The principle of the primacy of EU law soon in the Treaties?

Adobe Stock

- The Committee on Legal Affairs and the Committee on Constitutional Affairs of the European Parliament have, by an overwhelming majority, adopted a Report on the primacy of Community law over the national laws of the Member States.

- The report contains recommendations recommending, inter alia, that the principle should be enshrined in the EU treaties in order to give it greater legal force.

- In this way, the principle of the primacy of Community law would gain particular force, placing EU law above even the basic laws of the Member States.

The European Parliament's Committee on Legal Affairs (JURI) and Committee on Constitutional Affairs (AFCO) adopted by 30 votes in favour and 9 against a Report on the primacy of Community law over the law of the Member States, published in July this year.

The report was prepared by two MEPs, representing the Estonian Liberals, Yane Toom (Renew Europe), and the Maltese Christian Democrat representative, Cyrus Engerer (European People's Party), who were tasked with drafting a document on the principle of the primacy of EU law in September 2022.

In the Report, the authors stress the importance of the principle of primacy of Community law for the functioning of the European Union.  Indeed, since its establishment in the Costa v E.N.E.L judgment of 1964 by the European Court of Justice, it has played an important role in the process of European integration, driven by the need for effective and uniform application of European Union law. The authors of the document in question also emphasise that, as a result of subsequent case law of the European Court of Justice, it has been clarified that European Union law takes precedence over national laws of any rank, and thus also over the constitutions of the Member States. It is worth noting, however, that there are numerous rulings by constitutional courts, e.g. Italy, in which national judges have severely restricted the rules for the application of the principle of primacy, particularly in relation to the constitution. In this context, it is worth recalling, for example, the verdict of the Constitutional Tribunal from 2004, in which it was clearly stated that the Constitution remains - by virtue of its special power - the supreme law of the Republic of Poland in relation to all international agreements binding the Republic of Poland (and thus also the treaties constituting the primary law of the European Union).

The authors of this document also emphasise that subsequent case law of the European Court of Justice has clarified that European Union law takes precedence over national law at all levels, and thus also over the constitutions of the Member States.

Member States' constitutions.It is worth noting, however, that there are a number of judgments by constitutional courts, e.g. Italy, in which national judges have strongly restricted the rules on the application of the principle of primacy, particularly in relation to the constitution. In this context, it is worth recalling, for example, the verdict of the Constitutional Tribunal of 2004, in which it was clearly stated that the Constitution remains - by virtue of its special power - the supreme law of the Republic of Poland in relation to all international agreements binding the Republic of Poland (and thus also the treaties constituting the primary law of the European Union).

The Report goes on to state that the principle of the primacy of Community law is not enshrined in the primary law of the European Union (the Treaties), relying primarily on the case law of the European Court of Justice. This principle is expressed in Declaration No. 17 to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, which, however, as the authors of the Report themselves admit, does not give it the appropriate legal force (as it would have had it been included in the Treaties).

The authors of the Report consider that in order to ensure respect for the principle of primacy of Community law, it is necessary to change its legal status. The codification of this principle in primary law (the Treaties) could therefore contribute to clarifying the relationship between the European Union and national legal orders and mitigate the conflicts that arise in this regard. In other words, the formulation and inclusion of the principle of primacy of Community law in primary law would raise its legal standing, as it would be expressed expressis verbis in the Treaties.

The authors of the Report acknowledge that the principle of primacy of Community law suffers from certain limitations, which is apparent from the case law of the constitutional courts of the Member States, citing Germany, Denmark, Hungary, Poland and Romania as examples.

In the light of the above-mentioned considerations, the authors of the Report conclude by stating, inter alia, that the principle of primacy is always binding on all Member State authorities and that the implementing power of EU law cannot vary from one Member State to another. In addition, the Commission should closely monitor the judgments of national courts with regard to the primacy of EU law and initiate infringement proceedings under Article 258 TFEU in response to judgments of national constitutional courts challenging this principle. It also appears that the principle of the primacy of Community law should be incorporated into the EU Treaties and that it is for the CJEU to define the scope of the principle, given its exclusive competence to give the final interpretation of EU law. At the same time, it states that this issue cannot be left to national courts on the basis of their interpretation of EU law or national laws. There is also the thesis that challenging CJEU judgments on the basis of national constitutional objections regarding respect for EU competence or national constitutional identity actually undermines the authority of the CJEU.

In this context, the European Commission is thus placed in the role of guardian of the Treaties, with the task of ruthlessly enforcing violations of the principle of primacy when this principle is included in the primary law of the European Union.  

The recommendations contained in the Report arouse far-reaching astonishment, as the fundamental laws of the Member States of the European Union are, as a rule, the supreme law of these states, standing higher in the hierarchy of normative acts than international agreements, which also applies to the treaties that constitute the basis for the functioning of the European Union. In this context, we should bear in mind the jurisprudence of the Constitutional Tribunal of the Republic of Poland, which has clearly emphasised that in the light of the 1997 Constitution of the Republic of Poland, it is the Constitution that is the supreme law, which also applies to EU treaties.

21 November this year. The Report will be put to a vote in the European Parliament. 

Link to download the Report: Card print - DORIE - European Commission (europa.eu)

Patryk Ignaszczak - Analyst at the International Law Centre of the Ordo Iuris Institute