Beijing Law Review
2013. Vol.4, No.2, 71-76
Published Online June 2013 in SciRes (http://www.scirp.org/journal/blr) http://dx.doi.org/10.4236/blr.2013.42009
Copyright © 2013 SciRes. 71
National Sovereignity and the Principle of Primacy in EU Law
and Their Importance for the Member States
1University of Vienna, Vienna, Austria
2Max Planck Institute for International, European and Regulatory Procedural Law, Luxembourg
Received April 5th, 2013; revised May 6th, 2013; accepted May 14th, 2013
Copyright © 2013 Verica Trstenjak. This is an open access article distributed under the Creative Commons At-
tribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the
original work is properly cited.
The principle of primacy of the EU law has been in force for almost 50 years and belongs to the funda-
mental principles of EU law. It signifies that in case of a conflict between EU law and the law of the
Member States, the EU law prevails. Its fundamental goal is to assure a unified and effective application
of EU law in all Member States. The principle of primacy has been established by the case law of the
Court of Justice of the European Union. This article discusses the principle of primacy, as developed by
the Court of Justice of the European Union, and focuses on its importance for the Member States. The le-
gal theory divides Member States into three groups with regard to what their position on the primacy of
EU law in relation to the national constitution is: Member States that acknowledge full primacy, Member
States that acknowledge limited primacy of EU law in relation to the national constitution, and Member
States that principally assume primacy of the national constitution over EU law. Within the context of the
European hierarchy, the constitutional courts of the Member States are left with the central role and power
of review of constitutionality, but it remains to be seen whether in future more constitutional courts will
enter a dialogue with the Court of Justice of the European Union in the form of a preliminary ruling pro-
Keywords: Principle of Primacy; EU Legal Order; Direct Effect; National Sovereignty; Court of Justice of
the European Union; Preliminary Ruling Procedure; Constitutional Law; International Law;
The EU legal order represents one of the biggest legal orders
in the world and EU law is one of the most connecting factors
in Europe today. Account must be taken of the fact that the
European Union currently includes 27 Member States (from
July 2013 on, it will include 28 Member States as Croatia will
accede to the EU) and has 500 million inhabitants. The EU
legal order thus connects countries of both civil and common
law system. It is in force in an area with 23 official languages,
in which all acts are translated to. In order for such a legal order
to function within a union that is neither a state nor a real fed-
eration, certain legal principles needed to be established. The
principle of primacy is one of these principles.
The principle of primacy of EU law has been in force for
almost 50 years. During this period, it has received a lot of
attention not only on the level of the EU, but also from the
part of Member States. For the principle of primacy of EU
law interferes with one of the elements of the national sover-
eignty; if generally, the maxim regnum regno non praescribit
leges applies, this does not hold good in relation between EU
and Member States.
The present article discusses the principle of primacy, as it
was established and developed by the Court of Justice of the
European Union (hereinafter referred to as: CJEU) in Lux-
emburg, and it focuses on the role of Constitutional Courts of
the Member States, related thereto.
The Main Features of the EU Legal Order
As the CJEU stated in its famous judgment van Gend & Loos,
the EU constitutes a new legal order of international law for the
benefit of which the Member States have limited their sover-
eign rights, albeit within limited fields, and the subjects of
which comprise not only Member States but also their nation-
als1. The EU legal order consists of so-called “primary law”,
which comprises the leading principles and rules, and “secon-
dary law”, which is made up of legal acts of the institutions of
the EU. Since the legislative competences of the EU institutions
are specified in primary law, those competences must be exer-
cised in conformity with it. It follows that, from this point of
view, secondary Union law is subordinate to primary Union
law. Primary law is laid down in the Treaty on European Union
(hereinafter referred to as: TEU), the Treaty on the Functioning
of the European Union (hereinafter referred to as: TFEU), the
Treaty establishing a European Atomic Energy Community
1Judgment from 5 February 1963 in Case 26/62, van Gend & Loos 
*Former Advocate Gen eral at European Court of Justice, Luxembourg.
(hereinafter referred to as: EAEC Treaty), the protocols to those
Treaties, as well as in the Charter of Fundamental Rights of the
European Union. Although Article 6 (2) TEU now expressly
provides for the possibility for the EU to accede to the Euro-
pean Convention for the Protection of Human Rights and Fun-
damental Freedoms, such accession has not yet taken place.
The EU institutions create secondary Union law by adopting
the legal acts set out in Article 288 (1) TFEU, in particular
regulations and directives. The most important difference be-
tween regulations and directives is that regulations are binding
in their entirety and are directly applicable in all Member
States.2 By contrast, directives are binding upon the Member
States to which they are addressed as to the result to be
achieved within the set deadline, but they leave to the national
authorities the choice of form and methods3.
One of the central actors within the EU legal system is the
Court of Justice of the European Union (CJEU) in Luxemburg,
whose main task is to ensure that in the interpretation and ap-
plication of the EU Treaties the law is observed4. Disputes can
be brought before the CJEU under different procedures. The
most important procedures concern actions introduced by the
European Commission for infringement of Union law by a
Member State according to Article 258 TFEU as well as re-
quests of courts or tribunals of the Member States to give pre-
liminary rulings on the interpretation of Union law or the valid-
ity of acts adopted by the institutions according to Article 267
TFEU. In this context, the preliminary rulings procedure en-
ables the CJEU to enter into a structured dialogue with the na-
tional courts and tribunals of the Member States, who are nor-
mally the first place for citizens to go to in order to have their
rights derived from EU law taken into consideration (see von
Danwitz, 2010; for a critical analysis of the impossibility for an
individual seeking to enforce rights flowing from EU law to
appeal to a Union court in order to enforce those rights, see
Basedow, 2010a; Basedow, 2010b). Where a relevant question
about the interpretation of the EU Treaties or about the validity
and interpretation of secondary Union law is raised before a
court or tribunal of a Member State, that court may, or, when it
is a court of last resort, must request the CJEU to give a ruling
thereon by way of the preliminar y rulings procedure.
The Relationship between EU Law and
The Principle of Primacy
The principle of primacy of EU law (for the use of the ex-
pression supremacy, see e.g. Craig & De Búrca, 2007; for the
use of the expression primacy, see e.g. Lenaerts & Van Nuffel,
2005; on conceptual differences between the two expressions,
see Avbelj, 2011b)5 (Grundsatz des Vorrangs des Unionsrechts,
principe de primauté du droit de l’UE) belongs to the funda-
mental principles of EU law. It signifies that in case of a con-
flict between EU law and the law of the Member States, EU
It should thereby be stressed that the principle of primacy
does not signify that the CJEU can invalidate the national law,
which conflicts with EU law. It rather means that in case of a
conflict between national law and directly effective EU law,
which cannot be solved by consistent interpretation of national
law, national courts of the Member States must apply EU law
instead of the national law (see also Lenaerts & Van Nuffel,
2011). In this context, questions of direct effect of EU law also
play an important role, in particular with regard to directives
(see e.g. Craig & De Búrca, 2007; Opinion of Advocate Gen-
eral Trstenjak in Case C-282/10, Dominguez).
The principle of primacy was not written down in the found-
ing Treaties of the EU, but was established by the case-law of
the CJEU. Even today, the principle of primacy is not yet em-
bodied in the positive EU-law (meaning that it is not encom-
passed either in the TFEU or in the TEU) (with regard to the
absence of an explicit record of the principle of primacy in
TEU or TFEU see Lenaerts & Van Nuffel, 2011). Nevertheless,
it has been valid since 1964. In the planned Treaty establishing
a Constitution for Europe, an explicit embodiment of this prin-
ciple in the positive law was foreseen6. However, this Treaty
did not enter into force and it was replaced by the Treaty of
Lisbon7, which does not contain an explicit reference to the
principle of primacy. Thus, only a Declaration8 concerning pri-
macy annexed to the Treaty of Lisbon and adopted in 2007 by
the Intergovernmental conference which adopted the Treaty of
Lisbon, refers to the principle of primacy9. The Declaration
further refers to an Opinion of the Legal Service of the Council
on the primacy of EU law from 200710.
In accordance with the mentioned Declaration, the EU Trea-
ties and the EU law in general thus take, in accordance with the
settled case-law of the CJEU, primacy over the law of the
Member States. As mentioned, the Declaration takes further
reference to an opinion of the Legal Service of the Council,
6See Article I-6 of the Treaty establishing a Constitution for Europe, titled
“Union law”, which provided: “The Constitution and law adopted by the
institutions of the Union in exercising competences conferred on it shall
have primacy over the law of the Member States.”
7Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community, signed at Lisbon, 13 December 2007
OJ 2007 C 306/1. The Treaty of Lisbon amended the Treaty on European
Union as well as the Treaty establishing the European Community and
renamed the latter Treaty on the Functioning of the European Union. The
Treaty of Lisbon thereby replaced the existing European Community and
Europea n Union by a new European Union.
8Contrary to the protocols to the EU Tre aties, the declarations to the Treaties
are not binding. However, they can be taken into account by the CJEU when
interpreting the corresponding articles of the Treaties; see Lenaerts & Van
9Declaration concerning primacy is the 17th declaration, annexed to the
Final Act of the Intergovernmental Conference which adopted the Treaty o
Lisbon; it is published in the OJ of the EU C 83, 30 March 2010, p. 344. It
states: “[T]he Conference recalls that, in accordance with well settled case
law of the Court of Justice of the European Union, the Treaties and the law
adopted by the Union on the basis of the Treaties have primacy over the law
of Member States, under the conditions laid down by the said case law.”
10Opinion of the Council Legal Service of 22 June 2007 from the document
11197/07 (JUR 260) states: “It results from the case-law of the Court o
Justice that primacy of EC law is a cornerstone principle of Community law.
According to the Court, this principle is inherent to the specific nature of the
European Community. At the time of the first judgment of this established
case law (Costa/ENEL, 15 July 1964, Case 6/64 [*]) there was no mention
of primacy in the treaty. It is still the case today. The fact that the principle
of primacy will not be included in the future treaty shall not in any way
change th e existence of th e principle an d the existing case-law of th e Court
of Justice.” The following note is added to the reference [*] to the judgment
in Costa/ENEL, Case 6/64: “It follows […] that the law stemming from the
treaty, an independent source of law, could not, because of its special and
original nature, be overridden by domestic legal provisions, however framed
without being deprived of its character as EU law and without the legal
basis of the Union itself be i ng called into questio n . ”
2See Article 288 (2) TFEU.
3See Article 288 (3) TFEU.
4See Article 19 (1) TEU.
5In the literature, the principle of primacy of EU law is referred to also as the
rinciple of supremacy of EU law .
Copyright © 2013 SciRes.
which clearly identifies the principle of primacy as a corner-
stone principle of the EC law (now EU law) and states that the
fact that the principle of primacy would not be included in the
Treaty of Lisbon does not change the existence of the principle
and the existing case-law of the CJEU.
The Principle of Primacy in the Earlier Case-Law of the
The CJEU established the principle of primacy already in
1964 in case 6/64, Costa v ENEL. The case 6/64, Costa v
ENEL related to the question of conformity of the Italian law
on nationalizing an undertaking for production and distribution
of electricity11 with provisions of the then Treaty establishing
the European Economic Community (hereinafter referred to as:
EEC Treaty)12. The CJEU explained in the judgment that EU
law forms an integral part of the national legal systems, which
the national courts are bound to apply. The obligations of the
Member States that arise for them from EU law would however
be incomplete, if Member States could override them with the
national provisions, “however framed”13. Therefore the national
legislation cannot prevail over EU law14.
The principle of primacy was further shaped by the CJEU in
its case-law, which followed some years after the case 6/64,
Costa v ENEL. Thus, the CJEU clarified in the case 11/70, In-
ternationale Handelsgesellschaft that the legal nature of the
national measure has no relevance to the question of primacy of
EU law (see also Craig & De Búrca, 2007) and that fundamen-
tal rights, guaranteed by the constitution or the principles of a
national constitutional structure cannot call into question the
primacy of EU law15. Although the precedence of EU law over
any national provision follows already from the judgment in the
case 6/64, Costa v. ENEL (see also Grabenwarter, 2010), in the
case 11/70, Internationale Handelsgesellschaft the CJEU ex-
plicitly confirmed priority of EU law over a provision of a na-
tional constitution, including those, which guarantee funda-
mental rights (Grabenwarter, 2010).
In the case 106/77, Simmenthal, the CJEU stressed that the
use of the principle of primacy does not depend on the question
whether a national provision was adopted before or after the
relevant provision of the EU law, and that in case of a conflict
between the national law and the EU law, every national court
must give priority to EU law16. The national court must refuse
to apply the national provision conflicting with EU law, with-
out it being “necessary for the court to request or await the prior
setting aside of such provisions by legislative or other constitu-
tional means”17. A national court must thus immediately give
effect to EU law (see also Craig & De Búrca, 2007). Further,
the principle of primacy concerns also the national legislator by
prohibiting it to adopt new national legislation, which would
conflict with EU law (see also Craig & De Búrca, 2007; Avbelj,
With regard to the principle of primacy, two of its further
characteristics should thus be set out. On the one hand, the
principle of primacy applies regardless of the position of the
national provision in the hierarchy of the national law (see
Schweitzer, Hummer, & Obwexer, 2007; Lenaerts & Van Nuf-
fel, 2011; Craig & De Búrca, 2007). In practice, this signifies
that the EU law prevails even over the national constitutions of
the Member States, thus also for example if the national consti-
tution conflicts with an EU directive.
On the other hand, EU law prevails also over the subse-
quently adopted national law. A Member State can therefore
not exclude the application of EU law by subsequent national
law, which conflicts with EU law, as the application of lex
posterior derogat legi priori in relation between the EU law and
the national law would render the achievement of the goals of
the Union impossible (Craig & De Búrca, 2007; Avbelj, 2011a).
The fundamental goal of the principle of primacy is thus to
assure a unified and effective application of EU law in all
The Constitutional Courts of the Member States
and Their Relationship with EU Law and the
Relation of the Constitutional Courts of the Member
States to the EU Law and to the CJEU
The preliminary ruling procedure, regulated in Article 267
TFEU, represents a means of cooperation of the national courts
of the Member States with the CJEU (see also Craig & De
Búrca, 2007). In relation to the CJEU, the practice of the con-
stitutional courts of different Member States shows some im-
portant differences with regard to making references for a pre-
With regard to submitting the references for a preliminary
ruling under Article 267 TFEU the Belgian Constitutional
Court (Grondwettelijk Hof van België/Cour constitutionnelle de
Belgique), which has made already over 10 references19, has
been the most active. References for a preliminary ruling have
been made, among others, also by the Austrian Constitutional
Court (Verfassungsgerichtshof Österreich)20, the Italian Con-
stitutional Court (Corte costituzionale della Repubblica Ital-
iana)21, the Lithuanian Constitutional Court (Lietuvos Respub-
likos Konstitucinis Teismas)22 and the Spanish Constitutional
Court (Tribunal Constitucional de España)23.
Some constitutional courts seem to reject the possibility to
18Judgment from 19 March 1978 in Case 106/77, Simmenthal ECR
629 (para. 17).
19Thus e.g. in Case C-93/97, Fédération belge des chambres syndicales de
médecins  ECR I-04837; in Case C-305/05, Ordre des barreaux fran-
cophones et germanophone and Others  ECR I-05305; in Case C-212/
06, Government of Communauté française and Gouvernement wallon [2008
ECR I-01683; in Case C-73/08, Bressol and Others  ECR I-02735; in
Case C-236/09, Associa tion belge des Consommateurs Test-Achats and Others
not yet published in ECR; in Case C-197/11, Libert and Others; or in Case
C-375/11 Belgacom and Others.
20Case C-143/99, Adria-Wien Pipeline  ECR I-08365; Case C-465/00,
Österreichischer Rundfunk and Others  ECR I-04989; and Case C-
171/01, Wählergruppe’ Gemeinsam  ECR I-04301.
21Case C- 169/08, Presidente del Consiglio dei Ministri  ECR I-10821.
22Case C- 239/07, Sabatauskas and Others  ECR I-07523.
23Case C- 399/11, Melloni.
11In concrete, Law No 1643 of 6 December 1962 and the presidential de-
crees issued in execution of that Law.
12The EEC Treaty was amended by the Maastrich Treaty (Treaty on Euro-
pean Union, OJ C 191 of 29 July 1992), which entered into force on 1 No-
13Judgement of 15 July 1964 in Case 6/64, Costa v. ENEL  ECR 585,
15Judgment of 17 December 1970 in Case 11/70, Internationale Handelsge-
sellschaft  ECR 1 125 (para. 3).
16Judgment of 9 March 1978 in Case 106/77, Simmenthal  ECR 629
17Ibidem (operative part).
Copyright © 2013 SciRes. 73
refer questions to the CJEU. In this way, the German Constitu-
tional court (Bundesverfassungsgericht) has not yet made a
preliminary ruling reference and has generally a rather unfa-
vourable viewpoint as regards the primacy of EU law over the
constitutional norms. The Bundesverfassungsgericht is namely
of the opinion that its competence to judge on the conformity of
EU legal acts with the German Constitution (Grundgesetz), the
s.c. Basic Law (hereinafter referred to as: Grundgesetz) is intact
whenever EU law in general does not provide in essence an
equal level of protection of fundamental rights as the Grundge-
The legal theory divides Member States into three groups
with regard to what their position on the primacy of EU law in
relation to the national constitution is: Member States that ac-
knowledge full primacy, Member States that acknowledge lim-
ited primacy of EU law in relation to the national constitution,
and Member States that principally assume primacy of the na-
tional constitution over EU law (for further details, see Gra-
Examples of Some Preliminary Ruling References,
Related to the Questi on s of Pri m acy
Is a Priority of an Interlocutory Procedure for the Review
of Constitutionality in Accordance with EU Law?
Member States prescribe different procedural rules regarding
the way in which a preliminary ruling question may be ad-
dressed to the CJEU. Below, an example of France will be pre-
sented, where a procedure for the review of constitutionality
before the French Conseil Constitutionnel is given priority by
the legislation over the preliminary ruling procedure at the
CJEU24. Due to the question, whether this deprives the courts
of exercising their right or fulfilling their obligation under Arti-
cle 267 TFEU25, the question was dealt with also at the CJEU.
The CJEU dealt with this question in joined cases C-188/10
and C-189/10, Melki and Abdeli, on the basis of the references
for a preliminary ruling made by the French Cour de Cassation.
The main proceedings concerned Mr. Melki and Mr. Abdeli,
two Algerian nationals who were unlawfully present in France.
After a police control they were each subject of a deportation
order and a decision for continued detention. In the procedure,
they disputed the lawfulness of the control made on them and
alleged that the French Code of Criminal Procedure violates the
rights and freedoms guaranteed by the French Constitution,
because it is con t rary to EU law26.
When seized with the question by a lower court whether the
national legislation violates the rights and freedoms under the
Constitution and EU law, the Cour de cassation considered that
in the review of constitutionality procedure the Conseil Consti-
tutionnel would have to rule also on conformity of the Code of
Criminal Procedure with EU law and that in case of a positive
response, Article 62 of the Constitution27 would deny all courts
the opportunity to refer a question to the CJEU even after the
review of constitutionality procedure28. In these circumstances,
the Cour de Cassation referred a question to the CJEU whether
Article 267 TFEU precludes national legislation, such as that
resulting from Order No 58-106729, which establishes an inter-
locutory procedure for the review of constitutionality of na-
tional laws, requiring the French courts to rule as a matter of
priority on whether to refer to Conseil Constitutionnel a ques-
tion on whether a national law provision is consistent with the
Constitution, when at the same time the conflict of that provi-
sion with EU law is at issue30.
In the grounds of the judgment, the CJEU first referred to its
exiting case-law. It stressed that the lower national courts of the
Member States retain their right under Article 267 TFEU to
refer to the CJEU although a national rule binds them on the
points of law by the rulings of a superior court (as ruled e.g. in
Case 166/73, Rheinmühlen-Düsseldorf)31. It further reminded
that a national court is obliged to give full effect to EU law and
thus to disapply any conflicting provision of national legislation,
without it being necessary for this court to request or await the
prior setting aside of such provision by legislative or other con-
stitutional means (as ruled e.g. in Case 106/77, Simmental or
Case C-187/00, Kutz-Bauer)32. Lastly, it explained that accord-
ing to the existing case-law of the CJEU, an obligatory referral
of a matter to a constitutional court of a Member State does not
deprive the national court of its right or obligation under Arti-
cle 267 TFEU to refer to the CJEU questions concerning the
interpretation or validity of EU law (as ruled in Case C-348/89,
The CJEU concluded that the functioning of the system of
cooperation under Article 267 requires the national court to be
free to refer to the CJEU for a preliminary ruling. However, a
national law preventing the national court from immediately
disapplying a national provision which it considers to be con-
trary to EU law, is acceptable, if the national court remains free
to adopt measures of provisional judicial protection of the
rights conferred under EU law and “to disapply, at the end of
[…] an interlocutory procedure, that national legislative provi-
sion if that court holds it to be contrary to EU law.”34
24The priority question on constitutionality is defined in Article 61-1 of the
French Constitution, and in chapter II bis of Order No 58-1967 of 7 No-
vember 1958 on the organic law governing the Conseil constitutionnel (Or-
donnance n 58-1967, du 7 novembre 1958, portant loi organique sur le Con-
seil constitutionnel), as amended by the Organic Law No 2009-1523 of 10
December 2009 (Loi organique n 2009-1523, du 10 décembre 2009). The
priority nature is given to it by Order No 58-1967 as amended by the Or-
ganic Law No 2009-1523. According to Article 23-2 (2) of Order No 58-
1967, th e court or trib unal must, where pleas are made b efore it chal lenging
whether a legislative provision is consistent, first, with the rights and free-
doms guaranteed by the Constitution, and secondly, with France’s interna-
tional commitments, rule as a matter of priority on whether to submit the
question on constitutionality to the Conseil d’Etat or the Cour de cassation.
According to Article 23-5 (2) of Order No 58-1967, the Conseil d’Etat or the
Cour de cassation however must, where pleas are made before them chal-
lenging whether a legislative provision is consistent, first, with the rights and
freedoms guaranteed by the Constitution and, secondly, with France’s inter-
national commitments, rule as a matter of priority on the referral of the
question on constitutionality to the Conseil constitutionn el.
25See the judgment of 22 June 2010 in Joined Cases C-188/10 and C-189/10,
elki and Abdeli  ECR I-05667 (para. 47).
26Summarized from ibidem (para. 16, 17 and 19).
27Article 62 of the French Constitution determines that decisions of the
Conseil constitutionnel are binding on public and administrative authorities
28Summarized from the judgment of 22 June 2010 in Joined Cases C-188/10
and C-189/10, Melki and Abdeli  ECR I-05667 (para. 21 and 46). It
should be stressed that Conseil Constitutionnel and Conseil d’Etat held such
interpretation of the priority question on constitutionality procedure to be
wrong, these decisions being relied upon by the French government—see
udgment of 22 June in Joined Cases C-188/10 and C-189/10,
bdeli  ECR I-05667 (para. 33-36).
29See above Fn. 20.
30Judgment of 22 June 2010 in Joined Cases C-188/10 and C-189/10,
and Abdeli  ECR I-05667 (para. 31).
31Ibidem (para. 42).
32Ibidem (para. 43).
33Ibidem (para. 45).
34Ibidem (para. 52 in 53).
Copyright © 2013 SciRes.
Based on the above observations, the CJEU decided that Ar-
ticle 267 TFEU precludes a national legislation establishing a
priority interlocutory procedure for the review of constitution-
ality, if it prevents the national courts of a Member State to
refer questions to the CJEU for a preliminary ruling both before
the submission of a question on constitutionality and after the
decision of constitutional court on that question. However, a
national legislation establishing a priority interlocutory proce-
dure for the review of constitutionality is acceptable, if other
national courts 1) remain free to refer to make a preliminary
ruling reference at whatever stage of the proceedings they con-
sider appropriate (even at the end of the interlocutory procedure
for the review of constitutionality); 2) to adopt measures of
provisional judicial protection; and 3) to disapply, at the end of
such an interlocutory procedure, the national legislative provi-
sion at issue, contrary to EU law35.
The judgment of the CJEU has brought up numerous re-
sponses, particularly in France (see e.g. Marti, 2010; Sarmiento,
2010; Simon & Rigaux, 2010). The judgment is important es-
pecially because the CJEU further developed its case-law on
the relationship between the constitutional courts of the Mem-
ber States and the CJEU (see also Sarmiento, 2010). The CJEU
did not find the interlocutory procedure for the review of con-
stitutionality to be contrary to Article 267 TFEU in any event,
but has linked its conformity to fulfilment of the above-men-
tioned conditions. The theory stresses that in contrast to the
previous case-law, this judgment thus allowed interferences in
the procedure of making a preliminary ruling reference to the
CJEU (Sarmiento, 2010).
Unconstitutionality of a Law of a Member State,
Established by a Decision of the National Constitutional
Court in Relation to EU Law
Questions on the relationship between EU law and the na-
tional law also arise in situations, where a constitutional court
of a Member State has already judged on the constitutionality
of a certain law, which might also be contrary to EU law. In
this way, in a case discussed below, the Polish Constitutional
court (Trybunał Konstytucyjny) ruled the provisions of the na-
tional law to be incompatible with the Constitution, but de-
ferred the date on which these provisions would lose their
binding force. In these circumstances, the national court was
faced with the question whether the principle of primacy
obliges it to apply EU law (and not the provisions of national
law) before the judgment of the Trybunał Konstytucyjny on the
unconstitutionality of the national provisions comes into effect,
if these national provisions are incompatible with EU law36.
The CJEU dealt with this question in C-314/08, Filipiak,
where the preliminary ruling reference was made by the Re-
gional Administrative Court in Poznan, Poland (Wojewódzki
Sąd Administracyjny w Poznaniu). The main proceedings re-
lated to the Polish legislation, which did not allow for social
security contributions to be deducted from the basis of tax as-
sessment and for income tax to be reduced by the amount of the
health insurance contributions, if these contributions were paid
in another Member State, although they were not deducted in
the other Member State37. Although the Trybunał Konstytucy-
jny held the national provisions at issue to be not compatible
with the principle of equality and the principle of social justice,
set out in the Constitution, it decided to defer the date on which
the provisions held to be unconstitutional would lose all bind-
ing force. The Wojewódzki Sąd Administracyjny w Poznaniu,
which dealt with the case, considered it to still be necessary to
examine whether the provisions at issue are compatible with
Article 43 of the EC Treaty38 (now Article 49 TFEU) and re-
ferred a question relating to the interpretation of Article 49
TFEU to the CJEU39. In view of the judgment of the Trybunał
Konstytucyjny it referred also a question, asking whether the
principle of the primacy of EU law following from Article 4(3)
TEU40 and Article 49(1) and 49(2) TFEU41 must be construed
as taking precedence over the provisions of national Constitu-
tion, on the basis of which the entry into force of a judgment of
the Trybunał Konstytucyjny was deferred42.
With regard to the latter question, the CJEU explained in its
judgement that primacy of EU law requires a national court of a
Member State to refuse, if necessary, to apply a national provi-
sion, conflicting with a directly applicable provision of the
Treaty. A conflict between a national provision and EU law
however does not require a declaration that the national provi-
sion is invalid, nor does it render a national provision non-ex-
istent43. It is thus not surprisingly that the CJEU ruled that in
circumstances where EU law precludes national legislation,
“the primacy of [EU] law obliges the national court to apply
[EU] law and to refuse to apply conflicting provisions of na-
tional law, irrespective of the judgment of the national constitu-
tional court which has deferred the date on which those provi-
sions, held to be unconstitutional, are to lose their binding
The National Constitution of Member States in Relation to
the EU Directives and Primacy of EU Law
As it has already been mentioned, the principle of primacy of
EU law applies regardless of where in the hierarchy of the na-
tional law a national legal act is positioned. Thus, EU law takes
primacy also over the national constitution of a Member State,
including for example if the national constitution is in conflict
with an EU directive.
In this connection, the case C-285/98, Tanja Kreil should be
mentioned, as it has led even to an amendment of the German
Grundgesetz. The case results from a dispute that arose when
Ms. Kreil applied for a voluntary service in the Federal Armed
Forces (Bundeswehr), involving the use of arms. After her ap-
plication was rejected, she brought an action at the Administra-
tive Court in Hannover (Verwaltungsgericht Hannover). She
claimed that the rejection of her application, which was based
only on her sex, was contrary to EU law. Verwaltungsgericht
Hannover therefore referred a question to the CJEU for a pre-
liminary ruling, asking whether the German national legislation
infringes the Directive 76/207 on the implementation of the
principle of equal treatment for men and women as regards
access to employment, vocational training and promotion, and
38EC Treaty was amended by the Treaty of Lisbon (see FN 11), which en-
tered into force on 1 December 200 9.
39Summarized from Ibidem (para. 22).
40Before Article 10 EC Treaty.
41Before Article 43(1) in (2) EC Treaty.
42Judgement of 19 November 2009 in Case C-314/08, Filipiak  ECR
I-11049 (para. 26).
43Ibidem (para. 82-84).
44Ibidem (point 2 of the opera t ive part).
35Ibidem (point 1of the opera tive part).
36Summarized from the judgment of 19 November 2009 in Case C-314/08,
ilipiak  ECR I-11049 (para. 44).
37Summarized from Ibidem (para. 22 and 74).
Copyright © 2013 SciRes. 75
Copyright © 2013 SciRes.
working conditions45 (hereinafter referred to as: Directive 76/
207) by providing that women who enlist as volunteers may be
engaged in the Bundeswehr only in the medical and military-
music services and are excluded in any event from armed ser-
vice. The German Law on Soldiers (Soldatengesetz) and the
Regulations on Soldiers’ Careers (Soldatenlaufbahnverordnung)
had their basis in Article 12a of the Grundgesetz (for further
details, see Starck, 2005)46, i.e. the German Constitution, which
provided that men may be required to serve in the armed
forces47 and that women may on no account render service in-
volving the use of arms48.
The CJEU decided that the Directive 76/207 “precludes the
application49 of national provisions, such as those of German
law,50 which impose a general exclusion of women from mili-
tary posts involving the use of arms and which allows them
access only to the medical and military-music services.”51
Since the national legislation at issue was supported by a
provision of the Grundgesetz, the judgment of the CJEU in this
case confirmed the primacy of EU law over constitutional law
as well. The judgment was subject to several responses in the
literature (see e.g. Lenz, 2000; Köster & Schröder, 2000; Gör-
litz, 2002; Scholtz, 2000) and has also lead to an amendment of
the Grundgesetz52. The latter now provides in Article 12a (4)
that women should on no account be obliged to render service
involving the use of arms.
The principle of primacy remains one of the central pillars
for ensuring a uniform interpretation and application of EU law
in all Member States. In this regard, the crucial role of the na-
tional courts of the Member States, including the constitutional
courts, which they can play through a dialogue with the CJEU
and their application of EU law, should not be neglected.
Within the context of the European hierarchy, the constitutional
courts of the Member States are left with the central role and
power of review of constitutionality, but it remains to be seen
whether in future more constitutional courts will enter a dia-
logue with the CJEU in the form of a preliminary ruling proce-
Today, EU law is becoming one of the most connecting fac-
tors in the EU. However, in order for the law to be really effec-
tive and to ensure justice, courts are needed as well. For we no
longer live in the Golden Age, described in Ovid’s Metamor-
phoses, where justice existed without the laws and without the
courts. Today, we need the laws as well as the courts, and in a
uilt up legal system, only a synergy between the national
courts and the CJEU can lead to justice, legality and efficiency
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45Council Directive 76/207/EEC of 9 February 1976 on the implementation
of the pri nciple of equal tr eatment for men and wo men as regards acces s to
employment, vocational training and promotion, and working conditions (OJ
1976 L 39, p. 40).
46In Germany, the highest constitutional act is named Grundgesetz(Basic
Law) and n ot Verfassung (Constitution), which has historical reasons.
47Article 12a (1) of the Grundgesetz.
48Article 12a (4) last sentence, of the Grundgesetz, in text, valid in the time
of dispute, provided: “[Frauen] dürfen auf keinen Fall Dienst mit der Waffe
49Stressed by the author.
50Stressed by the author.
51Judgment of 11 January 2000 in Case C-285/98, Tanja Kreil  ECR
I-00069 (operative part).
52Article 12a (4) last sentence of the Grundgesetz now provides: “[Die
Frauen] dürfen auf keinen Fall zum Dienst mit der Waffe verpflichtet wer-