The French practice on the primacy of European law is crucial for several reasons. One of them is the fact that France is one of the founding members of the European Coal and Steel Community, initiating the Schuman Declaration of 1950. France wanted lasting peace and cooperation on the continent after the tragedies of World War II. Since the Schuman Declaration, France has been one of the engines of European integration.

The primacy of European law revolves around the idea that the enforcement of the uniform application of the EU law ascertains the nonstop advancement of the European integration and the cooperation between the member states. The principle of primacy, while considered an essential aspect of the EU legal framework, is not in the founding treaties of the European Union. The application of the concept varies among member states, as countries protect their constitutional identity and do not accept the absolute primacy of the EU law. This essay delves a bit more into the French practice, the foundations of which I previously analyzed here.

The French Institutional Background of the Judiciary

The French Constitution (Constitution of the Fifth Republic) emphasizes the separation of powers. The judiciary is independent and separate from the legislative and executive branches. To review some decisions from the French practice, first, the institutions ruling in the cases must be examined.

The Council of State (Conseil d’État) is the highest administrative court in France. The Council serves both as a judicial body when it handles administrative cases and as a consultative body, the Council of State can issue advisory opinions called “avis” on legal matters referred to it by government authorities. These opinions are not binding; nevertheless, they provide important guidance to the government.

The other essential judicial body to be observed is the Constitutional Council (Conseil Constitutionnel). This Council is the highest constitutional authority in France, thus its primary role is to ensure the constitutionality of statutes and their conformity with the Constitution.

The key difference between the two Councils from the viewpoint of the topic at hand is that the Council of State is an advisory body that serves legal opinions (as the highest forum of administrative review), while the Constitutional Council ensures compliance with the fundamental principles of the Constitution. Another major difference is that the decisions of the Constitutional Council cannot be subject to appeal, and this Council has the authority to proclaim statutes unconstitutional. Generally, it could be said that in the topic of the primacy of European law, the constitutional courts are the judiciaries that the researchers study. However, in the French practice, several of the most important cases concerning EU law primacy were decided in the Conseil of State, one of them being the Nicolo case.

The Nicolo case

On the 20^th October of 1989, the Council of State made a significant decision in the Nicolo case. The Council of State was faced with the question of whether a 1977 French law, which created a single electoral constituency for France in the elections of the European Parliament, was in conformity with the 1957 Treaty of Rome and if voters in the overseas French territories (département d’outre-mer) have voting rights in the 1989 European elections.

Nicolo argued that the single constituency of the 1977 law on the election of the representants of the Assembly of the European Community was contrary to the 1957 Treaty of Rome as it allowed overseas French citizens to be electors and to be elected at the elections. Nicolo claimed that the Treaty of Rome applied to the French Republic, from which the overseas territories of France were excluded. The Council of State held that pursuant to Article 55 of the Constitution an administrative judge can review the compatibility of a national law to an international treaty. (It is important to note that previously, a law called „shielding law” prevented the judges from doing so.) The Council of State rejected the application of Nicolo on the grounds that the overseas territories are an integral part of the French Republic. These territories form part of the single constituency within which the French representatives of the European Assembly (the former name of the European Parliament) are elected. The most important part of the decision however is the fact that the Council of State ruled in this case, as it established its competence to review compliance with international treaties.

Judgments after the Nicolo case

A 2001 legal case before the Council of State involved several pharmaceutical companies challenging a questionable government decree. The companies claimed that the decree violated several EU Treaty provisions. According to the businesses, the decree was discriminatory based on the nationality of companies, it violated the principle of legal certainty and also the loyalty to the European Union. Without going into much detail about the case, it must be pointed out that the Council of State upheld the decree and rejected the annulment request. However, a finding of great importance was made, as the Council established the principle that the Community law cannot lead to the supremacy of the French Constitution being called into question. This was a new approach, surpassing that of the Nicolo decision.

A 2007 decision from the Constitutional Council is also noteworthy. This case, while establishing the distinctive nature of European law as compared to “regular” international law (cf. Van Gend & Loos), also further verified the French view on the relationship between EU law and the French constitution. The case assessed the question of whether the ratification of the Treaty of Lisbon (the last amending treaty of the European Union) required a constitutional review from the Constitutional Council. As it was established, the Council can review compliance with the Constitution. However, it remained unclear whether the Council had the authority to revise an EU treaty. In the case at hand, the Council differentiated EU law from international law and acknowledged the presence of European law within the national legal system of France. The Constitutional Council also emphasized the effect that competence transfers have on national sovereignty and declared that these transfers of competence required the amendment of the constitution. The Constitutional Council held that the ratification of the Treaty of Lisbon required a constitutional amendment.

Summary

The Nicolo case, as a groundbreaking French case, established that the Council of State can verify the conventionality of a national law to an international treaty. Then, in 2001, another decision emerged before the Council of State when it was established that the Constitution of France cannot be called into question. This further proved that the primacy of EU law is not a black-and-white debate in France, a historically a great supporter of the integration of the member states. There is a complex relationship between French constitutional identity and EU law, specifically in cases where the French Constitution is involved, therefore it cannot be said that France accepts the absolute primacy of EU law, however, it does allow its primacy to prevail, when its constitution is not brought into question.

Márton Balogh is a law student in his fourth undergraduate year at the University of Pécs, Hungary, and a student at the MCC Law School. As of this year, he is a holder of the graduate scholarship of the Aurum Foundation. He is mostly interested in European law. His current study and research interests include the practice of the European Court of Justice in the Common Foreign and Security Policy, the primacy of European law, and migration and asylum law in the European Union. He envisions his future working in the European Union, where he currently interns at the European Parliament.