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Judicial Review and the Constraints of the Primacy of EU Law Part 1—the German Saga

The CJEU’s long-standing case law establishes that national courts must set aside conflicting national laws in favor of EU law, resembling a decentralized judicial review system. In contrast, traditional centralized judicial review involves a single body determining the constitutionality and thus applicability of laws. Germany’s Federal Constitutional Court (GFCC) has created exceptions to the primacy of EU law in order to protect national constitutional identity, sovereignty, and fundamental rights. This raises the question of whether the limits of the principle of primacy should be enforced within a centralized system by constitutional courts or through a decentralized system by regular courts the same way primacy itself is supposed to be enforced. This question highlights the complex interplay between national and supranational judicial review systems in Europe.

The primacy of EU law and systems of judicial review

A norm taking precedence over another implies that the latter is not applicable because of its nonconformity with the prior. In order for this not to remain a substance-free declaration, there needs to be a process and a judicial body that ensures that collisions between the two norms are detected and resolved. This process is essentially what is referred to as judicial review. Traditionally, judicial review is used to maintain the hierarchy of norms, most typically with regard to a constitution’s place above all other laws in a country. Constitutional judicial review has two main archetypes: centralized, where a special single body decides on the constitutionality of a law and annuls it if it is found unconstitutional, and decentralized, where regular courts have the power to put aside laws they find unconstitutional.

The CJEU’s Simmenthal decision established the basis for something very similar to decentralized judicial review. It declares that, based on the direct applicability (as is established in Article 288 TFEU and for example the Commission v Italy (C-39/72) decision) and the primacy of EU law, the system of community law can only be effectively upheld if every national court has the right to set aside any provision of national law which may conflict with it, whether prior or subsequent to the EU rule, without the need to wait or even ask for the decision of a domestic higher or special court. This system is of course not identical to traditional decentralized judicial review. EU law is not above national law in the hierarchy of norms and a nonconforming national law does not necessarily become null and void at the end of the process (mostly due to the lack of a system of precedence), but the practice of regular courts having the power to set aside national laws in favor of EU laws is a form of judicial review.

This judicial review process gets somewhat more complex with the role of preliminary ruling proceedings by the CJEU. According to Article 267 of the Treaty on the Functioning of the European Union (TFEU), the CJEU has jurisdiction to give preliminary rulings concerning the interpretation and validity of EU law, if a national court requests it. This however does not mean that the CJEU has jurisdiction to put aside national laws in favor of EU law. If that were the case, the CJEU itself could declare the inapplicability of a national law, which would mean that the CJEU had jurisdiction to interpret and apply or choose not to apply national laws. This would establish a clear hierarchical system, where the CJEU is on top. However, the CJEU only has jurisdiction to interpret EU law, hence only a national court has jurisdiction to decide the fate of a national law, albeit in accordance with the CJEU’s interpretation of EU law and taking into account other considerations set out in the preliminary ruling.

As we can see, the principle of the primacy of EU law entails a system of judicial review to determine the conformity of the laws of a Member State with the relevant EU law and thus the applicability of the national law in question. The way this immanent judicial review, together with the principle of the primacy of EU law relates to the functioning of European-style constitutional judicial review can raise some questions, especially in light of the relatively recent trends regarding the limits of primacy (detailed below).

German exceptions

The German Federal Constitutional Court has developed three exceptions from the primacy of EU law. All of these exceptions carry intriguing connotations with regard to the role of centralized constitutional courts as the protectors of constitutions against the backdrop of the sort of decentralized system of judicial review in connection with the principle of primacy.

Fundamental rights review

The GFCC’s assessment of the exception of the fundamental rights review took an unprecedented turn in 2019 with the Right to be Forgotten (RTBF) I and II decisions. In RTBF I, the constitutional court declared that national fundamental rights should be applied even when the national legislator is implementing an EU norm. However, if the protection provided by the German fundamental rights does not reach the level of protection provided by EU law, the EU Charter of Fundamental Rights should be applied (a position that can be viewed as somewhat of a reversal of the Solange assumption). The Court also stated that “[i]n the event that this gives rise to unresolved questions regarding the Charter’s interpretation, the Federal Constitutional Court will request a preliminary ruling from the Court of Justice of the European Union” (para. 72). However, in cases where the interpretation of the Charter was not problematic, the Court saw no need for such a request.

In its subsequent RTBF II decision, the GFCC established that even in areas fully determined by EU law it would have jurisdiction to conduct a fundamental rights review. This review, however, would be based on the Charter, not on the Grundgesetz (the Fundamental Law). Thus, on the one hand, it abandons its institutional exceptionalism and applies EU law in the same way as ordinary courts, but on the other hand, it de facto assigns itself the competence of the “last word” in the interpretation of the Charter (albeit—if it finds that the interpretation is not self-evident—with the obligation of a preliminary ruling procedure) and in the examination of the compatibility of national law or even EU law with the fundamental rights provided by the EU. One of the reasons for this approach was the fact that the GFCC served as the sole institution in Germany specialized in fundamental rights review and it was the exclusive organ providing a constitutional complaint procedure. This makes perfect sense in a centralized system of judicial review, since—given the lack of a system of precedent—ordinary courts (even with the preliminary ruling of the CJEU) cannot provide a lasting solution for the collision between national and EU law, and EU law and EU fundamental rights, even though they do have a limited judicial review capacity.

Naturally, the power to annul and to review a national law against a higher norm (mostly the constitution) belongs to the constitutional court in a centralized system. However, as I have already mentioned, according to the case law of the CJEU, ordinary national courts have jurisdiction to review and set aside national laws that violate EU law. Against this background, the position developed by the GFCC in its RTBF II decision may represent a step towards a “cleaner” centralized judicial review system, working in conjunction with the long-established judicial review system based on the principle of primacy in EU law.

The Constitutional Court requesting a preliminary ruling is not against EU law, as the GFCC fits into the CJEU’s definition of a national court or tribunal. However, some would say that by applying EU law and using the preliminary ruling procedure the same way as ordinary courts, the GFCC integrates itself into a hierarchical system where the CJEU is above it. Be that as it may, not even ordinary courts are in a hierarchical system with the CJEU considering that it cannot overrule them. Still, the CJEU does give an obligatory interpretation of EU law and if they do not follow it, an appellate court will most likely overrule them. There is no such “danger” though when it comes to constitutional courts, hence, was the interpretation of EU law determined to breach for example the constitutional identity, the GFCC could put aside the CJEU’s interpretation without any fear of its decision being overruled by any court.

Ultra Vires Legislation and Protecting German Constitutional Identity

The two other exceptions are usually discussed in the same decisions and context.

The GFCC first identified the significance of constitutional identity with regard to EU law in its 1993 Maastricht decision, where it declared that the European treaties could only be ratified if they complied with certain core principles of the German Constitution. The Court subsequently specified in multiple decisions that the core principles, which it designates as German constitutional identity, are the eternity clauses of the Fundamental Law.

In 2009, in the Lisbon decision, the GFCC explicitly vindicated itself in the power of an identity review (Identitätskontrolle) and declared that an EU norm failing this review could lead to its inapplicability in Germany. The Court held that the protection of the German constitutional identity stemming from the Fundamental Law’s eternity clauses and the ultra vires review is the sole responsibility of the GFCC. Regarding the procedure in which the aforementioned review could be conducted, in para. 241 of the decision the GFCC considered any of the already existing procedures of the constitutional court to be viable options. Thus, the CFCC established its competence to declare an EU norm inapplicable in Germany the same way and in the same procedures as it annuls unconstitutional national laws.

This stance was reiterated in 2016, in the OMT decision. According to Article 263 of the TFEU, it is the CJEU that has jurisdiction to review the legality of EU laws and thus to annul them. Even though the GFCC does not and cannot annul EU laws, it does vindicate itself the competence to review them and declare them inapplicable, which—within the borders of Germany—practically has the same effect. Regarding this, the Court concluded in the same decision that—given that the Treaty on the European Union (TEU) itself provides for the identity review and that the Member States are the masters of the Treaties (Herren der Verträge)—it, declaring an EU law inapplicable in Germany, does not contradict the principle of the German Constitution’s openness to European integration (Europarechtsfreundlichkeit).

Another sign of the GFCC’s European-law-friendly way of identity and ultra vires review is the role of the preliminary ruling procedure. As the Court established both in the Honeywell and the OMT preliminary ruling decisions, before reviewing the violation of constitutional identity or the ultra vires nature of an EU norm, it first has to refer the matter to the CJEU by way of a preliminary ruling procedure. In this context, the GFCC takes the interpretation of the CJEU regarding the EU law and then puts this interpretation up against the standard of German constitutional identity (para. 27—OMT preliminary ruling).

So far, the only case where the GFCC declared an EU norm ultra vires and thus inapplicable was the PSPP decision. The Court classified certain decisions of the European Central Bank (ECB) and also the decision on the CJEU ultra vires and proclaimed that German constitutional organs therefore may not participate in their implementation or execution. The GFCC explained that “the principle of proportionality and the overall assessment and appraisal it entails are of great importance with regard to the principles of democracy and the sovereignty of the people”. Therefore, in the decision’s reasoning, the GFCC mainly focused on the CJEU’s failure to assess all relevant circumstances and the lack of proportionality both in the ECB’s and in the CJEU’s decisions. It also stated that the process of taking the CJEU’s assessment and interpretation as a basis for ultra vires and identity review “no longer applies where the interpretation of the Treaties is simply not comprehensible and thus objectively arbitrary” (para. 118), which is what the concrete case entailed.

As we can see, as an “inversion” of the almost decentralized system of judicial review related to the primacy of EU law, the GFCC seems to have created a system for the protection of German constitutional identity and sovereignty that—for the most part—fits neatly into the structural conditions set by primary EU law. It is a system that takes the constitutional court’s special role in the German centralized system of constitutional judicial review seriously and relies on its exclusive and supreme role in protecting the Fundamental Law and its core principles. It follows from this characteristic that in the framework of the German constitutional system, if its protection so requires, it may even go against the CJEU’s interpretation if it is objectively arbitrary. Even if this latter phenomenon does not fit so well into the framework derived from the TEU and the TFEU, it is a solution that again underlines the special and supreme character of constitutional courts in centralized constitutional review systems.

Conclusion

The German Constitutional Court envisages the enforcement of the constraints of EU law strictly within the framework of centralized constitutional judicial review, using its traditional and existing instruments. On the one hand, by the direct interpretation and independent application of the fundamental rights of the EU Charter and, on the other hand, by a clear declaration of inapplicability in cases related to ultra vires legislation and the violation of constitutional identity.


János Rupnik is a fourth-year law student at the Faculty of Law of the Eötvös Loránd University. He holds a scholarship from the Aurum Foundation and is also a member of the Bibó István College for Advanced Studies. As a former intern at the Hungarian Constitutional Court, his research focuses on the relationship between EU and national law and the related judicial review procedures.

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