What is the primacy of European law?
The flags of Poland and the European Union tied together at a rally in Rzeszow, Poland on October 10, 2021, after Polish courts ruled on the primacy of the Constitution over European Union law , thus calling into question a key principle of European construction.
Agencja Gazeta via REUTERS - PATRYK OGORZALEK
Text by: Patricia Blettery Follow
7 mins
After the tragic events of World War II, European countries wanted to unite to establish lasting peace.
But each already had its rules of law, its laws, its values.
It was therefore necessary to agree on a common operation.
Little by little, the principle of the primacy of European Union law over national law has emerged.
A principle sometimes called into question, as is currently the case in Poland.
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Member States are required to apply European Union law, i.e. to comply with European treaties, regulations, directives or decisions of the Court of Justice of the European Union.
This implies that if a national law goes against one of these European texts, the Member State will have to apply European law and if there is a dispute, citizens can go to court and ask the country to submit to European rule.
Gradual recognition
This principle of the primacy of European rule over national law was not decided overnight.
It gradually imposed itself, according to court decisions, when disputes were submitted to the judge.
It is not included in any European treaty, except in an annexed declaration of the 2007 Lisbon Treaty.
As early as 1958, France recognized this principle in article 55 of the Constitution. But justice will be called on many times on this subject and things will be clearer from 1989, with a judgment issued by the Council of State which definitively establishes the superiority of the international standard over the law (Nicolo judgment - 20 October 1989). However, so that the constitutional text can remain at the top of the internal legal order, when European commitments contain a clause contrary to the Constitution, the authorization to ratify them calls for a constitutional revision. This was the case for the Maastricht Treaty in 1992.
In Germany, the Fundamental Law, the equivalent of the French Constitution, and indeed affirms this superiority of European law which allows the German Federation to "
transfer, by legislative means, rights of sovereignty to international institutions
".
Respect for the rule of law to guarantee democracy
As the world becomes globalized, the rule of law (which binds the citizen) is everywhere. It can be national, European, international, and that complicates things. Among the rules put in place by the European Union, not all have the same value, this is called the hierarchy of standards. Each lower rule must respect the one higher than it. At the top of the pyramid, the treaties. Among them are the founding treaty of the European Union (1), the accession treaties, the Charter of Fundamental Rights of the EU as well as the general principles of law established by the Court of Justice of the EU. They apply directly to the countries of the European Union as well as to individuals, regardless of the existence of a translation into national law.
Then come the international agreements concluded between the EU and third countries or international organizations.
They are an integral part of EU legislation (for example:
Cotonou Agreements between the EU and the countries of Africa, the Caribbean and the Pacific
).
These acts have an equivalent value to the treaties and prevail over the legislative texts adopted by the European institutions (regulations, directives, court decisions).
An omnipotence of the European Union?
The European Union acts only within the limits of the powers that the Member States have assigned to it in the Treaties. This limits things considerably, as there are few exclusive skills. And in these cases, the Member States must decide together, most often via the Council of the European Union (customs union, competition, monetary policy in the euro zone, common commercial policy for example). There are six exclusive skills. (2)
The shared competences concern the areas for which legislating and adopting binding acts can be done both at European level and by each of the Member States, independently of the others.
This also means that if the EU has not legislated in this sector, countries can do so, for example in the areas of the environment, social policy, agriculture.
Poland in conflict with this founding principle of the European Union
On October 7, 2021, Poland's highest court ruled against the absolute supremacy of European Community law.
She declared that certain articles of the EU treaty were "
incompatible
" with the Polish Constitution and called on the European institutions not to "
act beyond the scope of their competence.
".
A position which raises fears of a "Polexit", an exit of Poland from the European Union.
The dispute concerned a reform of Polish justice led by the conservative Law and Justice (PiS) party in power which provided for a disciplinary chamber, responsible for supervising the judges of the Supreme Court of the country.
The CJEU (Court of Justice of the EU) considered that the independence of the judiciary and the separation of powers were no longer respected in Poland.
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To read also: Poland: the historic decision of the Constitutional Court raises the specter of a "Polexit"
By refusing to recognize this founding principle of the European Union, Poland once again raises the question of the loss of state sovereignty to the benefit of the EU, a veritable sea serpent, in a context of contestation of European authority (Brexit). At the beginning of September, Michel Barnier, former commissioner and negotiator of the United Kingdom's exit from the European Union, presidential candidate in 2022 in France, went in this direction by evoking his plan to take control in terms of politics. migration: "
We cannot do all this without having regained our legal sovereignty, by being permanently threatened with a judgment or a conviction by the European Court of Justice or the Convention on Human Rights, or 'an interpretation of our own judicial institution
», He said to the parliamentary days of the Republicans in Nîmes.
A debate on European values
In Hungary, a law wanted by the power in place of Viktor Orban prohibits the “promotion” of homosexuality among minors, in books or television series.
Seventeen EU member countries, including France, Germany, Spain and Italy, called on EU representatives and UN Secretary General Antonio Guterres on the need to uphold European values.
A legal standoff, but also a political one, is underway.
From January 1 to June 30, 2022, France will hold the 13th Presidency of the Council of the European Union (PFUE) for six months. Which files will it prioritize? It is still a little too early to know. But the strengthening of the rule of law in Europe and thereby that of the independence of justice, freedom of the press, and the separation of powers undermined in Hungary and Poland could be part of it. .
(1)
The founding treaty (the first treaty) was signed in Paris on April 18, 1951 by 6 countries (the founding countries), France, Germany, Italy, the Netherlands, Belgium and Luxembourg . This treaty is called Treaty of Paris, name of the city in which it was signed. The project concluded in this agreement is to allow these 6 countries to work together in the field of Coal and Steel in order to rebuild themselves, because everything was destroyed during the war. Two other treaties are considered as founding: the Treaties of Rome (Euratom and European Economic Community) (March 25, 1957) and the Maastricht Treaty on European Union (February 7, 1992).
(2)
The exclusive competences of the European Union are the customs union, the establishment of competition rules necessary for the functioning of the internal market, monetary policy for EU countries whose currency is the euro, conservation of the biological resources of the sea within the framework of the common fisheries policy, the common commercial policy, the conclusion of international agreements under certain conditions.
Our selection of archives on the subject
To listen :
→
Europe, the solution or the problem?
→
European construction in turmoil
→
Brexit: a chance for Europe?
→
Europe: the Union in danger?
To read :
→
The construction of the European Union
→
From the Treaty of Rome to the Declaration of Rome, 60 years of European history
→
EU: 25 years ago, the Member States signed the Treaty of Maastricht
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