The alleged principle of primacy of European Union law over all laws of its Member States reads as follows: In the event of contradiction between a national provision and a EU binding instrument, no matter whether regulation, directive or decision, these latter will prevail.
Such principle, invented by the Court of Justice of the European Union in its Costa/ENEL decision of 1964, has recently been called into question by the German Federal Constitutional Court in its Weiss judgment of 5 May 2020.
We shall not delve into the facts underlying this judgment, as we have already discussed them in a previous article, but rather analyse the legal reasoning conceived by the Karlsruhe Court. We shall particularly address to what extent it considers the principle of primacy to be valid and, if so, what its scope would be for a Member State such as Germany.
Preliminary assertions of national primacy:
Already in their first legal statement regarding the admissibility of the constitutional challenge, the eight German magistrates recall that they hold a competence to verify whether the authorities of their nation “are observing the limits imposed by the Constitution with regard to Germany’s membership of the European Union“.
This reference to limits imposed by the Constitution of a Member State on what its European Union membership entails already shows that the law of the latter does not operate with primacy over the former; on the contrary, there is a national provision – in this case, the Bonn Constitution or Grundgesetz (Basic Law) of 1949 – which imposes limits that necessarily operate, i.e., in the first instance or with the quality of primacy, therefore, on behalf of national law.
In its second legal statement, the German Constitutional Court conveys a further reasoning on the principle of primacy, this time in connection with the Central Bank of the Federal Republic, the Bundesbank or Federal Bank: “(…) the Bundesbank may not participate in acts of institutions, bodies, offices or agencies of the European Union which involve acts ultra vires or violate the constitutional identity guaranteed in Article 79(3) of the Constitution“.
In other words, no German institution, including the Central Bank, can carry out acts that violate this national constitutional identity, even if they have been decided by entities belonging to the European Union in application of Union law. It follows that such law has no primacy whatsoever over a national constitutional identity, which therefore operates in the first place or with primacy.
Primacy of German law as established at national level:
Entering now into its legal reasoning on the merits, the Federal Constitutional Court develops a first consideration of what the right to vote vested with Germans implies when electing their representative members in the Bundestag, the lower chamber of the Republic set up in 1949.
The Karlsruhe judges state that this right “is not limited to a formal legitimation of power in favour of the (federal) State. The right of citizens to democratic self-determination also applies in the context of European integration. Within the scope of application of Article 23.1 of the Constitution, it protects against a manifest and structurally significant abuse of its powers by institutions, bodies, offices and agencies of the European Union. It also confers protection when the acts of institutions, bodies, offices and agencies of the European Union exceed the limits contained in the principles as proclaimed by Articles 1 and 20 of the Basic Law, which Article 79.3 of the Basic Law declares inviolable.”
We are particularly interested in this last sentence, in connection with the beginning of the argumentation. The Germans’ right to vote when electing their principal national members of Parliament protects them against acts of Union entities that might contravene provisions of two articles in their Constitution, even though such acts could be valid under European Union law.
Indeed, through the paragraph’s second sentence, the German Constitutional Court denies that the European integration of Germany shall imply the law of the Union overriding the “democratic self-determination” of German nationals, primarily manifested through their right to elect members of the Bundestag but not formally limited to that.
This is a pillar in the judgment. Even after Germany’s integration into the European Union, the main body of the legislative branch represents “democratic self-determination” on the part of its nationals; and not in a purely formal way, but also the material deployment of its competences, essentially national law, enjoys a significant pre-eminence over the product of European Union institutions, bodies, offices and agencies.
Therefore, national law manifested as the law deriving from Bundestag action does not necessarily yield to that coming from European entities. The content of the alleged primacy of European law under Costa/ENEL is thus destroyed, as well as all of its EU jurisprudential and doctrinal offspring.
Even if European entities were not abusing their remit, as the German magistrates explicitly state, there are areas of national law vested with primacy, as that is what the national constitution has established.
We shall, of course, analyse the two constitutional precepts that create such national predominance over the EU sphere. But above all, the reader should note that this primacy of national law is declared by two national instances, namely the German constituent power of the Federal Republic expressed in its Basic Law, and the constitutional jurisprudence as declared in Karlsruhe.
Primacy in favour of a significant portion of national law:
When the German Federal Constitutional Court defines the areas in which, even without abuse by EU entities, German law enjoys a primacy status over European law, it refers to two precepts in the Bonn Grundgesetz, namely Articles 1 and 20.
Article 1 briefly proclaims the respect and protection for human dignity and the recognition of human rights derived therefrom.
The implications of such a proclamation are of course very relevant, though they cannot be further developed here. However, it is indeed important to point out that thanks to the same Article’s third paragraph, the Republican constituent extends to Articles 2 to 19 the duty of conduct on behalf of the three branches of government – legislative, executive and judicial -; which actually implies the primacy of a very significant part of the German constitution over European law.
That is, on any and all matters that refer to the protection or development of any fundamental rights as provided for in the German Basic Law. The reader will grasp what this entails from an objective point of view (we shall also refer below to its subjective implications).
As long as one of the eighteen fundamental right provisions listed in this first section of the Bonn Basic Law is concerned, the German nation can invoke the primacy of its provisions over those coming from the European Union institutions dealing with the same subjects.
Free development of the personality, life and physical integrity; equality; freedom of belief, conscience, religious and ideological freedom, freedom of worship and participation in the army; freedom of speech and press, right to honour, freedom of education; protection of marriage and the family, right and duty of care and education of children; right of peaceful assembly; right of association; secrecy of communications; freedom of movement and residence; right to choose one’s profession freely; inviolability of the home; right to property and inheritance; nationality and prohibition of extradition; right of asylum; right to petition; and all matters relating to the regulation of restrictions on these fundamental rights – for each of these issues, German law takes precedence over European Union law.
As for Article 20, it briefly describes the foundations of the Federal Republic of Germany and the right of resistance, which therefore also take precedence over any legal instruments coming from the supranational Union.
This means first that the federal, democratic and social character of the Republic established in 1949 cannot be affected by any EU legal instrument. The effect on any of the rights of federal states, the regulation of any democratic elements or procedures, and the extraordinary breadth of the social sphere, all this can be considered preponderant when nationally regulated over any European consideration.
But we are not finished yet with the implications derived from the primacy of Article 20: electoral determinations and the status of the legislative, executive and judicial branches are also protected nationally against any risk of EU supremacy. It is inevitable, at this point, to recall the current dispute between the authorities in Brussels and the Polish government, regarding the structure of its judiciary.
The scope and importance of all these areas, in which, according to the decision of the Federal Constitutional Court, European law does not take precedence over German law, will not escape the reader.
However, this does not only mean that national law takes precedence over EU law in all of such areas. Furthermore, the third paragraph of Article 1 requires the legislative, executive and judicial powers of the member state to ensure that any national provision regulating the aforementioned fundamental rights is binding; from which a subjective preponderance of national bodies intervening in such regulation over EU institutions of Brussels is also derived.
Finally, if constitutional provisions are vested with primacy over any form of European law, it follows that the Constitutional Court, the body responsible for interpreting such superior precepts, should also prevail in turn over any institution, body, office or agency of the European Union, including its Court of Justice. Even so, if neither the cabinet of Mr. Scholz nor the Commission of Mrs. Von der Leyen wish to recognize it.
[To be continued]
Jorge Martinez and Miguel Toledano are advisors for the