26 Mai 2020

National Courts Cannot Override CJEU Judgments

A Joint Statement in Defense of the EU Legal Order

The European Union is a community based on the rule of law. The EU legal order is the backbone that holds the EU together, and the German Federal Constitutional Court’s ruling in Weiss poses a profound threat to that legal order. This threat goes far beyond the potential consequences of the Weiss ruling for European monetary policy. We write this statement to express our shared view that the German Court’s (Bundesverfassungsgericht – BVerfG) assertion that it can declare that a CJEU judgment “has no binding force in Germany” is untenable and must be forcefully rejected. We also write to challenge those versions of scholarship on constitutional pluralism and constitutional identity that would defend the authority of the BVerfG or any national court to make such a ruling and that helped (even if unintentionally) encourage it to do so.

In recent decades, scholars developed the concept of constitutional pluralism as a way to resolve the impasse between the Court of Justice of the European Union (CJEU) and national constitutional courts, such as the BVerfG, over questions of legal supremacy (Kompetenz-Kompetenz). The central question in that long standing dispute concerns which court should have the final say in resolving conflicts between EU law and national constitutional law.  Scholars of constitutional pluralism maintain that there is no need for a definitive answer as to which court would have the final say, as tensions over rival claims of superiority could be resolved through judicial dialogue and norms of tolerance and accommodation.

The BVerfG ruling in Weiss – and the immediate reaction to that ruling by the autocratic regimes in Hungary and Poland – demonstrates the inherent limits of this optimistic vision. Let’s face it: constitutionalism pluralism can’t provide a practical, ultimate answer to the question at the heart of the Kompetenz-Kompetenz conundrum, as sometimes direct conflicts over who has the final say on disputes over conflicts between EU and national law are unavoidable.

Those signing this statement agree with constitutional pluralists that judicial dialogue is valuable – indeed it is integral to the functioning of the EU legal order. The Court of Justice itself has recognised that national courts and tribunals, in collaboration with the Court of Justice, fulfil a duty entrusted to them jointly of ensuring that in the interpretation and application of the Treaties the law is observed. We also agree that the CJEU and national constitutional courts should be guided by norms of mutual tolerance, forbearance, and accommodation wherever possible, striving to reconcile tensions between their legal orders on the basis of norms of comity.

In short, we are all sympathetic to constitutional pluralists’ desire to accommodate the legitimate concerns that some national constitutional courts may have about conflicts between EU law and inviolable aspects of their domestic constitutional orders. In fact, such concerns are enshrined in the founding treaties of the EU (esp. Articles 4 and 6, TEU). While there have been proposals to create new bodies that might arbitrate constitutional conflicts between the CJEU and national courts in the future, the law as it stands today is clear: no national court can overrule a CJEU judgment. Though we do not agree on all aspects of the constitutional pluralism debate, on one point we are unambiguously and emphatically united: it is unacceptable for a national court to declare that a CJEU ruling is not binding in its jurisdiction.  

As the Court of Justice has explained repeatedly since Costa, if national courts could override the Court of Justice, EU law would not be applied equally or effectively across all Member States and the entire legal basis of the EU would be called into question. Indeed, as the CJEU emphasized in its recent press release, the supremacy of EU law “is the only way of ensuring the equality of Member States in the Union they created.” States have delegated part of their sovereignty to the EU on conditions of reciprocity. If one of them could decide what EU law is for itself, it would be more equal than the others, and the EU legal order would quickly unravel as a result.

National constitutional courts, like the BVerfG, remain the sole guardians of their countries’ constitutional orders, including the safeguarding of inviolable, “eternal” elements of national constitutional identity. The BVerfG is perfectly correct about this, but it is entirely wrong about the remedy it should apply if it deems that the CJEU has made a ruling that violates its constitutional identity or is simply ultra vires. By historical analogy, the BVerfG’s ruling is reminiscent of the nullification doctrine invoked by the likes of Calhoun in the antebellum US, which would in essence allow member state courts to “pick and choose” which EU laws to respect – and which ones to disregard.

If a national constitutional court deems that an EU act or CJEU judgment clashes with its constitution, it cannot simply deem the act or ruling inapplicable in its jurisdiction. Rather, the court might seek to remedy the situation by “compelling their government either to amend their constitution, to seek to change the EU legal norm involved by working through the EU political process, or, if necessary, to withdraw from the Union altogether.” Those might seem like dramatic steps, but they are consistent with the EU’s status as a union of sovereign states, who have agreed – voluntarily – to be bound by EU law and to respect rulings of its Court of Justice so long as they remain members.   

Of course, most constitutional pluralists didn’t have in mind that national courts would engage in  such brazen disregard for the authority of the CJEU. They assumed that head-to-head conflicts could be avoided or worked out through dialogue and accommodation. The crisis created by the BVerfG’s Weiss judgment reminds us of a painful truth that many constitutional pluralists tried to wish away – that sometimes direct conflicts will occur. 

Finally, the reactions of the autocratic regimes in Hungary and Poland to the BVerfG’s judgment underscore another problem with constitutional pluralism – a point several of us have been making for some time – namely that constitutional pluralism and constitutional identity arguments are prone to abuse by autocrats and their captured courts. No one should be surprised by the fact that the governments of Hungary and Poland quickly seized on the BVerfG’s ruling as a basis for arguing that their (captured) constitutional courts could override the CJEU. This was entirely predictable and indeed predicted.

Our focus in this statement is not on the risks the BVerfG’s ruling poses for the ECB monetary policy. Rather, we want to emphasize that whatever one thinks of the ECB’s quantitative easing programs, or of the CJEU’s or BVerfG’s assessment of those programs, the notion that a national court can simply override a CJEU judgment is inadmissible. Allowing national courts to declare that CJEU judgments they deem unacceptable are inapplicable in their countries would destroy the EU legal order. This is true whether the national court in question is a respected, independent court in a healthy national democracy or the captured “court” of an autocratic member state (which may not even meet the standards to qualify as a court under EU law). Therefore the BVerfG’s assertion that the CJEU’s earlier ruling in Weiss was ultra vires and has no binding effect in Germany must be firmly rejected.

Authors:

R. Daniel Kelemen, Rutgers University

Piet Eeckhout, University College London

Federico Fabbrini, Dublin City University

Laurent Pech, Middlesex University

Renata Uitz, Central European University

Signatories:

Stefania Baroncelli, Free University of Bozen-Bolzano

Eva Brems, Ghent University

Tamara Capeta, University of Zagreb

Carlos Closa, Spanish National Research Council

Vlad Constantinesco, University of Strasbourg

John Cotter, Keele University

Antonio Estella,University Carlos III of Madrid

Diana Urania Galetta, University of Milan

Christoph Herrmann, University of Passau

Tomasz Koncewicz, University of Gdansk

Markus Kotzur, University of Hamburg

Ronan McCrea, University College London

Lina Papadopoulou, Aristotle University of Thessaloniki

Vasco Pereira da Silva, University of Lisbon

Vlad Perju, Boston College

Joël Rideau, University of Nice Sophia Antipolis

Wojciech Sadurski, University of Sydney

Eleanor Spaventa, Bocconi University

Juan Santos Vara, University of Salamanca

Ramses A. Wessel, University of Groningen

Marlene Wind, University of Copenhagen

Jacques Ziller, University of Pavia


SUGGESTED CITATION  Kelemen, R. Daniel, Eeckhout, Piet, Fabbrini, Federico, Pech, Laurent; Uitz, Renáta: National Courts Cannot Override CJEU Judgments: A Joint Statement in Defense of the EU Legal Order, VerfBlog, 2020/5/26, https://verfassungsblog.de/national-courts-cannot-override-cjeu-judgments/, DOI: 10.17176/20200527-013240-0.

33 Comments

  1. Peter Van Elsuwege Di 26 Mai 2020 at 17:07 - Reply

    An important and clear statement, to which I fully subscribe.

  2. Krystyna Warylewska-Kamuś Di 26 Mai 2020 at 18:55 - Reply

    Thank you for your statement, to which I fully subscribe.

  3. Dan Kelemen Di 26 Mai 2020 at 20:43 - Reply

    We encourage those who share our views to add their names and sign-on to our statement in the comment section. We also of course welcome comments from those who disagree with our statement.

  4. Simon Hansen Di 26 Mai 2020 at 22:25 - Reply

    One has to agree with the authors as far as they state that judgements of the CJEU cannot be overruled.

    However, this does not follow from the special position of the CJEU or the special nature of EU law, and certainly not from the primacy of EU law, but simply from the fact that there is no other court in the European legal system apart from the Court of First Instance and the CJEU. National courts, whether they are supreme courts or constitutional courts, operate in fundamentally different legal systems.

    The authors, like many others – also in this blog – fail to recognise that the legal system of the European Union exists only to the extent that it is established under international law by the European treaties, in particular the Treaty on European Union and the Treaty on the Functioning of the European Union. Consequently, the doctrine of the primacy of European law also only exists insofar as the member states have agreed upon this.

    Therefore, due to the nature of European law, which itself is only (derived from) international treaties, it is unavoidable that member states are able to disregard European law. There can only be a definitive solution and a definitive primarcy of European law once the European Union gains its own statehood (therefore the sovereigcy of the Member States ceases to exist).

    No other solution proposed would ultimately overcome the shortcomings that have led to the present situation:
    To the extent that there are complaints that a rule for the conflict of laws is missing, it should be noted that with the doctrine of the primacy of EU law such a rule exists. However, due to its nature as an international treaty (or at least derrived from one), the member states are not bound by the doctrine in their domestic law.
    Insofar as it proposed to establish a „court of jurisdiction/competence“, this would not solve the problem at hand: again, a member state could easily disregard the judgment of such a court.
    Even a provision in the respective national constitutions would not solve the problem, since constitutions are only national law and thus subject to the discretion of the member states.

    With regard to Germany, it should be pointed out that – and in this respect, I would like to treat the interpretation of the constitution of the Federal Constitutional Court as a fact and not discuss it – according to Article 79 (3) of the Basic Law, certain provisions and constitutional principles are not subject to change and therefore cannot be made amenable by way of an international treaty or by EU secondary law. A decision of the CJEU which violates these principles cannot be binding for the domestic constitutional court.

    In this context, it should be pointed out that the Federal Constitutional Court could not apply the remedy and legal consequences proposed by the authors. In the rules of proceeding pursuant to § 95 of the BVerfGG (Act on the Federal Constitutional Court), the Federal Constitutional Court can, in the case of actions, only declare that these actions violate the fundamental rights of the person concerned and, in the case of a law, declare the laws concerned null and void.

    The proposed remedy/consequence, the amendment of the German constitution, of EU law or the withdrawal from the EU are political decisions that a Court cannot – and at least to my oppinion should not – make. In this respect, the Federal Constitutional Court acted correctly in that it left the political decision on how to deal with an (irreconcilable) contradiction between the legal systems, which, moreover, results from the political decisions regarding the current legal construction of the Union, to politics.

    Finally, it should be pointed out that the Federal Constitutional Court based its decision precisely on an unalterable provision. In this respect, an amendment of the constitution is ruled out. What remains is therefore a (direct) change in EU law or withdrawal from the EU.

    • Kristaps Tamuzs Mi 27 Mai 2020 at 08:42 - Reply

      Dear Mr. Hansen,
      Your argument appears to overlook the existence of Article 27 of the Vienna Convention on the Law of Treaties. Even if one were to agree to the proposal that the EU is nothing more than a treaty-based system (which is difficult to agree to), the fact would remain that Germany has undertaken international obligations and may not invoke its domestic law in order to avoid those obligations. One of the obligations undertaken by Germany is respecting the primacy and supremacy of EU law.

      • Interessted Reader Mi 27 Mai 2020 at 12:00 - Reply

        I am fairly certain that Germany has never undertaken an obligation to

        respect the primacy and supremacy of EU law, even if that would violate core principles of the German constitution.

        The CJEU might be of the opionion that Germany did that by signing the respective treaties etc. (which themselves do not contain any wording as „powerful“ as primacy (that one at least made it into the Declarations) and supremacy), but the BVerfG has stated in the past that that is not the case (as that would be impossible under the German constitution).

        • Kaffeesatzleser Do 28 Mai 2020 at 09:38 - Reply

          Please read Articles 267 and 344 TFEU. It is utterly clear from these articles that the ECJ has jurisdiction to rule on the validity of acts of secondary law. Germany consented to these rules. There is no rule in German constitutional law which would prevent Germany from fulfilling those treaty obligations.

      • Patrick Dahm Mi 27 Mai 2020 at 13:02 - Reply

        How is article 27 of the Vienna Convention on the Law of Treaties relevant? The article s