14 März 2023

The battered legal community: Why the crisis over the primacy of European law can only be solved politically

By Alexander Thiele
Statue of Justice
“It will hardly be possible to resolve this crisis at a legal level. But ultimately, there is more than legal primacy at stake in the dispute with Poland anyway.”

In a supranational alliance of 27 member states, integration crises and setbacks are just as expectable as they are not, in principle, threatening. In retrospect, the European Union has emerged strengthened from many such crises. It would be rather surprising if fundamental issues of European integration were always resolved harmoniously and without major conflicts.

So while one might wish for more unity here and there – on the whole, the European Union serves its purpose precisely by providing institutionalised forums to resolve such conflicts peacefully. Those who, like Emmanuel Macron in his Sorbonne speech, compare such debates to a “civil war” are therefore wrong: democracy must not be confused with the absence of discursive quarrels.

A fundamental principle of European integration

With the primacy of European law, however, these disputes in recent years have repeatedly affected a fundamental principle of European integration, which has made a central contribution to the European Union’s success as a “legal community”, or in fact was the basis for it in the first place. The Polish and Hungarian governments have not felt bound by common decisions, have ignored specific rulings of the European Court of Justice (ECJ), and sometimes even financial sanctions have not been enough to bring them to relent. The underlying conflict over fundamental values of the European Union, especially the rule of law, seems to remain deadlocked, especially as the Commission does not always cut a good figure here.

The German Federal Constitutional Court (FCC) – of all institutions – in May 2020, and then the Polish Constitutional Court in late 2021 further fuelled this conflict by not only setting theoretical national limits to the primacy of EU law, but also giving them practical effect for the first time, albeit in very different ways. Why is this development so threatening for European integration? And how can the “crisis of primacy” be overcome in the medium to long term?

The question of primacy has no solution in theory …

The primacy of European law is not founded on an explicit norm in primary law, but is essentially based on two landmark rulings from the 1960s (here and here), in which the ECJ detached the European Union from its roots in international law and pointed the way to supranational integration. The ECJ’s initial question in this process was how a common market should function if each member state were able to unilaterally determine its scope by supplanting European requirements through its own national law. The ECJ’s answer was clear: not at all. As a consequence, from a European perspective, the integration project presupposes that European law takes precedence over the law of the member states and that the ECJ is the last instance to decide on the content and scope of European law.

It is unsurprising that this answer did not meet with undivided approval among the highest courts of the member states. The FCC was quick to accept the primacy of simple law, but made reservations as far as the German Basic Law was concerned. This was based on the notion, accurate from a constitutional law perspective, that the competences of the European Union had been transferred to it by the member states. Therefore, only the member states – i.e., their highest courts and not the ECJ – could ultimately decide on the scope of this transfer.

... but can be managed in practice through cooperation

From a legal point of view, both perspectives are just as plausible as they are incompatible. Nevertheless, this theoretical conflict has not affected everyday legal life in practice. In the legal systems of the member states, primacy is a living and successful practice and thus a guarantor of successful integration – it is this practical primacy that makes the EU what it is.

This state of affairs depends, of course, on the fact that the question of primacy is not conclusively decided in one direction or the other. The theoretical conflict will not take effect in practice as long as the question of primacy is kept in abeyance by all participants. This means that neither side should try to resolve the conflict in its own interest without necessity. The point is to cooperate without insisting.

With the PSPP ruling, the FCC sought open conflict

This brings us to the Federal Constitutional Court. In its PSPP ruling of 5 May 2020, it left this path of cooperation for the first time and explicitly declared that the actions of the European Central Bank (ECB) and the ECJ had gone beyond their competences (“ultra vires”), thus refusing to accept the European claim to primacy in a specific case. The conflict thus broke out openly for the first time, which inevitably caused a considerable tremor throughout the EU – what would now happen to primacy and thus integration? The ECJ would hardly be able to accept that.

Now one might argue: What is the value of constitutional reservations if they cannot be activated? Where the order of competences is undermined by the ECJ, the FCC must be able to intervene – irrespective of how this may look to the outside world or of what other consequences it may entail for integration. Those who consider the reservations to be correct in principle will have to agree. But precisely because the Europe-wide effects can be so serious and because such a decision attacks the very foundation of the European legal community, one will also have to demand that the reservations are only activated in a clear-cut case. That was not the situation here.

The FCC’s allegation was not justified

The FCC has always emphasised that the activation of reservations may only take place under narrow conditions. In order to not be bound by the ECJ’s ruling in this specific case – which had declared the ECB’s actions to be lawful –, the FCC had to consider this ruling as no longer justifiable and thus arbitrary from a methodical point of view. This is a harsh allegation to make against a court of 15 renowned judges, and it was indeed not justified in this case (see also here and here).

Because the ruling of the ECJ had of course been analysed in legal scholarship beforehand and was considered convincing by a considerable part of monetary law experts. This alone speaks against an arbitrary approach by the ECJ. But even the critics of the ECJ were far from accusing it of methodological incompetence before the FCC handed down its ruling.

The ECJ chose a different, more restrained path than the FCC with regard to the density of control to be applied. However, this was justified, or could be justified, by the unique character of the ECB’s mandate and position. In the area of monetary policy, courts generally find it difficult to exercise control, and a uniform methodological approach has not yet been established. After all, the ECJ examined the question of the proportionality of the ECB’s actions in no less than 29 paragraphs – can this really be seen as inadequate as the FCC accused its colleagues of being?

Not a good occasion to pose the question of sovereignty

The highest German court also criticised the ECJ for not having adequately scrutinised the effects of the purchase programmes on the economy. However, there are again good reasons for such restraint (see here again). A central bank is supposed to pursue price stability without regard to the economic effects, which is one of the reasons why it has been released into independence. One may consider this inappropriate, but it certainly does not make such a consideration arbitrary.

In other words: This case, of all cases, offered no sensible occasion to give a definite answer to the deliberately unresolved question of sovereignty. As could be expected, the immediate consequences of the FCC’s decision were relatively modest. The ECB added a few considerations on proportionality, but otherwise stuck to all its purchase programs. So causa finita, then? Unfortunately not.

Major damage to European integration

Because a major damage to European integration could not be avoided. As expected, the ruling fuelled anti-ECJ efforts in other member states, especially in Poland and Hungary, which had already been at odds with the primacy of European law before. Now these governments could also refer to the renowned FCC to support their criticism of the EU. The fact that the FCC recognised European primacy in principle and only questioned it in individual cases were dogmatic details that quickly fell victim to the politically heated atmosphere.

The Polish Constitutional Court was thus able to ennoble its decision of 7 October 2021 with the Karlsruhe dictum, at least in appearance. In this decision, it declared the ECJ’s requirements with regard to the organisation of national courts as unconstitutional. On closer examination, however, it is hardly possible to seriously liken the two decisions to each other – and the FCC must be defended in this respect (see also here): While the FCC merely denounced a specific practice of the ECB, the Polish court ruled several provisions of the EU treaties to be unconstitutional. No constitutional court had ever gone that far.

The Polish Constitutional Court questions primacy as a whole

Moreover, the Polish Constitutional Court fundamentally questioned the primacy of European law with regard to the Polish constitution, did not link its decision to any established case law on reservation, and clearly opposed any control by the ECJ. While the formal dispute in the FCC case could be settled quickly, in Poland it has ever since become unclear how the primacy of European law in practice can continue at all.

As a result, both rulings were about the primacy of European law, but the Polish one has a completely different quality than that of the FCC. Nevertheless, the Karlsruhe ruling’s signalling effect on other constitutional courts was both unnecessary and frustrating.

Primacy needs legitimacy

How to move forward from here? The first demand is obvious: The FCC should return to a more cooperative attitude and not seek open confrontation with the ECJ without necessity. After all, this is the path it seems to have taken with its decision on the Covid-19 recovery funds. Despite obvious legal bellyache, it refrained from raising the ultra-vires allegation again. However, one cannot expect such a retraction from the Polish Constitutional Court in its current precarious composition. Therefore, it will hardly be possible to completely resolve this crisis at a legal level.

But ultimately there is more at stake in the dispute with Poland (and Hungary) than just the question of legal primacy anyway. It is about fundamental conflicts over the meaning, purpose and scope of European integration, which can only be resolved politically. For this very reason, the European Union would make things too easy for itself if it were to place the blame for this misery solely on the countries concerned or on the two courts. After all, beyond ideological hardening, these developments also express a certain unease about the state of European integration as a whole, which should not be lightly brushed aside.

The primacy of European law, which is so important, can only be effective in a framework in which the European Union as an organisation of political governance is accepted by the member states. The more the EU power encroaches into areas that are politically controversial and where member states are not ready to abide by European norms, the less this will be the case.

Maximise the joint legitimacy of the EU and member states

In this respect, the European Union, together with the member states, is called upon to think about how it may increase this basic acceptance in all member states in the medium to long term. So far, the finality debate – as was also shown by the Conference on the Future of Europe that concluded last year – still follows too much of a functional integration philosophy, according to which every European competence is a good competence. It is hardly surprising that younger member states in particular find little meaning in this idealisation of integration.

It is therefore not only a matter of persuading Poland and Hungary to adhere to fundamental values, but also of making the European organisation itself contribute to ensure that this can continue to be achieved in all member states. The medium-term goal would then not be the merger of the member states into a European superstate, but the maximisation of the joint legitimacy of the member states and the European Union. If this succeeds, the primacy of European law could once again be fully effective and the European legal community could get off with only a few scratches.

Alexander Thiele is Professor for State Theory and Public Law, especially Constitutional and European Law at the university faculty of law of the BSP Business and Law School in Berlin.

This contribution is part of the thematic forum “Supranational governance between diplomacy and democracy – current debates on EU reform”, published in cooperation with the online magazine Regierungsforschung.de.

Translation: Yannik Uhlenkotte.
Picture: Justice statue: Mylius [GFDL 1.2 or FAL], cropped by Andrew Sherman, via Wikimedia Commons; portrait Alexander Thiele: Bogdan Hinrichs [all rights reserved]; EU flag: Arno Mikkor (EU2017EE) [CC BY 2.0], via Flickr.

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