Primacy, identity and ultra vires: forging the Union through the law without foregoing the rule of law

“Should the application of EU law be ruled out on the grounds that the CJEU has disregarded the division of powers between the Member States and the European Union, as it results in particular from Articles 4 and 5 of the Treaty on European Union (so-called “ultra vires” control) (…)?” ¹ . This was the question the French Conseil d’Etat (Council of State hereinafter) faced in the French Data Network case. The French government put forward a plea concerning the ultra vires nature of the interpretation of the provisions of EU data protection law by the Court of Justice. The question was considered sufficiently important for the highest French administrative court to meet in a full general meeting (formation d’Assemblée), even if it did not finally carry out an ‘ultra vires‘ review. To carry out such a control would have been unprecedented, because the French legal order currently recognises only one limit to the integration of EU law into the national order. Indeed, this limit was recently recalled by the Constitutional council in its decision dated 15 October 2021, stating that, as the law stands now, the application of a provision of EU law can only be rejected if it contradicts a principle that is inherent to the French constitutional identity ² .

It is therefore necessary to qualify the ardour of those who see in the ultra vires the new authoritative argument to be relied upon whenever some EU law provisions that trouble them (and only these provisions) need to be neutralized. Is this the sign of a “Karlsruhe effect” ³ ? In a 5 May 2020 ruling, the German Constitutional Court ruled that by not reviewing in sufficient depth the proportionality of an ECB decision to buy government bonds on the secondary market, the Court of Justice rendered an ultra vires judgment ⁴ . The same reasoning was implicitly taken up by the Polish Constitutional Tribunal in its decision of 7 October 2020, in which it declared that the value of the rule of law and the principle of effective judicial protection, as interpreted by the Court of Justice, violated the Polish Constitution ⁵ .

Some seized this opportunity to start chanting the old tune of questioning the primacy of EU law and the pre-eminence of the European Convention on Human Rights. The case law of German, French and Polish judges is quickly mixed up – even though they have little in common. A cursory analysis could certainly lead one to think of a Calhounian moment in the Union, according to the idea expressed in an editorial in The Economist, in which an analogy was drawn between Calhoun’s theory – according to which the American federal states had a right to “nullify” the acts of the federal government ⁶ – and the so-called “resistance” of the national jurisdictions fanned by the German judgment of 5 May 2020 ⁷ . As pointed out by Jean Paul Jacqué, the comparison with Calhoun’s arguments is tempting, but proves to be somewhat reductive – and anachronistic – in relation to the “complexity” ⁸ of the constitutionally integrated system formed by the European Union and its Member States. This complexity leads to subtleties that are not easily dealt with in certain political diatribes that make European law – both of the Union and of the ECHR – a convenient scapegoat. 

National caselaw are far from being identical and one should beware of constitutional “copycats“; one should certainly not confuse the German Constitutional Court – “the best ally” of the Court of Justice according to President Lenaerts ⁹ – with the Polish Constitutional Tribunal, which breaks with the judicial dialogue. Judicial dialogue – this magical trick relieving us of all the jurisdictional troubles stemming from European integration. Bruno Genevois coined this term: in his words, in the relations between the Court of Justice of the European Communities and the national judges, there was no place “either for the government of judges or for the war of judges, but only for judicial dialogue” ¹⁰ . The quote is as hackneyed as it is enlightening. And yet, it was coined by Bruno Genevois in the context of the Cohn Bendit case, resulting in a ruling that is one of the most frontal oppositions to EU law; not only had the Council of State not asked a preliminary question, but it had adopted an interpretation of the letter of the EEC treaty in flagrant contradiction with the case law of the Court of Justice. It is apparent that conflicts between national courts and the Court of Justice are as old as the integration process itself and that, by generating creative tensions, they have actually catalysed its progress. 

The ultra vires argument, as applied by the German Constitutional Court, is only the latest manifestation of theories which, among others, and including the theory of identity, raise constitutional barriers to EU law. In a maximalist or, more simply put, outdated reading of the integration process, based as it is on a hierarchical vision of normative interactions, these limits can be seen as challenges to the primacy of EU law. In a more constructive reading of the relationship between legal systems, these limits are consolidate and allow for a renewed form of integration, induced by constitutional equivalence.

I. The strengthening of constitutional limits 

A long-standing resistance to the principle of primacy

Tensions with national constitutional courts arose in tandem with the development by the Court of Justice of its own “constitutional doctrine”. This is perfectly summarised in opinion 2/13, which refers to the “iterative case law” since the van Gend & Loos and Costa ¹¹ judgments: ” the founding treaties of the EU, unlike ordinary international treaties, established a new legal order, possessing its own institutions, for the benefit of which the Member States thereof have limited their sovereign rights, in ever wider fields, and the subjects of which comprise not only those States but also their nationals.” ¹²

It was precisely as a reaction to the Costa judgment’s enshrinement of the principle of primacy that the German and Italian constitutional courts drew up the first reservations of constitutionality in the integrated legal order. As long as (solange) EU law did not guarantee the protection of rights that are fundamental in Germany ¹³ or if it infringed supreme constitutional principles and inviolable personal rights (contro-limiti) in Italy ¹⁴ , domestic courts reserved the right to review the compliance of secondary legislation with the national constitution. The Court of Justice was receptive to this national case law, enshrining the existence of fundamental rights as general principles of EU law ¹⁵ , long before the Union adopted a Charter of Fundamental Rights. As a result, the German and Italian courts have suspended their reservations on constitutionality ¹⁶ , although tensions have intermittently arisen, fuelling the process of constitutional integration.

In the relations with the Italian Constitutional Court, the principle of primacy formed the basis of the Simmenthal case law, in which the Court of Justice affirmed the power of the national court to disapply a legislative provision that is contrary to EU law ¹⁷ . The difficulty lay in the fact that in Italy only the Constitutional Court could declare a law to be unconstitutional on referral from an ordinary court; and since, until that moment, a law that was incompatible with EU law was considered to be unconstitutional, only the Constitutional Court had jurisdiction to rule it as such. Since then, the Italian constitutional order has recognised the specificity of the EU legal system; whereas for a breach of international law, including the ECHR, ordinary courts must refer to the Constitutional Court to find a violation of Article 11 of the Constitution, they do have the authority to reject the application of any norm that is contrary to EU law. This being said, in 2017, faced with a law infringing fundamental rights, the Constitutional Court still considered that the ordinary court should first refer to the Constitutional Court the  examination of the constitutionality of the law, before refusing to apply it – or referring a preliminary question to the Court of Justice – based on an infringement of the EU Charter of Fundamental Rights ¹⁸ . This solution, which was criticised by some in the academia as amounting to breach of EU law, was subsequently abandoned by the Italian Constitutional Court ¹⁹ . And yet, these recurring tensions have nevertheless had the effect of anchoring EU law and its specific characteristics in the Italian constitutional order.

Ultra vires, or exceeding the conferred powers

After the “Solange” ruling, the German Constitutional Court has also developed new constitutional reservations, relating more directly to the issue of conferred powers, especially since the “Lisbon” decision ²⁰ . Article 23 of the Fundamental Law only permits the transfer of powers to the EU within the limits of Article 79(3) of the Fundamental Law, i.e., in compliance with that which is inherent in the German constitutional identity, the core of which is human dignity, the principles of democracy, the rule of law and the social and federal State ²¹ . In addition to respecting the fundamental rights and principles enshrined in Articles 1 and 20 of the Fundamental Law, the German Court checks whether the secondary legislation does not disregard the democratic foundations induced by the constitutional functions attributed to the Parliament, for example in budgetary matters ²² . In France, the concept of constitutional identity is also relied upon to draw the limits of European integration. As early as 2004, the Constitutional Council raised the constitutional reservation that “the transposition of a directive or the amendment of domestic law to reflect the requirements of a regulation cannot disrespect a rule or a principle inherent to the constitutional identity of France, except with the consent of the constituent power”. The first such principle inherent to the constitutional identity of France was discovered by the court on 15 October 2021, namely the prohibition on delegating to private persons general administrative police powers inherent in the exercise of the “public force” necessary for the safeguard of substantive rights ²³ .

While the German Constitutional Court has not yet concluded to any infringement of German’s constitutional identity, it has at the same time derived from the Honeywell judgment a so-called ultra vires review of the democratic principle ²⁴ . In this respect, the German Court reserves the right to declare inapplicable in the national legal order a provision of EU law that does not respect the principle of conferral of powers, insofar as this provision is not covered by the law ratifying the treaty. It stresses that the preservation of the foundations on which the allocation of powers within the European Union is based is of paramount importance for the guarantee of the principle of democracy. However, the ultra vires review is intended to remain exceptional, so that the Union’s failure to respect the division of powers must be manifest, since the contested secondary legislation is of significant importance, having regard to the principle of conferral and the obligation, arising from the principle of the rule of law, to respect the conditions of legality. In any event, before any finding of ultra vires is made, a question must be referred to the Court of Justice for a preliminary ruling. 

The Bundesverfassungsgericht’s judgment of 5 May 2020 was an example of judicial dialogue. The court had been seized with an appeal against the ECB’s decision on the public sector purchase programme (PSPP) adopted as a tool of quantitative easing. The applicants considered, inter alia, that the ECB had exceeded the powers conferred on it by the Treaty in the field of monetary policy, since the purchase programme constituted an important element of the ECB’s policy. The German court had doubts as to the validity of that programme and referred a question to the Court of Justice for a preliminary ruling. In its judgment in Weiss, the Court held that the programme fell within the competence of monetary policy and that the ECB had not infringed the principle of proportionality ²⁵ . It is on this last point that the German Constitutional Court manifestly disagreed with the Court of Justice, considering that the latter had ruled ultra vires by not checking in sufficient depth the respect of the proportionality criterion, which required that all the interests involved be appropriately weighed. But, the court noted, “the combined effect of, on the one hand, a broad discretion of the institution whose act is being reviewed and, on the other hand, a limitation on the scope of the judicial review carried out by the Court of Justice of the European Union, clearly does not take sufficient account of the scope of the principle of conferral and opens the way to a continuous erosion of the powers of the Member States” ²⁶ . Thus, on 5 May 2020, the German Constitutional Court ordered the German authorities, the Bundestag and the Bundesbank, not to implement the ECB’s PSPP programme if, within three months, the ECB had not ensured that the programme complied with the principle of proportionality. 

Contrary to what has been claimed, the judgment of the Polish Constitutional Tribunal declaring Articles 2 and 19 TEU, as interpreted by the Court of Justice of the European Union, to be incompatible with the Polish Constitution, cannot in any way be compared with national case law that gave rise to these theories of constitutional limitations. The idea that the decision of 7 October 2021 is merely a challenge to the principle of the primacy of EU law should also be firmly rejected. Of course, it is a violation of the principle of primacy to voluntarily disrespect the interpretation of EU law given by the Court of Justice on the grounds that this would be contrary to the national constitution; but this is not the point. It is true that the Polish Constitutional Tribunal draws on the theory of ultra vires to criticise the Court of Justice for having found that reforms of the Polish judicial system violated Article 19 TEU by disregarding the principle of the independence of the courts ²⁷ . The tribunal considers that the interpretation of Article 19 TEU infringes the Polish Constitution in that it extends the jurisdiction of the Court of Justice to questions relating to the system and organisation of justice, which fall within the sovereign powers of Poland. This not only ignores the fact that Poland, like Hungary, is currently targeted by proceedings alleging the violation of rule of law principles, but also the conciliatory logic that underlies the theories of constitutional limits.

II. The advent of the constitutional equivalence technique

The aporia of primacy in a hierarchical vision of system relations

    When the political debate takes up the issue of primacy, political shortcuts are quickly taken. The reactions to the ruling of the Polish Constitutional Tribunal by some of the potential candidates to the French presidential election reveal three types of opposition to primacy ²⁸ . 

The first is a selective primacy, on the pretext of regaining legal sovereignty. This amounts to not applying the provisions of EU law when these would prevent certain political decisions, but only in certain areas such as immigration. In other words, what is promoted is a European Union à la carte, which the British were so fond of and which they did not manage to secure (which explains the Brexit vote). It is a somewhat delicious turn of events that this would be the path favoured by Michel Barnier… A second path is that of a generalised end of primacy. EU law would continue to exist, but would be discarded as soon as it conflicted with any national law provision. This vision is the one put forward by a far-right candidate who believes that it is “time to give French law back its primacy over European law”. Arnaud Montebourg believes that national laws should take precedence not only over European law, but also over international law, suggesting a step back in legal history. This would amount to a fundamental denial of the character of EU law, which, “because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.” The third way would be to exclude the application of EU law only when it contradicts the national constitution, so that France would “not need to opt out” of the treaties, as argued by Marine Le Pen. Xavier Bertrand proposes to introduce into the Constitution “a mechanism aiming to safeguard the higher interests of France”. Perhaps it would be good to recall that such a mechanism has already been created by the Constitutional Council, without any need to modify the text of the Constitution.

    If one wishes to stick to a trivial logic, it is clear that national case law and the case law of the Court of Justice are irreconcilable. Primacy as defined by the Court of Justice is absolute: it implies that a normative conflict must be resolved in favour of all provisions of EU law – whatever they may be – in relation to all national provisions – whatever they may be. In the Internationale Handelsgesellschaft ruling, the Court of Justice held that “the validity of a community measure or its effect within a Member State cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that State or the principles of a national constitutional structure” ²⁹ . More than forty years later, it stressed that national courts remain free to apply “national standards of protection of fundamental rights, provided that the level of protection provided for by the Charter, as interpreted by the Court, and the primacy, unity and effectiveness of EU law are not thereby compromised.” ³⁰  

Most national courts have taken the view that the national Constitution is the highest ranking norm in their national legal order. In France, both the Court of Cassation and the Council of State have affirmed that the supremacy conferred on international commitments does not apply in the domestic order to provisions of constitutional value ³¹ , although these rulings were grounded on Article 55 of the Constitution, according to which treaties have a higher value than laws. In the French Data Network judgment, the Council of State considers that “while enshrining the existence of a European Union legal order integrated into the internal legal order (…) Article 88-1 confirms the place of the Constitution at the top of the latter”. The fact that the national judge considers the Constitution as the supreme norm of its legal order is hardly shocking. It is even less so when this same Constitution enshrines the participation of the State in the European Union, which implies the need for compliance with the treaties. Thus, after citing Article 88-1 of the Constitution, the Council of State refers to Article 4(3) TEU, which enshrines the principle of loyal cooperation by virtue of which ” the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”. The conclusion is that compliance with EU law is an obligation both under the Treaties governing the Union and under Article 88(1) of the Constitution. This circularity is the mark of the constitutional integration that characterises the system formed by the European Union and its Member States.

Overcoming normative conflict in a constitutionally integrated system

    Pursuant to their constitutions, the Member States conclude treaties conferring on the Union its specific characteristics, which “include those relating to the constitutional structure of the EU, which is seen in the principle of conferral of powers referred to in Articles 4(1) and 5(1) and (2) TEU, and in the institutional framework established in Articles 13 TEU to 19 TEU” ³² . On the one hand, by authorising the State’s participation in the European Union, the national constitution provides a basis for EU law and its specific characteristics. Thus, compliance with EU law as interpreted by the Court of Justice of the European Union is as much a European requirement as a national one. On the other hand, the primary law of the Union provides the basis for a status of Member State of the Union which also includes rights such as those set out in Article 4(2) TEU. Thus, respecting the national identity and the essential functions of the State is a European as well as a national requirement. 

    Constitutional integration is based on the fundamental premise of a substantial equivalence between national constitutions and EU treaties. Indeed, as long as the treaties have been ratified in accordance with the national constitutions, the compatibility between the treaties and the constitutions can be presumed. In many countries, including France, the treaties have been subject to a preventive constitutionality review. It was the Council of State that set out the procedure to be followed in its Arcelor case, based on the conclusions of Mattias Guyomar ³³ , of which the French Data Network judgment is a further development. In the context of the review of the constitutionality of national measures implementing provisions of secondary EU law, it is up to the national court, “seized of a plea alleging disregard of a provision or principle of constitutional value, to investigate whether there is a general rule or principle of EU law which, having regard to its nature and scope, as interpreted in the current state of the case law of the European courts, guarantees by its application the effectiveness of compliance with the constitutional provision or principle invoked” ³⁴ . If so, the court must, in order to ascertain the constitutionality of the contested national measure, “ascertain whether the directive which that act transposes or the regulation to which that act adapts domestic law complies with that rule or general principle of EU law. If there is no serious difficulty, it shall dismiss the plea or, if there is, refer a preliminary question to the Court of Justice of the European Union for a preliminary ruling under the conditions laid down in Article [267 TFEU]. On the other hand, if there is no general rule or principle of EU law guaranteeing effective compliance with the constitutional provision or principle relied upon, it is for the court (…) to examine directly the constitutionality of the contested regulatory provisions.”

    This logic of equivalence makes it possible to resolve a number of potential normative conflicts, without having to decide the delicate question of primacy. In the vast majority of cases, it is not difficult to identify a principle or rule in EU law that is equivalent in substance to a principle or constitutional rule of a Member State. This is particularly true of fundamental rights, the range of which has become extensive, especially since the entry into force of the Charter. If equivalence is established, all that remains to be done is to untie the procedural knot; only the Court of Justice has jurisdiction to assess the validity of an act of EU law, so that all national courts are obliged to refer a question for a preliminary ruling pursuant to Article 267 TFEU ³⁵ . It is up to the Court of Justice to declare the invalidity of the provision of EU law – a regulation or a directive, for example – considering the principle or rule enshrined in the primary law of the Union whose substance is equivalent to a constitutional principle or rule. Let us recall that ” the judicial system as thus conceived has as its keystone the preliminary ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between one court and another, specifically between the Court of Justice and the courts and tribunals of the Member States, has the object of securing uniform interpretation of EU law (…), thereby serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the particular nature of the law established by the Treaties (…)” ³⁶ .

    Following the conclusions of its rapporteur, the Council of State extended the constitutional equivalence in the French Data Network judgment beyond the sole question of fundamental rights. It affirms that the constitutional requirements corresponding to “objectives of constitutional value of safeguarding the fundamental interests of the Nation, preventing breaches of public order and tracking down the perpetrators of criminal offences and combating terrorism”, “which apply to areas falling exclusively or essentially within the competence of the Member States by virtue of the treaties constituting the Union, cannot be regarded as benefiting, in EU law, from a protection equivalent to that guaranteed by the Constitution” ³⁷ . One can see a relative ambivalence in this; on the one hand, this amounts to admitting that the Union can pursue objectives of constitutional value; on the other hand, it leads to the constitutional limit being triggered more easily, since such equivalence will be more difficult to establish. 

    The theory of ultra vires leads to a certain extent to reasoning according to a logic of equivalence. In the view of the German Constitutional Court, the ultra vires review is triggered when European institutions adopt an act that clearly exceeds the powers attributed to the Union. Not only is it intended to remain exceptional, according to the Court, but it can only be exercised after a preliminary reference to the Court of Justice. In this way, the judicial dialogue is preserved just as much as the primacy of EU law, since an act that does not respect the principle of conferral of powers is in principle invalid. 

    The theory of constitutional identity can also be linked to a logic of reverse equivalence, in the sense that it is up to the EU to fully reflect the national constitutional requirements, in accordance with Article 4(2) TEU. The decision of 15 October 2021 illustrates this, because while the solution of the Constitutional Council has been interpreted by some as an attack on the primacy principle, we see it as the reflection of a certain harmony. The Constitutional Council drew the conclusion from Article 12 of the Declaration of 1789 that the prohibition on delegating to private persons the general administrative police powers inherent in the exercise of the “public force” necessary to guarantee rights constitutes a principle inherent in the constitutional identity of France ³⁸ . This principle inherent in the French constitutional identity is in no way in contradiction with EU law. On the one hand, the Union respects the essential functions of the State, in particular those aimed at ensuring its territorial integrity, maintaining law and order and safeguarding national security ³⁹ . On the other hand, the Court of Justice has implicitly accepted that the Member State may prohibit the delegation of police powers to private persons. It ruled out the possibility of private security services being attached to the public authorities; as they are provided by private individuals, they cannot be assimilated to tasks falling within the remit of the public security services ⁴⁰ .

    However, the technique of equivalence has two sets of limits. The first is substantive, since it is possible in principle that there be no equivalent in EU law to a rule or principle of national constitutional law and that a provision of EU law disregard national constitutional identity. The second is institutional, since, as in the case of the ECB’s PSPP programme, the national court may consider that the Court of Justice has not sufficiently reviewed the act of EU law on the occasion of the reference for a preliminary ruling. In both these cases, the primacy of EU law is overridden by the rule or principle of national constitutional law or to the case law of the national constitutional court. One can react by arguing that the limit, this time of the integrated legal order of the Union, has been reached. But it is also possible to envisage a way of deepening constitutional integration. 

It should first be pointed out that the principle of primacy is still based on case law. While it was expressly enshrined in Article I-6 of the draft Treaty establishing a Constitution for Europe, primacy is only the subject of Declaration No 17 in the EU Treaty, which refers to the case law of the Court of Justice. However, the Court of Justice already fully integrates the requirements of national identity into its case law to determine the extent to which a Member State may derogate from EU law. For example, the Court of Justice has held that the protection of the national official language, which is inherent to national identity (within the meaning of Article 4(2) TEU), constitutes a legitimate objective for justifying restrictions on the rights of EU citizens ⁴¹ . The way forward should be a judicial reconciliation of national and European constitutional requirements. 

This is the path that the Council of State took in the French Data Network case since, according to its official communication, it “reconciles respect for EU law with the effectiveness of the fight against terrorism and crime” ⁴² , without giving precedence to French law in this case or resorting to the theory of ultra vires. It should be remembered that the Court had to settle the delicate problem raised by the answer given by the Court of Justice to a preliminary question that it had referred. In this case, the question was whether the French provisions providing for the generalized retention of connection data were compatible with EU law. The Court of Justice interpreted Directive 2002/58, known as the “Privacy and Electronic Communications Directive”, and the General Data Protection Regulation (GDPR), in light of the Charter of Fundamental Rights, as opposing the generalized and undifferentiated retention of connection data ⁴³ , a solution which was perceived as creating the risk of jeopardizing the public order and public security missions assumed by the French authorities and jurisdictions, which explains why the Council of State attenuated its scope.

The PSPP case, on the other hand, shows the limits of the judicial conciliation exercise, while opening the way for a political dialogue. While the focus is on the decision of 5 May 2021, the judgment of 29 April 2021 is completely overlooked, although the German Constitutional Court dismisses two appeals alleging the ECB’s failure to comply with the PSPP’s reasoning requirement ⁴⁴ . Indeed, not only did the ECB provide explanations for assessing the proportionality of its programme, but these were discussed in the Bundestag, both with the Federal Government and with the Bundesbank. The Bundestag has come to the conclusion that the ECB has met the requirements of the decision of 5 May 2021. One may deplore the return of the Member States, a sign of intergovernmentalism, or, on the contrary, it may be seen as a sign of further integration, since the ECB, as an independent EU institution, is accountable to a national parliament that is just as democratically legitimate as the European Parliament. It is only logical that in a monetary area as integrated as the eurozone, the democratic principle should be applied from both a top-down and a bottom-up perspective. This also shows that the Union of law is linked to democracy.

Far from undermining it, the tensions caused by the constitutional limits set by the national constitutional courts feed the constitutionally integrated system formed by the European Union and its Member States. This system holds as long as the fundamental premise on which it is based is not challenged by the national courts. According to Opinion 2/13 of the Court of Justice, this premise implies that ” each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the EU that implements them will be respected.” ⁴⁵

Mutual trust broken by Poland

The decision of the Polish Constitutional Tribunal of 7 October 2021 breaks the mutual trust between the Member States because it calls into question the recognition of the values of the Union and the Member States set out in Article 2 TEU. It declares the incompatibility with the Polish Constitution of the value of the rule of law enshrined in Article 2 TEU and the principle of effective judicial protection guaranteed by Article 19 TEU, as interpreted by the Court of Justice of the European Union. This incompatibility is noted insofar as European integration has entered “a new phase” in which “a) the institutions of the European Union act outside the scope of the powers conferred on them by the Republic of Poland in the Treaties; b) the Constitution is not the supreme law of the Republic of Poland (…) c) the Republic of Poland cannot function as a sovereign and democratic State” ⁴⁶ . For the time being, only the operative part of the decision has been made public; pending the publication of the reasons, it is clear that Trybunał Konstytucyjny is engaged in a recovery, if not a misappropriation, of the German theory of ultra vires, as the Polish government did not hide its enthusiasm following the judgment of 5 May 2020 ⁴⁷ . One reading would be to say that the Polish Constitutional Tribunal can just as legitimately deploy its own theory of limits to integration; another is to use this decision to castigate the principle of primacy and the interference of the Court of Justice in the internal affairs of States. It is a totally overused practice of ultra vires that the Polish judges have adopted. It must be emphasised that the German Constitutional Court only exceptionally applies the ultra vires review when an act of secondary legislation of the Union leads to a structural overstepping of the power attributed to the Union; the consequence is at most the non-application of the act of secondary legislation in the national legal order, and there are means to avoid such a situation. In all cases, a preliminary question must be referred to the Court of Justice beforehand. However, the Polish Constitutional Tribunal confines itself to stating unequivocally that the values shared by the Member States that founded the European Union are incompatible with the national constitution. 

A legal expert draws the conclusion from the operative part alone that “the interpretation of Article 19(1) TEU given by the CJEU is deemed to be contrary to the Polish Constitution, because it leads to the extension of the power of the bodies of the Union over questions relating to the ‘system and organisation’ of justice in Poland, which are part of the sovereign powers of the Member States” ⁴⁸ . Additionally, “this reasoning contains an implicit premise which seems difficult to avoid: by extending the application of Article 19 TEU to disputes concerning the organisation of justice, which do not directly call into question ‘the rights and freedoms guaranteed by EU law’, the CJEU disregarded the general scheme of the Treaties, which leave to the Member States a competence of principle and limit that of the Union to the fields of conferred power. Basically, the Polish Court questions not only the constitutionality, but also the conventionality of the interpretation adopted by the CJEU.” ⁴⁹ However, in order to reach this conclusion, the author has no other choice than to refer to the content of the appeal lodged by the Polish government before this court, since the decision of 7 October 2021 is limited to setting out a ruling of unconstitutionality, without providing, at this stage, the reasons, which should be published later. 

In so doing, it is precisely highlighting the heart of the problem pointed out by the CJEU, since the ultra vires interpretation of which the latter is guilty of corresponds to the provisions and grounds of three judgments in which it was found that Poland had infringed the requirement of independence of national courts derived from Article 19 TEU by carrying out a series of reforms of the Polish judicial system. In essence, these reforms consisted of changes to the rules on the retirement of judges ⁵⁰ and the disciplinary system in the courts ⁵¹ . The second subparagraph of Article 19(1) of the Union Treaty gives concrete expression to the value of the rule of law as set out in Article 2 of the Union Treaty ⁵² , and enshrines the requirement of independence of national courts, which ” presupposes, in particular, that the body concerned exercises its judicial functions wholly autonomously, without being subject to any hierarchical constraint or subordinated to any other body and without taking orders or instructions from any source whatsoever, and that it is thus protected against external interventions or pressure liable to impair the independent judgment of its members and to influence their decisions.” ⁵³ It is hardly interfering in the jurisdictional organization of the State to note that some courts do not meet this requirement of independence. As ordinary judges of EU law, the national courts maintain a dialogue with the Court of Justice by means of preliminary rulings. They thus perform a function of EU law, by virtue of both Article 19 TEU and Article 267 TFEU, which implies that they are necessarily independent. Independence has gone from being a functional requirement – enabling the national court to perform its function as an ordinary court of EU law – to a structural requirement – ensuring that the Member State is indeed a State governed by the rule of law. 

* * *

    The principle of primacy is one of the essential characteristics of EU law which, according to the Court of Justice, ” have given rise to a structured network of principles, rules and mutually interdependent legal relations linking the EU and its Member States, and its Member States with each other, which are now engaged, as is recalled in the second paragraph of Article 1 TEU, in a ‘process of creating an ever closer union among the peoples of Europe’” ⁵⁴ . Primacy no longer exhausts the way in which relations between the European Union and the Member States can be viewed. These are nourished by convergences but also by divergences – rarer – which equally nourish the constitutional system formed by the EU and its Member States. Rather than being signs of conflict, national case law, from the concept of constitutional identity to ultra vires arguments, brings life into the system through the tensions it gives rise to; in any case, resistance remains very rare and almost never produces concrete effects. The decision of the Polish court is not part of this constructive logic but is part of a resolutely destructive project that will not only weaken Poland’s participation in the European Union, but will also eliminate the principles of the rule of law. As Stephan Harbarth, President of the German Constitutional Court, has said, “the independence of the judiciary in Poland exists at best only on paper”. ⁵⁵

1.  CE, “Séance publique du 16 avril 2021 à 16 h, N°s 393099, 394922, 397844, 397851, 424717, 424718”, press release (free translation).
2.   CC, Decision No. 2021-940 QPC of 15 October 2021, Société Air France.
3.  The phrase is borrowed from Alan Hervé who used it in a tweet.
4.  BVerfG, 5 May 2020, PSPP, 2 BvR 859/153, ECLI:DE:BVerfG:2020:rs20200505.2bvr085915.
5.  Trybunał Konstytucyjny, Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union, 7 October 2021, K 3/21.
6.  Ph. Feldman, La bataille américaine du fédéralisme, John C. Calhoun et la nullification, Paris, PUF, Collection: “Leviathan”, 2004.
7.  “Charlemagne, The EU’s Calhounian moment”, The Economist, 17th April 2021.
8.   J. P. Jacqué, “L’instabilité des rapports de système entre ordres juridiques”, Revue française de droit constitutionnel, 2007/1, n° 69, p. 3.
9.   “Koen Lenaerts: “The EU can only function if national law gives way to common European law”, Les Echos, 28 October 2021.
10.   CJEU, Plenary Session, 18 December 2014, Opinion 2/13, ECLI:EU:C:2014:2454, paragraph 176.
11.  CJEU, 5 February 1963, Van Gend & Loos, 26/62, EU:C:1963:1; CJEU, 15 July 1964, Costa, 6/64, EU:C:1964:66
12.  CJEU, Plenary Session, 18 December 2014, Opinion 2/13, paragraph 157.
13.  BVerfG, 29 May 1974, 2 BvL 52/71.
14.  Court of Cassation, 27 December 1973, Frontini, No. 183; 8 June 1984, Granital, No. 170.
15.  CJEU, 17 December 1970, Internationale Handelsgesellschaft mbH, 11-70, ECLI:EU:C:1970:114.
16.  BVerfG, 22 October 1986, 2 BvR 197/83.
17.  CJEU, 9 March 1978, Simmenthal, 106/77, ECLI:EU:C:1978:49.
18.  Corte costituzionale, 7 November 2017, Sentenza no. 269, ECLI:IT:COST:2017:269. 
19.  Corte costituzionale, 30 July 2020, Sentenza no. 182/2020, ECLI:IT:COST:2020:182.
20.  BVerfG, 30 June 2009, 2 BvE 2/08, ECLI:DE:BVerfG:2009:es20090630.2bve000208.
21.  Ibid.
22.  BVerfG, 7 September 2011, MES, 2 BvR 987/10, ECLI:DE:BVerfG:2011:rs20110907.2bvr098710. BVerfG, 14 January 2014, OMT, 2 BvR 2728/13, ECLI:DE:BVerfG:2016:rs20160621.2bvr272813.
23.  Decision No. 2021-940 QPC of 15 October 2021, Société Air France.
24.  BVerfG, 6 July 2010, Honeywell, 2 BvR 2661/06, ECLI:DE:BVerfG:2010:rs20100706.2bvr266106.
25.   CJEU, Grand Chamber, 11 December 2018, Weiss and Others, C-493/17, ECLI:EU:C:2018:1000.
26.  BVerfG, PSPP, 2 BvR 859/153, cited above, paragraph 156.
27.   CJEU, Grand Chamber, 24 June 2019, Commission / Poland, known as “independence of the Supreme Court”, C-619/18, ECLI:EU:C:2019:531; CJEU, Grand Chamber, 5 November 2019, Commission v Poland, known as “independence of the ordinary courts”, C-192/18, ECLI:EU:C:2019:924; CJEU, Grand Chamber., 15 July 2021, Commission v Poland, known as “disciplinary regime of judges”, C-791/19, ECLI:EU:C:2021:596.
28.   A. Renaut, “Cinq candidats à l’Élysée contestent la primauté du droit européen”, Afp, 8 October 2021.
29.  CJEU, Internationale Handelsgesellschaft mbH, 11-70, cited above, paragraph 3.
30.  CJEU, Grand Chamber, 26 February 2013, Melloni, C-399/11, ECLI:EU:C:2013:107, paragraph 60.
31.   Cass, plenary session. 2 June 2000, Fraisse, 99-60.274. CE, Ass. 30 October 1998, Sarran and Levacher, 200286, 200287.
32.  CJEU, Opinion 2/13, cited above, paragraph 165.
33.   CE, Ass., February 8, 2007, Arcelor, N° 287110, ECLI:FR:CEASS:2007:287110.20070208.
34.  CE, French Data Network, cited above, paragraph 6.
35.  CJEU, 22 October 1987, Foto-Frost, 314/85, ECLI:EU:C:1987:452.
36.  CJEU, Opinion 2/13, cited above, paragraph 176.
37. CE, French Data Network, cited above, paragraph 10.
38.  CC, Decision No. 2021-940 QPC, supra, point 15.
39.  Article 4(2) TEU.
40.  CJEU, 13 December 2007, Commission / Italian Republic, C-465/05, ECLI:EU:C:2007:781.
41.   CJEU, 12 May 2011, Runevič-Vardyn, C-391/09, ECLI:EU:C:2011:291. 
42.   CE, ‘Données de connexion : le Conseil d’État concilie le respect du droit de l’Union européenne et l’efficacité de la lutte contre le terrorisme et la criminalité’, Press release, 21 April 2021.
43.  CJEU, Grand Chamber., 6 October 2020, La Quadrature du Net and others. C-623/17, C-511/18, C-512/18, C-520/18, ECLI:EU:C:2020:790.
44.  BVerfG, 29 April 2021, PSPP, 2 BvR 1651/15, 2 BvR 2006/15.
45.   CJEU, Opinion 2/13, cited above, paragraph 168.
46.  Trybunał Konstytucyjny, Assessment of the conformity to the Polish Constitution of selected provisions of the Treaty on European Union, 7 October 2021, K 3/21.
47.   “Polen lobt Karlsruher Urteil zu Europäischer Zentralbank”, FAZ, 10 May 2020.
48.  W. Zagorski, “When the Polish Constitutional Tribunal refutes the case law of the CJEU. Observations under the judgment of 7 October 2021”, 21 October 2021, Jus Politicum Blog. 
49.  Ibid.
50.  CJEU, Commission v Poland, “Independence of the Supreme Court”, C-619/18; Commission v Poland, “Independence of the ordinary courts”, C-192/18, cited above.
51.  CJEU, Commission v Poland, so-called “disciplinary regime for judges”, C-791/19, cited above. 
52.  CJEU, GC, 27 February 2018, Associação Sindical dos Juízes Portugueses, C-64/16, ECLI:EU:C:2018:117, paragraph 32.
53.  Ibid; CJEU 7 February 2019, Vindel, C-49/18, ECLI:EU:C:2019:106; see also CJEU, GC, 25 July 2018, Minister for Justice and Equality, so called “Failures of the Judicial System”, C-216/18 PPU, EU:C:2018:586.
54.  CJEU, Opinion 2/13, cited above, paragraph 167.
55.  “Präsident des Bundesverfassungsgerichts kritisiert Polen”, BR24 NACHRICHTEN, 13.11.2021.