Constitutional Court based on the doctrine ultra vires stated explicitly that the Charter of Fundamental Rights does not apply to national measures whose objectives relate to the internal order, even if those objectives are the same as those set out in EU legislation[16]. At the same time, the significance of the British Protocol in the context of Poland is ignored by the CJEU. This in itself proves that the CJEU has granted itself powers that have not been entrusted to it by the Republic of Poland (see: ultra vires).

G. Decision of the Second Senate (Chamber) of the FCC of 14 January 2014 and the judgment of the Second Senate (Chamber) of the FCC of 21 June 2016, file ref. 2 BvR 2728/13     

Another example of the judgment of the FCC, in which this court departed from the absolute primacy of EU law over German law, is the FCC's decision of 14.01.2014 on the Outright Monetary Transactions program organized by the European Central Bank. In its decision, the Federal Constitutional Court addressed the question for a preliminary ruling, while reserving the final decision on the compatibility of the ECB with the German Grundgesetz will belong to the FCC. It should be noted that in this ruling, the FCC referred to the jurisprudence of courts of ten EU Member States (including Poland) to confirm that the possibility of constitutional review of EU law in the matter of overstepping of competencies by EU bodies is universally approved. Ultimately, after the CJEU issued its judgment on June 16, 2015[17] German constitutional court in the judgment of June 21, 2016, file ref. 2 BvR 2728/13[18] put forward a thesis that: "Constitutional organs, due to their responsibility in the field of European integration, must counteract acts of institutions, organs and organizational units of the European Union that violate constitutional identity or constitute an act of ultra vires"[19].

H. Judgment of the Second Senate (Chamber) of the FCC of 5 May 2020, file ref. BvR 859/15    

The latest ruling of the FCC in the scope relating to the rulings of the CJEU is the judgment of 5 May 2020, ref. No. 2 BvR 859/15[20]. As in the previous case, the matter analyzed by the FCC concerns the activities of the European Central Bank (purchase of public sector assets). In the justification of the judgment of 5 May 2020, the FCC explicitly pointed to the need to omit the judgment of the CJEU of 11 December 2018 [21] as the EU institutions exceed the competencies conferred on the EU by the Treaties. Based on the above-mentioned the judgment can be read, inter alia, the following theses:

1) if CJEU exceeds its powers, usurped the right to decide on matters which have not been communicated to the EU institutions with the Treaties and reading standards in a way that exceeds the margin of interpretation, his judgment is not already covered by Article. 19 paragraph 1, second sentence, of the TEU. At least concerning Germany, the judgments of these, as required devoid of democratic legitimacy, do not have a sound basis following article 23 sec. 1, second sentence, in connection with art. 20 paragraphs 1 and 2 and article 79 sec. 3 of the Basic Law[22];

2) wide discretion range used by ECJ with the standard limit of control, clearly does not provide the sufficient effect principle of granting competence. This phenomenon paves the way for a continuous reduction of the competencies of the Member States[23];

3) for protection of the principle of a democratic state of law it is necessary to respect the division of powers grounds by the institution that the European Union. The principle of conferral, one of the fundamental principles of the European Union, cannot be undermined[24];

4) in the context of the demarcation of competencies between the European Union and the Member States, the principle of proportionality is of great importance due to the principles of the democratic state of law and the sovereignty of the nation. Disregarding these requirements may shift the foundations of the division of competencies in the European Union, undermining the principle of conferral[25];

5) The German constitutional bodies, authorities and courts can not participate in the development, implementation, and execution of laws operationalization of ultra vires[26].

It should be emphasized that the principle of the primacy of EU law, under the jurisprudence of the Federal Constitutional Court, is not absolute. Judgements of CJEU can be controlled by the FCC, and as a result of this control - ignored. The key issue that permits questioning the case-law of the ECJ are cases when EU institutions are beyond the scope of their powers (ultra vires) or fraudulently trying to interfere in the constitutional law of Germany (test of constitutional identity checks).

2. ITALY

The Italian Constitutional Court (Corte Costituzionale) has maintained the jurisprudence (controlimiti) since the 1970s, stipulating the possibility of reviewing the constitutionality of Community law and possibly derogating from the principle of primacy[27]. As a result of the above-mentioned jurisprudence - counter - limits, there was a refusal to apply two judgments of the Court of Justice of the European Union and a waiver of the principle of priority due to non-compliance with the provisions of the Italian Constitution. With the principle of primacy of EU law, it is not therefore absolute judgments of the ECJ and can be controlled by the Italian Constitutional Court, as a result of this control also rejected.

A. Judgment of the Constitutional Court of 18 December 1973 in the case of Frontini v. Ministero delle Finanze     

The cardinal ruling on this issue is the ruling of the Constitutional Court of December 18, 1973, in the case of Frontini v. Ministero delle Finanze. The case concerned the imposition of Community import levies on farmers in one of the regulations and the unacceptable amount of these levies. Constitutional Court on the canvas of the abovementioned case stated that article 11 of the Italian Constitution creates some limitations of state sovereignty, which are the basic principles of constitutional order and the inalienable rights of the human person. As a result of the above, it would be unacceptable for Italy to limit sovereignty in favour of an international organization that would not guarantee the protection of the fundamental rights of the human person at least to the same extent as the Constitution of the Italian Republic[28]. Italian Court Constitutional concluded that there was no breach of the Italian Constitution, however, has made fundamental findings on the application of Community law in Italy, which can be summarized as follows:

1) confirmed the competence of the European Community to issue regulations of a normative nature equal to acts that do not require implementation into national law, but within the scope of competencies precisely defined in the treaties;     

2) excluded the verification of the constitutionality of secondary law, if, however, an attempt was made to give art. 189 of the Treaty Establishing the European Union (hereinafter referred to as the TEEU) an aberrant interpretation, the Constitutional Court could assess whether the Treaty itself is compatible with the fundamental principles and rights expressed in the Constitution. This "aberrant interpretation" could, according to the Italian Constitutional Court, infringe the highest values of the domestic legal order, such as the inalienable rights of the human person;     

3) introduced the possibility of constitutional control of primary law, and in particular its interpretation, which cannot be reconciled with the Italian constitutional order;     

4) the possibility of applying Community law by national judges was limited. In the event of a conflict of Community and national law, judges cannot make an independent decision not to apply a national norm - the Constitutional Court should previously recognize such a norm as unconstitutional[29].

B. Constitutional Court judgment of 5 June 1984 in the Granital case     

In the judgment of 5 June 1984 on Granital (file no. 170/184) Italian Constitutional Court confirmed the exclusive competence to examine the constitutionality of both sole Treaties and laws ratifying them, in particular for compliance with the fundamental principles of the constitutional system and the rights of individuals in a situation, if the Treaties have been interpreted in a way that empowers the EU institutions to issue acts that violate those rules. National law, by its compliance with Community law, allows its direct application in all Member States.

C. " Saga Taricco "     

One of the most discussed issues concerning the dialogue between a Member State and the CJEU is the so-called "Saga Taricco"[30]. It begins on September 8, 2015, in the case of Ivo Taricco[31]. The accused were charged with establishing and organizing a criminal organization in the tax years from 2005 to 2009 to commit various offences in the field of VAT. In fact, they were charged with creating fraudulent legal structures of the 'VAT carousel' type, consisting in particular of creating shell companies and issuing false documents by means of which they purchased goods, in the present case, champagne bottles, without VAT. The request for a preliminary ruling in a preliminary ruling concerned the interpretation of article 101 Treaty on the Functioning of the European Union (TFEU), 107 TFEU and 119 TFEU, as well as art. 158 Council Directive 2006/112 / EC of November 28,  2006, In the common system of value-added tax. The CJEU judgment, in this case, caused a lot of controversy in the doctrine from the perspective of the protection of fundamental rights (in particular, taking into account the potential need to resume - in its light - proceedings that had already been discontinued due to the statute of limitations), and also resulted in considerable uncertainty in legal transactions. The CJEU based its judgment on art. 325 TFEU, according to which the Member States must fight fraud affecting the financial interests of the Union by effective and dissuasive measures. The Court has established a direct link between VAT fraud and the financial interests of the Union and underlined the need to initiate criminal proceedings in such cases[32]. The analyzed judgment was unclear and there were numerous interpretative discrepancies in it. The Italian court defended the principles flowing from the basic law. On the question referred for a preliminary ruling by the Italian Constitutional Court, by the judgment of 5 December 2017, the CJEU ruled that "Article 325 par. 1 and 2 TFEU must be interpreted as requiring a national court, in the context of criminal proceedings relating to offenses in the field of value added tax, not to apply national statute of limitations relating to substantive national law which preclude the imposition of effective and dissuasive criminal sanctions in a significant number of cases of serious fraud affecting the financial interests of the European Union or which provide for shorter limitation periods for serious fraud affecting those interests than the limitation periods for fraud affecting the financial interests of a given Member State, unless such non-application results in a breach of the statutory principle of specificity of offenses and penalties due to insufficient specificity of the applicable act or due to the retroactive effect of provisions establishing stricter conditions of liability than those in force at the time the offense was committed"[33].

The Italian Constitutional Court rejected in its entirety the possibility of applying both judgments of the CJEU in the scope of omitting the statute of limitations due to incompatibility and contradiction with the wording of art. 25 of the Italian Constitution, where it is stated:

1) no one may be excluded from the jurisdiction of the court to which he is subject by law,     

2) no one may be punished otherwise than based on the act which entered into force before the commission of the act,     

3) no one may be subject to precautionary measures except in the situations provided for by the law[34].

The Constitutional Court's order to completely ignore CJEU judgments, came to be called doctrine - riserva di legge (reservation of rights)[35]. The first court’s judgments focused primarily on defining the position of EU law in the national system. Over time, the Italian Constitutional Court opposed the principle of the primacy of EU law over the Italian Constitution. Currently, the Constitutional Court may review CJEU judgments and, within its scope, it is possible to reject them when the interpretation of the treaties made by the CJEU will be incompatible with the norms and constitutional acquis of Italy and with art. 6 para. 3 TEU[36].

3. DENMARK

1. Judgment of the Danish Supreme Court of April 6, 1998, file ref. I 361/1997

The proceedings before the Supreme Court (Højesteret) were initiated by a group of citizens in the form of a constitutional complaint and concerned the amendment to the Act of 1972 on Denmark's accession to the European Communities following the ratification of the Maastricht Treaty. As mentioned above, § 20 para. 1 of the Constitution states that "the rights vested in the authorities of the Kingdom under this Constitution may, within the limits prescribed by law, be transferred to international bodies established by mutual agreement with other states concerning the establishment of international principles of law and cooperation". Although the Supreme Court ultimately found the constitutionality of the provisions of the reviewed act, it clearly expressed its opinion on the relationship between the constitution and EU law[37].

The Supreme Court considered the question to what extent the Danish courts are bound by the interpretation of the European Court of Justice (ECJ) with respect for the conferral of competencies. The Supreme Court indicated that under the accession, the ECJ obtained the right to interpret the scope of the Treaties. This means that Danish courts cannot declare an act of the European Community invalid in Denmark without first referring a question to the ECJ for a preliminary ruling on the conformity of the act with the Treaties. This solution is in line with the scope of the delegated competencies. However, it is a consequence of the powers enjoyed by national courts High flexibility of testing the constitutionality of laws national parliament that they can not be deprived of the right to hear cases concerning the crossing by the European Community powers delegated under § 20 of the Constitution[38]. Moreover, as pointed out by the Supreme Court, in the event of an attempt to exceed the powers delegated to exercise by an international organization, the government would be constitutionally obliged to veto the draft of such legislation[39]. As indicated in the literature, the "Carlsen doctrine" consists in the fact that in the event of doubts as to the constitutionality of Community law, the national constitutional court may refer a question to the ECJ for a preliminary ruling on the interpretation of Community law. However, if, as a result of the issued judgment, he was not convinced of this compliance, it is up to him to decide on the application of the norm of Community law[40]. Consequently, the Supreme Court ruled that the Constitution did not allow the delegation of powers to an international organization to make decisions inconsistent with the Constitution itself. Therefore, if the delegated powers are exceeded, national courts may refuse to apply such legislation. The same applies to judgments issued by a judicial authority, such as the European Court of Justice in the case of the European Community[41].

Summing up, as indicated by the cited foreign scientific literature, in its judgment on the Danish Act on consent to the ratification of the Maastricht Treaty, the local Supreme Court noted that the Danish courts retain the right to investigate whether the legal acts of the European Community retain the limits of the powers conferred on the exercise by accession[42]. Ultimately, the Supreme Court, despite the above-mentioned reservations, found the amending act compliant with the Constitution, as the scope of the delegated powers fell within the scope provided for in § 20.

2. Judgment of the Danish Supreme Court of 6 December 2016, file ref. no. 15/2014

The cited judgment of the Supreme Court concerned a labour dispute. The Supreme Court referred a question for a preliminary ruling to the CJEU referring to the need to apply European Union law directly, asking for a decision whether the principle of legal certainty and legitimate expectations should not prevail concerning the private legal entity, which is the employer, in the discussed case.

The Court of Justice of the European Union issued a judgment on April 19, 2016, indicating that the principle of non-discrimination based on age is a general principle of EU law, also derived from the constitutional acquis of the Member States, and therefore requires such an interpretation of national law to be made following this principle, and if this is not possible, national rules should be departed from - even in horizontal relations[43].

The Supreme Court completely rejected the CJEU judgment, pointing out that the domain of national law and the national constitutional court is to decide whether the principle of non-discrimination based on age is directly applied in a Member State with precedence over national law on a horizontal level. The Supreme Court also stated that Denmark had not transferred competence to the European Union to apply the Charter of Fundamental Rights directly to Denmark[44]. According to the Supreme Court interpretation of the possible adoption of pro-EU, in this case in favour of the unwritten principle of non-discrimination on grounds of age, would in concreto interpretation is contrary to law[45].

Tom Flynn points to important passages from the ruling: “The Court of Justice of the European Union] has jurisdiction over issues relating to the interpretation of European Union law. (…) It is therefore for [the Court of Justice of the European Union] to decide whether a provision of EU law has direct effect and takes precedence over conflicting national laws, including in disputes between individuals. (...) The question whether a provision of EU law may have direct effect in Danish law, as required by EU law, concerns primarily the Accession Act, by which Denmark acceded to the European Union (...) at the treaty level under EU law is to have direct effect (thus creating obligations) and to give priority over Danish conflict of law in a dispute between individuals, where this principle has no basis in specific treaty provisions, is not provided for in the Act on Accession"[46]. This means that although it may occur primacy of European Union law against conflicting national rules, however, this may not apply to rules which do not have a legal basis in the Treaties.

Finally, in the justification of the ruling, the Supreme Court stated that “(...) the Act on Accession does not constitute a legal basis for the unwritten rule prohibiting age discrimination to take precedence over Art. 2a sec. 3 of the Act on Employed Employees to the extent that the provision is inconsistent with the prohibition”. Ultimately, the Supreme Court did not apply the above-mentioned principle.

4. CZECH REPUBLIC

The jurisprudence of the Czech Republic in shaping the doctrine approving the constitutional review of EU law and acts of EU institutions deserves special attention, as the Czech Constitutional Court (hereinafter: SK) already in the first decisions on the issue in question granted the supreme role to the Czech constitution, paying attention to the need to protect it against excessive interference of EU law.

1. The judgment of the Constitutional Court of March 8, 2006, Pl. US 50/0453

This position can be derived from the judgment of the Czech SK of March 8, 2006, [47] on the so-called sugar quotas, in which the constitutionality of the Regulation of the Government of the Czech Republic No 364/2004 on certain conditions for the implementation of the instruments of the common organization of the market in the sugar sector was carried out. Although the regulation was deemed unconstitutional due to the conferral of competencies in this matter to the European Union, the position of national legislation concerning the EU legal order has been extensively presented.

The Czech SK indicated that the recognition of the primacy of EU law is conditional because the competent subject of sovereignty and the competencies resulting from it remains the Czech Republic, whose sovereignty is based on Art. 1 para. 1 of the Constitution. EU law will take precedence over national law after meeting the formal condition of the imperative attributes of state and material sovereignty, relating to the substantive aspects of exercising power, therefore the effects of transferring some powers of state bodies may continue until they are exercised with the principles of state sovereignty of the Czech Republic and in a way that does not threaten the very essence of the rule of law in the material sense. Otherwise, the development of the EC or the EU would threaten the essence of the sovereignty of the Republic or the fulfilment of the requirements of a democratic state ruled by law, which would entail the need to restore the powers conferred on the Czech state organs. The Constitutional Court is an organ established to protect constitutionality[48]. This ruling indicates that in the Czech legislation there will be no unconditional consent to the conditions of EU membership in a situation where the above-mentioned principles of the legal order are to be violated, and it also delimits the limits of Community law in the Czech legal order[49].

2. Constitutional Court judgment of 26 November 2008, Pl.US 19/08 and in the judgment of the Constitutional Court on 3 November 2009, Pl.US 29/09

The Czech Constitutional Court took a stance on the primacy of EU primary law in its judgments of 26 November 2008[50] and of 3 November 2009[51], in which examined the compliance of the Treaty of Lisbon with the Constitution. There, three principles concerning the relationship between the constitutional order of a Member State and EU law were indicated:

1) general recognition functionality of the EU institutional framework to ensure control of the performance range of competencies transferred, provided that the position can be changed in case of non-functioning of the framework;     

2) for constitutional order of the Czech Republic and its framework relevant is not only the text and content of the Lisbon Treaty but also its future, specific use;     

3)  The Czech SK is authorized to issue final decisions and may examine whether the EU legal acts do not exceed the powers transferred to the Community bodies under Art. 10a and the basis for such actions is the abandonment of the identity of values and the already mentioned exceeding the entrusted competences[52].

The further discussion emphasized that in the sphere of the so-called shared competencies should be considered that if a competence (both exclusive and shared) is not exclusively defined in the provisions of the Treaties as EU, it remains at the full disposal of the Member State[53] and rejected the superiority of the CJEU over national constitutional courts, pointing to the requirement of cooperation of equal partners who respect and complement each other in exercising their competencies, and do not compete with each other[54]. The Czech SK has again indicated the constitution as the highest law in the state, and the SK as the highest body for the protection of the constitutionality of Czech law, also in the context of possible abuses of powers by EU bodies and law[55].

Similarly, in the above-mentioned judgment of 2009, the Czech Constitutional Court recognized the compatibility of the treaties with the Czech constitutional order, again referring to the constitutional identity and the principle of operation based on the powers conferred as the limits of the primacy of EU law and the basis for the review of this legislation by a state body[56].

3. Judgment of the Constitutional Court of January 31, 2012, Pl. US 5/12

The above-presented case law led to challenging the judgment of the ECJ in its judgment of 31 January 2012[57], in the case of the so-called Slovak pensions, based on which different positions of the Czech SK and the Czech Supreme Administrative Court clashed (hereinafter: "Supreme Administrative Court"). After the break-up of Czechoslovakia, the newly-established states held a dispute over the obligation to pay pensions due to citizens of a country that no longer existed, culminating in an agreement under which each country undertook to be responsible for paying pensions to citizens whose employer was based on the day of the division or immediately before the division of the country. in one of these two countries. As a result, Czech citizens received pensions from both the Czech Republic and the Slovak Republic, which were characterized by a significant disproportion caused by the much worse economic situation in Slovakia. The Czech SK ruled that this situation was against the constitutional norms and obliged the state authorities to pay an allowance to citizens who receive old-age pensions from the Slovak Republic[58]. The NSA did not agree with the above judgment, and after the Czech Republic's accession to the EU found it to be contrary to s with EU law, and that Council Regulation (EEC) No 1408/71 of 14 June 1971 r. On the application of social security schemes to workers employees and their families moving within the Community[59], and therefore referred questions for a preliminary ruling to Luxembourg. In response, the CJEU stated that Council Regulation (EEC) No 1408/71[60] denies the existence of a ruling, as in the main proceedings, which would constitute an obligation to subsidize pensions to citizens who are socially obligated by Slovakia, and that such a state leads to discrimination based on nationality and place of residence, which is illegal under EU law[61]. On the other hand, the Czech SK remained with its position in the same case, stating that there is no foreign element in the discussed issue, which would entitle the application of EU law, because the time worked in Czechoslovakia cannot be treated as employment abroad. As a result, there is no EU connector in the case that would legitimize the application of the Community legal order, and the judgment of the CJEU was criticized by the Czech SK, considering it as an expression of disrespect for European history, expressed in the recognition that legal relations resulting from the break-up of the state with a uniform security system social, do not differ from the legal relations arising from the free movement of persons within the European Communities[62]. It should be noted that the commented judgment is the result of only a formal analysis of the domestic and EU legal order, it is not based on any claim of the complainant and constitutes ultra vires ex officio control. In its judgment, the Czech SK also recalled the existing case law, which recognized himself as the guardian of the Constitution, the sole Constitution - as the highest law in force in the territory of the Czech Republic.

Against the background of the above-mentioned jurisprudence, there is an opinion that the conferral of competencies to the bodies of the European Union has its limits, determined by the sphere of state sovereignty, manifested in the actual substantive exercise of power. At the same time, this transfer is not unconditional and may be withdrawn to the original national administrators, if the interference of EU law with the national legal order exceeds the established limits. The body appointed to control the impact of Community law is the Czech Constitutional Court, which, while safeguarding the constitution understood as the highest legal act of the Czech Republic, may issue final decisions in which it decides whether the EU bodies have not exceeded the powers entrusted to them by their legislation. The basis of such actions of the Supreme Court is not only exceeding the limits of the powers conferred on them but also abandoning the identity of the values in the name of which the legislative authority was delegated. At the same time, it should be emphasized that the Czech legislation does not approve the superiority of the CJEU over the national constitutional court and does not consider the interference of Community bodies in the relations of national judicial authorities as justified, drawing attention to the need for mutual respect, cooperation and complementarity of legal orders. Consequently, national and EU legislation is designed to cooperate rather than compete, and their relationship is not based on a hierarchical structure. The Czech SK recognizes the primacy of Community law over national law, but this action is conditional on the fulfilment of certain conditions by the EU, which ensure that a Member State maintains its sovereignty.

5. POLAND

1. Judgment of the Constitutional Tribunal of May 11, 2005, file ref. K 18/04^[63]

The judgment in question indicated that the Constitution remains - due to its special power - the supreme law of the Republic of Poland concerning all international agreements binding on the Republic of Poland. This also applies to ratified international agreements on conferral of competencies "in certain matters". Due to Art. 8 para. 1 of the Constitution[64] of the supremacy of legal force, it enjoys the priority of validity and application in the territory of the Republic of Poland.

“Although the Tribunal is not empowered to independently assess the constitutionality of primary law of the European Union[65], it is this competence that serves him concerning the Accession Treaty as a ratified international agreement (Article 188 point 1 of the Constitution)".

In case of conflict norms of constitutional and Community Constitutional Court (Tribunal Court) pointed out, that: "such contradiction can not be in the Polish legal system in any way solved by the recognition of the primacy of Community standards in relation to the constitutional norm. Nor could it lead to the loss of the binding force of a constitutional norm and its replacement by a Community norm, or to limiting the scope of application of this norm to an area which was not regulated by Community law”. The Constitutional Tribunal also takes the position that neither Art. 90 sec. 1, nor Art. 91 sec. 3 of the Constitution may not constitute a basis for the transfer of an international organization (or its body) the authorization to enact legal acts or make decisions that would be contrary to the Constitution of the Republic of Poland.     

In the said judgment, the Constitutional Tribunal opted for the rejection of the "primacy" of Community law, and at the same time using the concept of "primacy". However, contrary to what was accepted by the CJEU, the Constitutional Tribunal found that the principle of priority does not determine - on an exclusive basis - the content of final decisions taken by sovereign Member States in the conditions of a hypothetical conflict between the EU legal order and constitutional regulation. According to the Constitutional Tribunal, "in the Polish legal system, decisions of this type should always be made taking into account the content of Art. 8 para. 1 of the Constitution ", according to which the Constitution "remains [...] the supreme law of the Republic""[66].

2. Judgment of the Constitutional Tribunal of November 24, 2010, file ref. K 32/09

In this judgment, the Tribunal upheld the views expressed in the justification of the judgment of 11 May 2005, ref. No. act K 18/04. The ruling emphasized once again that the Constitution, due to its special force, was “the supreme law of the Republic of Poland”.

The Tribunal noted that the Constitution allows for the possibility of delegating powers only in certain cases, which means a prohibition on conferring all competencies of a given body, conferring competencies in all cases in a given field and a prohibition on conferring competencies on the essence of matters determining the gestures of a given state authority body. Therefore, it is not possible to delegate powers to the EU that could interfere with the essence of constitutional organs. The Tribunal also derived such an interpretation from the assumption of the sovereignty of the nation, pointing out that "countries that are members of the European Union retain sovereignty due to the fact that their constitutions, which are an expression of state sovereignty, retain their meaning". The provisions of the Constitution "exclude the renunciation of sovereignty, the regaining of which is confirmed by the preamble to the Constitution as a condition for establishing itself by the Nation."

The Tribunal also emphasizes the issue of constitutional identity, which is particularly visible in the case of the conflict between Polish and EU law. In the opinion of the Constitutional Tribunal, constitutional identity is a concept that delimits the scope of exclusion from the competence of transferring matters constituting the basis of the system of a given state. Attention was also drawn to the fact that the delegation of competencies may take place not only once - during the adoption of accession treaties - but also in the case of changes to the provisions of these treaties.

3. Judgment of the Constitutional Tribunal of November 16, 2011, file ref. SK 45/09

In this judgment, the Tribunal stated that "the Constitution of the Republic of Poland retains [...] supremacy and primacy over all legal acts in force in the Polish constitutional order, including EU law". Moreover, the Constitutional Tribunal indicated that “EU regulations, as normative acts, may be subject to verification of their compliance with the Constitution in proceedings initiated by a constitutional complaint. The fact that these are acts of EU law, although they are also part of the Polish legal order, affects the specificity of this review by the Constitutional Tribunal”.

6. Judgment of the Spanish Constitutional Tribunal of 13 December 2004, file ref. DTC 1/2004

The Spanish Constitutional Court in the said judgment on the Treaty Establishing a Constitution for Europe indicated that “proclamation of the primacy of EU law by Art. I-6 of the Treaty does not contradict the primacy of the Constitution"[67].

The Spanish Constitution refers to the relationship of domestic law with EU law in Art. 93, which states that: “plenipotentiary to conclude treaties which are entrusting an international organization or institution with the exercise of powers under the Constitution may be granted by means of an organic law. The Cortes Generales and the Government shall ensure the implementation of these treaties and the provisions of international or supranational organizations to which powers have been delegated within their competence"[68].

The Tribunal also pointed to the primacy of European law over national law, emphasizing that it has the character of an "existential requirement", which means that it is necessary to ensure its direct application and to maintain the uniformity of the EU legal system. However, it is not absolute. The transfer of powers to the European Union - and, consequently - the integration of Community law into national law inevitably places restrictions on the sovereign powers of the state as long as European law complies with the fundamental principles of a democratic state ruled by law established by the Constitution.

The Court also formulated three necessary conditions for the application of the principle of primacy:

1) EU law should not go beyond the constitutional values of the member states and remain within the constitutional identity;

2) application of the principle of primacy can be only in respect of the powers allocated to the EU;

3) competence has been granted to the EU under the voluntary than the will and the Member States and on the same basis, it is possible to undo them.

In its ruling, the Tribunal also distinguished between the concepts of supremacy and primacy. In his opinion, supremacy should be understood as a relationship based on the hierarchy of norms, in which a lower-order norm is invalid if it violates a higher-order norm. Priority, on the other hand, is not necessarily based on a hierarchy, but rather on a distinction between the areas of application of different, in principle, equally important standards, some of which, however, can displace others under the preferential or general application.

It is also worth recalling the decision of the Criminal Chamber of the Supreme Court of Spain of January 9, 2020, in special case No. 502/19.

7. French Council of State Decree, April 21, 2021, No. 393099

French Council of State (acting in the system of the French Republic dual role - an advisory body for public administrations and the Supreme Administrative Court ), the reasons for the decision on the collection of data by mobile operators indicated that the French Constitution remains superior to European law. The decision was issued as a result of the Council's questioning of the CJEU judgment, in which the Court referred to some rights resulting from the Charter of Fundamental Rights of the European Union, such as the right to privacy, freedom or protection of personal data.

Council of State advises that the French Constitution remains the supreme rule of domestic law. Under art. 88-1 of the French Constitution: "The Republic participates in a European Union made up of States which have voluntarily agreed to jointly exercise some of their powers under the Treaties". According to the Council, while confirming the existence of the European Union legal order integrated with the internal legal order, Article 88-1 confirms the positioning of the Constitution in the first place[69]. On the other hand, it is for the administrative judge to adopt the interpretation most consistent with constitutional requirements from the content of the CJEU ruling on obligations arising from EU law.

8. Judgment of the Romanian Constitutional Court of June 8, 2021, file ref. 390/2021

Romanian Constitutional Court in response to the CJEU judgment[70], which made it possible for local courts to ignore the Romanian Constitution in the event of a conflict with EU law (the case concerned the reform of the judiciary), indicated that the constitutional law retains its hierarchical superior position, and the domestic court has no power to analyze the conformity of a provision recognized as constitutional by a judgment of the Constitutional Tribunal, with the provisions of European law[71]. Moreover, the Romanian Constitutional Tribunal found that the CJEU acted outside the competencies granted to the European Union. The ruling also indicated that art. 148 of the Constitution of Romania does not grant the primacy of EU law over the Constitution of Romania[72]and that, according to this article, Romania may, to a certain extent, based on the principle of constitutional identity, adopt a legal act that is contrary to the obligations of a Member State of the European Union.

Authors:

Adv. Tomasz Chudzinski

Adv. Joanna Modrzewska

Przemysław Pietrzak

Weronika Przebierała

Anna Wawrzyniak