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Márton BALOGH: What Comes First? The Primacy of the European Law in the French Constitution and in Its Judicial Practice

The principle of European Union (EU) law primacy constitutes a foundational element of the EU legal framework, while its application varies among member states. This essay delves into the French interpretation of EU law primacy, a country that is one of the founding members of the European Community.

France was devastated because of World War II. This situation led to the desire of several European countries for lasting peace and previously unprecedented cooperation among European countries at that time. The Schuman Declaration of 1950 marked a significant step in this direction, initiating the process of European integration with the proposal of the European Coal and Steel Community.

The primacy of EU law is a legal concept which states that when a conflict arises between an aspect of EU law and an aspect of national law, EU law will prevail. The concept aims to ensure the uniform application of EU law across member states. The principle is confirmed in a written declaration annexed to the Lisbon Treaty (Declaration 17.), however, it is not written in the founding Treaties of the EU; neither in the Treaty on the European Union (TEU) nor the Treaty on the Functioning of the European Union (TFEU).

The French Constitution on EU law

The Constitution of the Fifth Republic is the constitution of France in force since 1958. The Constitution lays down in its Preamble that its principles are defined by the Declaration on the Rights of Man and Citizen, the Preamble of the French Constitution of 1946, and the Charter for the Environment of 2004. French national sovereignty is defined through the turbulence of the French Revolution and according to Article 3 of the Declaration: “The principle of any Sovereignty lies primarily in the Nation. No corporate body, no individual may exercise any authority that does not expressly emanate from it.” The French constitutional identity and within it, the national sovereignty of France dates back to the 18th century. Besides the declaration of sovereignty, Title I of the Constitution lists the values of the sovereign France: the language, the national insignia, La Marseillaise as the national anthem, and the famous maxim of France: Liberty, Equality, Fraternity. The Constitution gives a very strong identity to the French, it is visible that besides the legal approach, there is a strong historical background to the national sovereignty.

The French Constitution further emphasizes the importance of democracy, the rule of law, and the protection of human rights. Bear in mind that France was one of the two countries (besides the Netherlands) that did not accept the 2004 Constitution for Europe through respective popular votes. France has a constitution that the French people created and this same Constitution vests them with legal power. Still, considering a European treaty as a constitution was out of the question. This decision to not support the Constitution for Europe advocates for the objective of France to maintain a balance between the responsibilities of the EU law and to protect its own constitutional values and identity.

Title XV of the French Constitution asserts France’s status as a member state of the EU and accepts the TEU and TFEU as the founding treaties of the European Union and as binding to the French legal system. The Constitutional Council (Conseil Constitutionnel) plays a significant role in ensuring compliance between EU law and the French Constitution, as it is the highest French constitutional jurisdiction. Regarding the primacy of EU law over the French Constitution, the issue was clarified by the French Constitutional Council in the digital economy decision in 2004, elaborated below.

The digital economy decision

According to the Constitutional Council, the obligation to respect EU law derives from Article 88-1 of the French Constitution (Title XV). Article 88-1 of the Constitution is a provision that requires the legislator to respect EU law in the fields of shared competences. The Constitutional Council also clarifies that it is not the task of the Constitutional Council to examine the constitutionality of the transposing legislation as only the Court of Justice of the European Union (CJEU) can examine the limits of EU competences. As a former Hungarian constitutional judge, Professor László Trócsányi explained: “The Constitutional Council thus yields its place to EU law, but bases its primacy on the Constitution and not on any peculiarity (vertu) of that legal order.” This is a crucially distinctive finding from the French Constitutional Council, as the possible implementation of the EU law in the French system is not based on the EU law concept of primacy, because the power of EU law within the constitutional system derives from the authorization given by (codified into) the Constitution of France.

The French logic supports the importance of the historical background of constitutional values in a country, as the interpretation of the Constitutional Council states that constitutional norms prevail over European law. The authorization of EU law is derived from Article 88-1 of the Constitution, not from the legal concept of the EU law primacy. France accepts the primacy of EU law, but only in terms of shared EU competences. France still relies heavily on its constitutional identity and it is also established by the French Constitutional Council that the rules and principles that are essential to the constitutional identity of France must be respected.

A careful balance

Without delving into the practice of the constitutional courts of other member states, the French practice heavily impacts the whole European Union, given its status as one of the founding members of the European Community. France chose a rather symbolic approach: it interprets and applies the law in line with the EU law whenever it is convenient for the French interpretation. This willingness shows the proactive commitment of one of the founding member states not only to reflect a commitment to the objectives of the EU but also to ensure a consistent approach other member states can follow. However, the French practice recognizes the importance of maintaining a certain margin of state discretion or appreciation. This margin stands for the acknowledgment of the diversity of the member states’ legal systems, constitutional values, and customs. The French practice therefore aims to preserve national identity while France remains an integral part of the European project. It is important to mention that Article 4(2) of the TEU (“national identity clause”) respects the differences of the member states by stating that The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. […]This article further complicates the debate on EU law primacy, as it allows the member states to respect their national identity, without explaining the relationship between this article and the primacy jurisprudence that develops in practice.

The French interpretation evolves in response to the changing dynamics of the extent to which national sovereignty is ceded in the quest for European integration. The European Union is often said to be strengthened by crises and it always finds pioneering solutions to first-time situations. The CJEU has succeeded in establishing the principle of EU law primacy, which has proven to be an essential element of European integration. As the EU adapts to the challenges it faces time and time again, the interpretation of the French constitutional jurisprudence concerning EU law primacy may also adjust to ensure the future of the EU project within the French legal context. Quid pro quo: the French practice accepts the primacy principle, however demands the respect of its Constitution.

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.

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