Filip Vrabel

It is, if not in practice, then in principle, a goal of the European Union to respect democracy and the rule of law: both concepts receive attention in the Union’s founding documents. To quote from the Treaty on the European Union (TEU), Article 2 states that: 

 

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect of human rights, …”[1]

 

The wording suggests equivalence and compatibility between the values of democracy and rule of law. Yet it is perhaps an axiom of the Union’s historical experience that what has been assumed as an ideal can never quite translate into reality. So much the worse then, if two ideals can find themselves in conflict; if, perhaps by the EU’s own actions, a choice must be made between respecting democracy or respecting rule of law. It is suggested that the recent actions of the Court of Justice of the European Union, specifically the (European) Court of Justice (ECJ), in extending the legal doctrine of primacy to provide a remedy of nullity, have put Europe into exactly such a conflict.

 

Primacy (or supremacy) of European law is an old concept. In its essence, it has been set out by the ECJ in the revolutionary Flaminio Costa v ENEL decision. As this was at the outset of the EU’s existence, the Court was looking for a way to give effect to EU law so that it would not just be overridden by Member States’ provisions.[2] The solution found was that if there was a conflict between domestic and EU legislation, the domestic provision would simply not be applied by the national judge, who would instead seek to apply the appropriate EU provision. In the ECJ’s own words:

 

“Every national court must, in a case within its jurisdiction, apply [Union] law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it.”[3]

The key words here are ‘set aside’. A law, even if set aside, will by implication continue to exist and shall certainly be applied by national courts to the extent of compatibility of EU law. This leads us to the second implication that a domestic court may just as well perceive itself as deciding in which cases primacy is appropriate. Of course, such a position is inconsistent with Union goals, rejected by the ECJ and the EU Commission, but supported by the opinions of Member States’ highest courts: supremacy is limited and that limit is assessed by domestic courts.[4] While this may seem a fatal paradox, with both sides perceiving the authority of the EU legal system completely differently, it has been the way that things have worked for almost the entirety of EU’s existence. Controversies arose if one side tried to push its position too far, but generally the system has worked well enough not to cause a major dispute.[5] In simplified terms, a balance was kept between democracy and rule of law: domestic courts protected the will of their people by ensuring that some decisions of the elected legislative bodies would be preserved, especially if they were of a constitutional nature, while the ECJ fought for the rule of law that EU law reasonably required to have effect.

 

That balance is now challenged by some of the recent case law. It seems that the ECJ is pushing towards a more extreme remedy than one of mere disapplication: a remedy of nullity, where it could hold national acts as void, meaning they would be of no legal effect even in the domestic system. Yet, despite the radical consequence, the earliest such case seemed modest in its outcome. Berlusconi[6] dealt with very specific national acts, in particular those administrative measures which result in Union measures and without which those EU measures could not exist. The issue is whether in such cases the ECJ can not only rule over the legality of the final Union legislation, but also the preparatory domestic act. According to Michael Dougan, a Professor of European Law, a broad interpretation of the Berlusconi decision would be that:

 

“For the first time, the Court would have claimed the power both to assess and to determine for itself the lawfulness of certain national acts, and to do so not just in the declaratory sense of enforcement proceedings, but also for the purposes of the Member State’s own legal system – thereby creating an exception to the fundamental principle that the Union courts exercise exclusive jurisdiction directly over the legality of Union acts, while the national courts exercise exclusive jurisdiction directly over the lawfulness of domestic acts.”[7]

 

It was this broader interpretation which was confirmed by the latter case of Rimšēvičs.[8]There the Court asserted its power to annul decisions relating to the functioning of domestic central banks which would be inconsistent with national obligations to the European System of Central Banks (ECSB).[9] Admittedly, in both cases the ECJ is dealing with such a limited range of highly specific national acts that the implications are minuscule. What matters for our present purposes is the apparent remedy, which appears to go further than we have witnessed in the past. That remedy may not appear as extreme when dealing with situations when the Member States and the Union are practically acting as a single operating body – whether in monetary policy under the ECSB system as in Rimšēvičs or when a Member State requests some EU provision in an administrative context as in Berlusconi. The real problem arose when the doctrine has been extended much further. 

 

Much has been said about the EU-Poland conflict over rule of law concerns. The discussion seems to focus more on political rather than legal implications. What seems to evade the discussion is the expansion of the ECJ’s power as a result of the crisis. In a case related to the independence of the Polish judiciary, the ECJ ruled that if a decision was made by a judge appointed in a way inconsistent with EU requirements, then that decision would be void and no provision in the domestic system could prevent this.[10] It would appear that this is a case which propels the classic primacy conflict into new heights. After all, if European courts can make national provisions null and void if they deem them to be made by false judges and it is the ECJ itself which rules over whether a person is a valid judge, then in effect the EU has assumed complete authority over all national legislation. The remedy of nullity has seemingly been developed to ensure the rule of European law over national law, whether that concerns the banking system, administrative measures or any other legislation. It matters not that a government is implementing a manifesto it has been elected on: the unelected ECJ is supposed to exercise the ultimate decision-making power. That approach invites no other conclusion than the rule of (EU) law triumphing democracy.

 

The primacy debate between the ECJ and domestic courts has always had troubling implications for democracy. It is suggested that the development of the new doctrine of a remedy of nullity has pushed this struggle to a dangerous brink. It would seem that the ECJ is intent on ensuring the rule of its own law above any other domestic legislation, which it claims to be able to nullify despite its enactment by elected representatives. Thus, rule of law has become a cover for an undemocratic legislative and decision-making process in Europe.

 

Table of Cases

 

Amministrazione delle Finanze dello Stato v Simmenthal SpA (Case 106/07) [2005] ECR 1978-00629

Costa v ENEL (Case 6/64) [1964] ECR 594

Criminal proceedings against Silvio Berlusconi and Others (Joined Cases C-387/02, C-391/02 and C-403/02) [2005] ECR I-03565

Ilmārs Rimšēvičs and European Central Bank v Republic of Latvia (Joined Cases C-202/18 and C-238/18) EU:C:2019:139

Solange II (22 October 1986) BVerfGE 73, 339, [1987] 3 CMLR 225

 

Bibliography

 

Consolidated Version of the Treaty on European Union [2008] OJ C115/17

Dougan M, ‘The Primacy of Union Law Over Incompatible National Measures: Beyond Disapplication and Towards a Remedy of Nullity?' [2022] 59(5) CMLR 1312

 

[1] Consolidated Version of the Treaty on European Union [2008] OJ C115/17

[2] Case 6/64 Costa v ENEL [1964] ECR 594

[3] Case C–106/07 Amministrazione delle Finanze dello Stato v Simmenthal SpA [2005] ECR 1978 -00629 [21]

[4] Solange II (22 October 1986) BVerfGE 73, 339, [1987] 3 CMLR 225; 

[5] In regards to such ‘pushing’ see: Case C–106/07 Amministrazione delle Finanze dello Stato v Simmenthal SpA [2005] ECR 1978 -00629; Solange II (22 October 1986) BVerfGE 73, 339, [1987] 3 CMLR 225

[6] Joined Cases C-387/02, C-391/02 and C-403/02 Criminal proceedings against Silvio Berlusconi and Others [2005] ECR I-03565

[7] Michael Dougan, ‘The Primacy of Union Law Over Incompatible National

Measures: Beyond Disapplication and Towards a Remedy

of Nullity?' [2022] 59(5) CMLR 1312

[8] Joined Cases C-202/18 and C-238/18 Ilmārs Rimšēvičs and European Central Bank v Republic of Latvia EU:C:2019:139

[9] Ibid.

[10] Dougan (7)