Introduction
The principle of the supremacy of European Union (EU) law, as established by the Court of Justice of the European Union (CJEU), asserts that EU law takes precedence over any conflicting national law, including constitutional provisions. This doctrine, first articulated in the landmark case of Costa v ENEL (1964), forms a cornerstone of EU legal integration. However, several national constitutional courts have adopted a more conditional stance on this supremacy, imposing limits to protect national sovereignty and constitutional identity. This essay examines the constraints placed by national courts, particularly in Germany and Italy, on the supremacy of EU law and evaluates whether their approaches are justified. It argues that while these limitations reflect legitimate concerns about democratic legitimacy and fundamental rights, they also risk undermining the uniform application of EU law.
The CJEU’s Doctrine of Supremacy
The CJEU has consistently upheld the absolute supremacy of EU law over national law, including constitutional norms. In Costa v ENEL, the Court declared that EU law constitutes an independent legal order, binding on Member States and requiring national courts to set aside any conflicting domestic provisions (Flaminio Costa v ENEL, 1964). This was reaffirmed in Simmenthal (1978), where the CJEU mandated that national judges must disapply national laws that conflict with EU law, without awaiting legislative or constitutional amendment. The rationale is to ensure the uniform application and effectiveness of EU law across Member States, preventing fragmentation of the legal order. However, this uncompromising stance has often clashed with national perspectives, particularly where constitutional norms embody core democratic values.
National Limits on Supremacy
National constitutional courts, notably in Germany and Italy, have imposed significant limits on the supremacy of EU law, prioritising national constitutional identity. The German Federal Constitutional Court (FCC) has been particularly vocal, as seen in its Solange line of jurisprudence. In Solange I (1974), the FCC asserted that it would review EU law for compatibility with fundamental rights guaranteed by the German Basic Law, unless the EU provided equivalent protection. While Solange II (1986) softened this stance, acknowledging the EU’s improving rights framework, the FCC retained a residual right to intervene. More recently, in its 2020 ruling on the European Central Bank’s bond-buying programme, the FCC challenged the CJEU’s authority by declaring a CJEU judgment “ultra vires” and non-binding in Germany, prioritising national constitutional limits over EU integration (BVerfG, 2020).
Similarly, the Italian Constitutional Court has asserted reservations. In Frontini (1973) and subsequent cases, it held that EU law supremacy is conditional on compliance with fundamental constitutional principles, such as individual rights. These national positions reflect a broader tension between EU integration and the protection of domestic constitutional orders, raising questions about the balance of power in a multi-level legal system.
Evaluation: Are National Courts Justified?
Arguably, national courts are right to impose limits on EU law supremacy to safeguard constitutional identity and democratic accountability. Constitutional norms often represent deeply rooted societal values and fundamental rights, which may not always align with EU objectives. The German FCC’s insistence on fundamental rights protection, for instance, addresses a legitimate concern that EU institutions may prioritise economic integration over individual liberties. Furthermore, national courts act as guardians of democratic legitimacy, ensuring that EU actions do not overstep the mandate conferred by Member States.
However, these conditional approaches risk undermining the coherence of the EU legal order. If every Member State prioritises its constitutional norms over EU law, the principle of uniformity could be eroded, potentially leading to legal fragmentation. The CJEU’s uncompromising stance, while rigid, aims to prevent such outcomes. A middle ground, perhaps through enhanced dialogue between national and EU courts, as seen in mechanisms like the preliminary reference procedure, may offer a more balanced solution.
Conclusion
In summary, the CJEU’s doctrine of absolute supremacy of EU law over national law, including constitutional provisions, ensures uniformity but often conflicts with national perspectives. Courts in Germany and Italy have placed conditional limits on this supremacy to protect fundamental rights and constitutional identity. While these restrictions are arguably justified to uphold democratic values, they pose a risk to the EU’s legal cohesion. The tension highlights the need for ongoing dialogue between national and EU institutions to reconcile these competing priorities. Ultimately, striking a balance remains critical for the sustainability of the EU legal order and the protection of national sovereignty.
References
- BVerfG (2020) Judgment of 5 May 2020, 2 BvR 859/15, German Federal Constitutional Court.
- Craig, P. and de Búrca, G. (2020) EU Law: Text, Cases, and Materials. 7th ed. Oxford University Press.
- Flaminio Costa v ENEL (1964) Case 6/64, ECR 585, Court of Justice of the European Union.
- Simmenthal (1978) Case 106/77, ECR 629, Court of Justice of the European Union.
