Supremacy of European Union Law in Germany and France

European Union Law Summative Assessment

The Supremacy of European Union (EU) Law has proved to be controversial, within many of its member states. This essay will focus on how the domestic courts and legislatures within France and Germany receive the Supremacy of European Union Law.

Prior to the current constitution of France; The Constitution of the Fifth Republic which was adopted on 4 October 1958; France has had 15 written and codified constitutions[1], which have all been amended on various occasions to adapt to its society and citizens.

The French courts are divided into two hierarchies, both with their own appeal courts and final appeal, and a Constitutional Court (Conseil Constitutionnel). However the courts have had different approaches on how they deal with European Law. One of the hierarchies: ‘The Courts of Ordinary Jurisdiction’ (Cour de Cassation)  gave supremacy to European Law by creating Article 234 of the Treaty on the European Union (TEU), now known as Article 267 of the Treaty on the Functioning of the European Union (TFEU). By doing this, this allows The Court of Justice of the EU to have jurisdiction over the interpretation of French legislation treaties. This is on the basis of Article 55 of the French Constitution, which allows treaties or agreements which are approved and published by European Parliament to have dominance over national statutes[2]. An example of this is the case of Café Vabre[3]where Article 95 of the Treaty of Rome took dominance over national law; on the basis that the French Constitution itself gave priority to EU law; with Article 55.

Both hierarchies of the courts are also subject to Article 55, in the sense that they must reference Article 55 when there is a situation of compatibility between national and EU law; although the French lower courts are bound to follow the higher courts: in rare instances, do the courts reference either Article 55 or even the higher courts; this displays how reluctant French courts are to fully adapt to the supremacy of EU law. This was the issue in Garage[4], where the Court of Appeal (Cour d’Appel (Paris)) held that where national law was contrary to EU law and if the national law deals with the issue within one of its provisions, then there needs to be no further reference to a higher court, however this particular case did not show to go contrary to EU law.

France is a monist state which allows French national law and EU law to be integrated, to create unity and strengthen their relationship. Despite being a monist state, there is a lack of compatibility between the hierarchies of courts. Since both hierarchies of courts are subject to the French Constitution; there is no expressed provision within the constitution which shows the effect that international law has on their constitution. Therefore each court decides on cases within their jurisdiction as was seen in Semoules[5]– which will be later mentioned.

The second hierarchy of courts is the ‘French Public (Administrative) Courts’. The first hierarchy of courts: The Courts of Ordinary Jurisdiction, especially The French Supreme Court of Ordinary Jurisdiction (Cour de Cassation) – the highest of the ordinary judicial Courts – had no problem adopting to EU law and its supremacy, as they even went further and found for EU law supremacy without direct reference to Article 55, and found for the basis of the inherent supremacy. In contrast, the second hierarchy of courts: the French Public (Administrative) Courts, specifically The Supreme Administrative Court (Conseil d’Etat) have occasionally completely denied the supremacy of EU law, or the need to make reference to the Court of Justice; however they did this by heavily relying on the French principle of law: acte clair; which is the principle that where a provision of law is clear, there is no need to refer to a higher court, and to simply apply the provision.

The leading authority on EU law having supremacy over French national law is case of Bendit[6]. This case involved the issue of whether the Free Movement Directive 64/221 was breached, however this was previously declared directly affected in Van Duyn[7]. The Supreme Administrative Court held that individuals could not directly rely on directives to challenge an administrative statute, and declined to follow previous Court of Justice rulings or to make a reference itself. This case displays how reluctant the courts are to make reference to EU law. This decision was followed in the case of Semoules.

The Courts of Ordinary Jurisdiction accepted the supremacy of EU law in 1975, however the French Public (Administrative) Courts had difficulties to accept the supremacy of EU law. First it was an issue of jurisdiction found in the case of Semoules, where the French Public (Administrative) Courts held that since it had no jurisdiction to review French statutes, it could not find any national legislation to be incompatible with EU law, and could not give any priority to EU law over national law. These matters were for the Constitutional Court, who have such authority.

However in 1975, with the case of Café Vabre[8] which was mentioned earlier, The French Supreme Court of Ordinary Jurisdiction departed from the prior case of Semoules and held that where there is conflict between national and EU law, the Constitution itself (Article 55) gives priority to EU law.

Eventually by 1990, the French Public (Administrative) Courts eventually abandoned their distinction and accepted only the doctrine in 1990 with the case of Nicolo[9]. The Supreme Administrative Court decided that the European Economic Communities Treaty was seen as taking authority over French national law, heavily on the basis of Article 55. Also, The Supreme Administrative Court in its view to give supremacy to EU law was evidently found to follow case law in other member states who were also accepting the supremacy of EU law, so it can be seen as other member states persuading French courts to follow EU law.

“The Court of Justice´s view that national law can never take precedence over directly effective EU law on account of a transfer of sovereignty by the Member States and “the spirit of the EU Treaty” is not unconditionally accepted by the courts of Member States. In France, the main obstacle to the recognition of supremacy of EU law was the jurisdictional limitation of the French courts.”[10] This represents the view that not all member states within the EU accept the belief that national law is incapable of having priority over EU law; however in France it was the French courts who had jurisdictional limitations on matters that only the Constitutional Courts could consider. Although not all national courts of the member states completely accept supremacy, in a legal sense the member states have signed treaties which seed national membership and sovereignty in certain areas. So from a legal standpoint, member states have given their sovereignty away.

Further, in the case of Boisdet[11] the Supreme Administrative Court held that EU law would be given supremacy over national law as European Communities Directives were given dominance over French administrative statutes even though the directives were older than the French statute.

Although the French Public (Administrative) Courts have accepted the doctrine of EU law supremacy, the lack of willingness from the courts to give reference to EU law still shows that they are not completely accepting supremacy; and this results to issues with the French Constitution. When the Lisbon Treaty was in the making in 2007, it was questioned whether France needed a ‘constitutional review’, however this did not occur.

The supremacy of the French national law is implicitly mentioned in its own constitution with regards to Article 55, and other pieces of legislature such as Article 267 of TFEU; however the EU is now referred to in a new Article 88 of the French constitution which was introduced as a result of the Constitutional Court displaying that the new policy areas under the Maastricht Treaty would not be compatible with the French constitution; “[a]s a result of the change to Article 88 of the Constitution, the French Constitutional Court has declared[12] … that it will no longer review [EU law] in the light of the Constitution, save in relation to [those protecting fundamental rights], thus retaining, in principle, a distinct reservation on its recognition of supremacy in a way similar to the German Federal Constitutional Court”[13]. This is similar to the acte clair principle as it upholds the recognition of national supremacy. However the national supremacy is limited when the courts must refer to the Court of Justice of the EU when deciding on international matters.

Although the constitution allows EU law to be supreme, “in cases where EU law does not offer the same level of protection, … [i]t is up to the [French] administrative judge to directly examine the constitutionality … of EU law.”[14] Despite the constitution allowing supremacy; it is up to the French judges who must examine whether the EU law is protecting rights under the French constitution and the French courts have historically disregarded EU law when it was inconsistent with the French constitution.

To summarise, the supremacy of EU law in France heavily comes from its own constitution, which also means that if the French wish to disregard any EU law then they will be going against their own constitution. The Courts of Ordinary Jurisdiction have accepted EU law supremacy, however the French Public (Administrative) Courts still seem to be reluctant to referring Article 55; despite the fact that they have given priority to EU law over national law occasionally.

Moreover, Germany has also received EU law in a different manner compared to France.

Unlike France, Germany has adopted the dualist approach when deciding on how they receive international law. This requires a German statute to incorporate the EU law to have direct enforceability in Germany. Once it has been incorporated, the EU law would have the same effect as any other Acts of German Parliament (Gesetze).

Article 24 and 25 of The Basic Law of the Federal Republic of Germany; German Constitution (Grundgesetz) (GG) are the articles which are the basis for Germany’s cooperation with international associations. Article 24 GG allows membership of international associations and a transfer of powers to them; and this was used when Germany initiated their membership in the EU. Article 25 GG represents that the general rules of public international law must be regarded in Germany; however does not mention how international law effects the German constitution; similar to France.

Germany had later added Article 23 GG (the Europa Artikel) to extend the scope of European integration, particularly the new areas which were proposed in the Maastricht Treaty and to take into account any possible breaches in the German constitution. Article 23 GG extended what was mentioned in Article 24 GG as now when sovereign powers are transferred to the EU, they must have the approval of both Houses of the German Parliament; Bundestag and Bundesrat. This displays that there is not an absolute transfer of powers, and the powers are not taken by the EU; but rather transferred over with German Parliament approval – this is seen as Germany preserving their sovereignty.

Although the German constitution does allow EU law to be regarded in Germany, the constitution does not mention how Germany has accepted full supremacy of EU law. The German courts clearly show their view on EU supremacy.

Originally, German courts had been divided as to the effect of EU primary and secondary law, and did occasionally refuse to reference EU courts when deciding on international law matters; their position was similar to the prior position of French Public (Administrative) Courts before accepting supremacy.

The most important court in Germany is the Federal Constitutional Court (FCC) because of its constitutional importance. In the case of Solange I[15]the Constitutional Court held that EU law had breached basic principles of German law and alternatively requested a ruling from the FCC, with the possible result that EU law may be disregarded if it did not regard the basic rights.

Further, in Solange II[16] the FCC found that EU law recognition and safeguards of fundamental rights of the Court of Justice were sufficient and comparable to the ones mentioned under the German constitution. The German court in this case stated, “[s]o long as the European Communities, and in particular the case law of the European Court, generally ensure an effective protection of fundamental rights…the Court will no longer exercise its jurisdiction……”.[17] However, since “the Court of Justice ensures the protection of fundamental rights in the individual case for the entire territory of the European Community … [the FCC] can limit its scope of review accordingly to the protection in general of inalienable fundamental rights standards.”[18] This represents that although the FCC can review the safeguards of fundamental rights of the Court of Justice, the FCC can only do so when reasonable; such as protecting the German fundamental rights standards.

Also, since the Court of Justice is regarded as a statutory court under Article 101 GG, and since individuals have the right to access statutory courts; this can be seen as limiting the German supremacy as the German courts now cannot refuse to make reference to the EU.

In the case of Brunner[19]the FCC held that future transfers of power made under Article 24 GG could not be made without the approval of the German Parliament – similar to Article 23 GG. Although “it is clear that the European treaties, signed by each of the member states, are considered to be hierarchically superior to all domestic law and it is clear that any EU law derived from that treaty is also accorded supremacy”[20]; “[m]embership in such a community … is subject to the requirement that the legitimation derived from and the influence exerted by the state’s citizens be safeguarded within the respective association of sovereign states”[21].

Therefore the FCC reserves a ‘right to review compatibility of EU law fundamental rights and the rights which were applied by EU with the German constitution’[22].

Further in this case the FCC held that if the EU institutions acted in an unreasonable manner which was not mentioned in the Treaties[23]; any such EU statute would not be binding in Germany. This comment is seen to be contrary to the judgements found in prior cases mentioned. Although the German courts have accepted that EU law is given dominance over national law; the FCC has made a clear intention to exercise a power of review over EU law, to ensure that the EU remains within their acquired powers stated within the Treaties[24].

An example of a German court refusing to reference the Court of Justice is found in Kloppenburg[25]where the FCC found that German courts, which are courts of last instance under Article 267 of TFEU, would be in breach of the German constitution if they failed to reasonably reference the Court of Justice. This displays how the FCC is limiting its own courts based on the German constitution.

Any court which refuses to follow a previous ruling of the Court of Justice, may be reviewed by the FCC for a breach of Article 101 GG. This represents that although there is no mention of supremacy in the German constitution, the constitution itself does not allow any EU law to be breached and therefore implicitly allows EU law to have priority over German courts. Since “[no European Treaty establishes] a European state on the basis of one sovereign European people; therefore, it is primarily incumbent upon the sovereign people of the Member States to provide, through their national parliaments, democratic legitimation regarding the exercise of sovereign functions on the part of the European Union.”[26] This represents that it is the member states who allow EU to have dominance in their national law; and in this case it is Germany who has such provisions in their constitution which limits them to go contrary to EU law.

The current position in Germany seems to be of such that although the FCC has accepted the fundamental rights protection provided by the Court of Justice; however has reserved the right to review EU statutes that go against the fundamental rights under German constitution.

However, there is a slight exception to the FCC reviewing EU legislation. In the case of Honeywell[27] it was held that scrutiny of EU Law should happen only in the most clear and manifest cases of EU law going contrary to what is mentioned in the Treaties[28], and only the FCC– as no other court in Germany has authorization – can review EU law; however such a review can only take place after the Court of Justice has been given the opportunity to review the case via a preliminary ruling reference.

With this judgement, it is proved that it will be unlikely for the FCC to disregard EU law in favour of German national law, due to the fact that now the Court of Justice is to be given a chance to review the case via a preliminary ruling reference. This potentially limits the power of German legal order.

In conclusion, the German legal order is similar to the legal order in France as to how the provisions within the constitution limit sovereignty or allow EU law to be considered and have some priority over international and at times national matters. The courts in each member state have their own adaptions to EU law supremacy. Germany have been more willing to challenge EU law if it does not accord to its own German constitution, or acts ultra vires; whereas France has accepted supremacy within its constitution, but has occasionally disregarded EU law.

Bibliography

Books:

• Lisa Webley and Harriet Samuels, Complete Public Law: Text, Cases, and Materials ( 3rd edn. OUP Oxford 2015)
• Nigel Foster on EU law. New York: Oxford University Press ( 6^th edn OUP Oxford 2018)

Cases:

• Boisdet, Re [1990] 9 WLUK 75
• Brunner and others v Federal Republic of Germany [1993] 10 WLUK 97
• Decision 2004/496 of 10 June 2004
• Garage Dehus SARL v Bouche Distribution [1984] 3 C.M.L.R. 452
• Gerda Kloppenburg v Finanzamt Leer (Decided on 22 February 1984) Case 70/83.
• Honeywell (Decided on 6 July 2010, NJW 2010, Case 3422-30)
• Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1972) CMLR 177

• J Weigel et Compagnie Sarl and La Societe des Cafes Jacques Vabre SA v Directeur General des Douanes et des  Droits Indirects and L’Agent Judiciaire du Tresor [1975] 5 WLUK 110
• Minister of the Interior v Cohn-Bendit [1978] 12 WLUK 179
• Nicolo, Re [1989] 10 WLUK 247
• Re Wunsche Handelsgesellschat (Decided on 22 October 1986) [1987] 3 CMLR 225
• Syndicat General de Fabricants de Semoules de France [1968] 3 WLUK 7
• Van Duyn v Home Office (1974) C-41/74 

Online Resources:

• http://www.constitutionnet.org/country/constitutional-history-france
• https://euobserver.com/political/23538
• https://guides.ll.georgetown.edu/c.php?g=362135&p=2446075
• https://wipolex.wipo.int/en/legislation/details/5560
• https://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/1993/bvg93-039.html
• https://www.conseil-constitutionnel.fr/sites/default/files/as/root/bank_mm/anglais/constiution_anglais_oct2009.pdf

Statutes and Constitutions:

• The Basic Law of the Federal Republic of Germany, adopted on 8 May 1949
• The Constitution of the Fifth Republic, adopted on 4 October 1958
• The Lisbon Treaty, signed on 13 December 2007; effective from 1 December 2009
• The Maastricht Treaty, signed on 7 February 1992
• The Treaty on the Functioning of the European Union (The Treaty of Rome), signed on 25 March 1957

[1] Information stated in https://wipolex.wipo.int/en/legislation/details/5560

[2] Reference to Article 55 of the French Constitution which states: “Treaties or agreements duly ratified or approved shall, upon publication, prevail over Acts of Parliament, subject, with respect to each agreement or treaty, to its application by the other party.”

[3] J Weigel et Compagnie Sarl and La Societe des Cafes Jacques Vabre SA v Directeur General des Douanes et des Droits Indirects and L’Agent Judiciaire du Tresor [1975] 5 WLUK 110

[4] Garage Dehus SARL v Bouche Distribution [1984] 3 C.M.L.R. 452

[5] Syndicat General de Fabricants de Semoules de France [1968] 3 WLUK 7

[6] Minister of the Interior v Cohn-Bendit [1978] 12 WLUK 179

[7] Van Duyn v Home Office (1974) C-41/74 

[8] J Weigel et Compagnie Sarl and La Societe des Cafes Jacques Vabre SA v Directeur General des Douanes et des Droits Indirects and L’Agent Judiciaire du Tresor [1975] 5 WLUK 110

[9] Nicolo, Re [1989] 10 WLUK 247

[10] Stated by Elena Papageorgiou, Law Officer of Community Law; The Law Office of the Republic of Cyprus.

[11] Boisdet, Re [1990] 9 WLUK 75

[12] Declared in Decision 2004/496 of 10 June 2004

[13] Stated in Foster, Nigel on EU law. New York: Oxford University Press, p.154.

[14] Stated by Mark Beunderman in Brussels, on 20 February 2007 in Article: French sovereignty passions clash with EU legal primacy  – https://euobserver.com/political/23538

[15] Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel (1972) CMLR 177

[16] Re Wunsche Handelsgesellschat (Decided on 22 October 1986) [1987] 3 CMLR 225

[17] Stated by the Federal Constitution Court in Germany in the case of Re Wunsche Handelsgesellschat (Decided on 22 October 1986) [1987] 3 CMLR 225

[18] Statement made by the Press Office of the Federal Constitutional Court; Press Release No. 39/1993 of 12 October 1993

[19] Brunner and others v Federal Republic of Germany [1993] 10 WLUK 97

[20] Lisa Webley and Harriet Samuels, Complete Public Law: Text, Cases, and Materials ( 3rd edn OUP Oxford 2015)

[21] Statement made by the Press Office of the Federal Constitutional Court; Press Release No. 39/1993 of 12 October 1993

[22] Foster, Nigel on EU law. New York: Oxford University Press, p.150.

[23] Reference to the Treaties of the European Union which the member states have signed and where they have given their sovereignty away; Maastricht Treaty, Treaty of Romer, Lisbon treaty, Treaty of Amsterdam, Single European Act, and Treaty on the Functioning of the European Union

[24] Ibid

[25] Gerda Kloppenburg v Finanzamt Leer (Decided on 22 February 1984) Case 70/83.

[26] Statement made by the Press Office of the Federal Constitutional Court; Press Release No. 39/1993 of 12 October 1993

[27] Honeywell (Decided on 6 July 2010, NJW 2010, Case 3422-30)

[28] Reference to the Treaties of the European Union which the member states have signed and where they have given their sovereignty away; Maastricht Treaty, Treaty of Romer, Lisbon treaty, Treaty of Amsterdam, Single European Act, and Treaty on the Functioning of the European Union