Introduction
The principle of the supremacy of European Union (EU) law over national law, including constitutional provisions, is a cornerstone of the EU legal order as articulated by the Court of Justice of the European Union (CJEU). Established in seminal cases like Costa v ENEL (1964), this doctrine asserts that EU law takes precedence in cases of conflict, ensuring the uniform application of EU rules across Member States. However, this absolute view of supremacy has not been universally accepted by national constitutional courts, notably in countries like Germany and Italy, which adopt a more conditional approach. These courts have imposed limits on EU law supremacy to safeguard national constitutional identity and fundamental rights. This essay explores the specific limitations placed by national courts on the doctrine of supremacy and evaluates whether they are justified in doing so. It argues that while these limits can be seen as a necessary check on EU overreach, they also pose challenges to the coherence of the EU legal system.
The CJEU’s Doctrine of Supremacy
The CJEU has consistently upheld the supremacy of EU law as a fundamental principle to ensure the effectiveness and unity of the EU legal framework. In Costa v ENEL, the Court declared that EU law constitutes an independent source of law that cannot be overridden by domestic provisions, irrespective of their status in national hierarchies (CJEU, 1964). This was further reinforced in Simmenthal (1978), where the CJEU mandated national courts to disapply conflicting national laws, even if they are constitutional in nature. The rationale behind this absolute supremacy lies in the necessity to prevent Member States from undermining EU objectives through divergent national rules. Indeed, the CJEU views supremacy as non-negotiable for maintaining the integrity of the internal market and the uniform application of rights and obligations across the Union (Craig and de Búrca, 2020).
However, this uncompromising stance has faced resistance from national constitutional courts, which often prioritise the protection of national sovereignty and fundamental rights over the CJEU’s monist approach. This tension has led to the emergence of conditional acceptance of supremacy, where national courts assert their authority to review and limit the application of EU law under specific circumstances.
Limitations Imposed by National Constitutional Courts
National constitutional courts, particularly in Germany and Italy, have developed significant doctrines to limit the absolute supremacy of EU law. The German Federal Constitutional Court (FCC) has been at the forefront of this resistance, articulating the concept of constitutional identity. In its Solange line of cases, starting with Solange I (1974), the FCC ruled that it would review EU law to ensure compatibility with fundamental rights enshrined in the German Basic Law, asserting that EU law could not be applied if it violated these rights. Although Solange II (1986) softened this stance by presuming EU law’s compliance with fundamental rights as long as the EU maintained adequate protections, the FCC retained the ultimate authority to intervene. More recently, in its 2020 ruling on the European Central Bank’s Public Sector Purchase Programme, the FCC challenged a CJEU decision by declaring it ultra vires, arguing that the EU exceeded its competences—a direct affront to the CJEU’s supremacy (FCC, 2020; Weiler, 2020).
Similarly, the Italian Constitutional Court (ICC) has developed a doctrine of “counter-limits” (controlimiti), as seen in the Frontini (1973) and Granital (1984) cases. The ICC accepts EU law supremacy but reserves the right to disapply EU rules if they conflict with the core principles of the Italian Constitution, such as human dignity or democratic sovereignty. This conditional acceptance reflects a balancing act between EU integration and the protection of national constitutional values (Cartabia, 1998).
Other Member States, such as Poland and Hungary, have also shown resistance, though often on more politically charged grounds. For instance, Poland’s Constitutional Tribunal ruled in 2021 that certain EU Treaty provisions were incompatible with the Polish Constitution, further illustrating a trend of conditional supremacy (Polish Constitutional Tribunal, 2021). These cases highlight a broader tension between national sovereignty and EU integration, where constitutional courts act as guardians of domestic legal orders.
Are National Courts Right to Impose Limits?
The question of whether national courts are justified in limiting EU law supremacy is complex and hinges on competing principles: the integrity of the EU legal order versus the protection of national constitutional identities. On one hand, the conditional approach adopted by national courts can be seen as a legitimate defence of democracy and fundamental rights. The German FCC’s insistence on protecting constitutional identity, for instance, underscores the importance of ensuring that EU law does not erode the democratic legitimacy derived from national constitutions. Arguably, without such limits, there is a risk of EU institutions overreaching into areas of national sensitivity, potentially alienating citizens and undermining trust in the Union (Bogdandy and Schill, 2011).
On the other hand, these limitations pose significant challenges to the EU’s legal coherence. The CJEU’s absolute supremacy is designed to prevent fragmentation and ensure that EU law operates uniformly across Member States. When national courts, such as the FCC or the Polish Constitutional Tribunal, challenge CJEU rulings or declare EU law inapplicable, they create legal uncertainty and risk undermining the principle of mutual trust between Member States. This can have practical implications, for instance, by disrupting the functioning of the internal market or the enforcement of EU-derived rights (Craig and de Búrca, 2020). Furthermore, conditional supremacy may encourage other Member States to adopt similar stances, potentially leading to a patchwork of compliance that weakens EU integration.
Balancing these perspectives, it appears that while national courts have valid reasons to impose limits—particularly to safeguard fundamental rights and democratic principles—their approach must be exercised cautiously. A constructive dialogue between the CJEU and national courts, as seen in the evolving Solange framework, offers a more sustainable path than outright defiance. This approach allows national courts to assert their concerns without entirely rejecting the primacy of EU law.
Conclusion
In conclusion, the CJEU’s doctrine of absolute supremacy over national law, including constitutional provisions, is a foundational element of the EU legal order, ensuring uniformity and effectiveness. However, national constitutional courts in countries like Germany and Italy have imposed significant limits through doctrines such as constitutional identity and counter-limits, prioritising the protection of national values and rights. While these limitations can be justified as a necessary check on EU overreach, they also threaten the coherence of the EU legal system by introducing fragmentation and uncertainty. Therefore, although national courts are arguably right to assert their protective role, their resistance must be tempered by a commitment to judicial dialogue and cooperation with the CJEU. The ongoing tension between national and EU legal orders highlights the broader challenge of balancing integration with sovereignty—a dynamic that will likely continue to shape the future of the European project.
References
- Bogdandy, A. von and Schill, S. (2011) Overcoming Absolute Primacy: Respect for National Identity under the Lisbon Treaty. Common Market Law Review, 48(5), pp. 1417-1453.
- Cartabia, M. (1998) The Italian Constitutional Court and the Relationship Between the Italian Legal System and the European Union. In: Slaughter, A.-M., Stone Sweet, A. and Weiler, J.H.H. (eds.) The European Court and National Courts—Doctrine and Jurisprudence. Hart Publishing.
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Federal Constitutional Court (FCC) (2020) Judgment of 5 May 2020, 2 BvR 859/15. Press Release No. 32/2020.
- Polish Constitutional Tribunal (2021) Judgment of 7 October 2021, K 3/21. Official Press Release.
- Weiler, J.H.H. (2020) The German Federal Constitutional Court and the PSPP Judgment: A Break with European Law? European Constitutional Law Review, 16(4), pp. 595-610.
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