Article title The Doctrine of Primacy of European Union Law: National Dimension (Position of Constitutional Courts of Particular EU Member States)
Authors

PhD in Law, Senior Researcher Lviv Laboratory of Human Rights, Associate Professor of the Department of the Fundamentals of Ukraine’s Law Ivan Franko National University of Lviv (Lviv, Ukraine) ORCID ID: https://orcid.org/0000-0002-2662-3076  halyna_dovhan@o2.pl)

 

Name of magazine Legal journal «Law of Ukraine» (Ukrainian version)
Issue 11/2019
Сторінки [98-107]
DOI https://doi.org/10.33498/louu-2019-11-098
Annotation

Currently, there is no uniform perception of the doctrine of primacy of European Union (EU) law in the Member States. In practice, coexistence of the EU legal system and a national legal system entails numerous legal conflicts. Among other things, this concerns the correlation between different legal acts of the EU and national legislation.

While the European Court of Justice consistently develops the doctrine of primacy of EU law, constitutional and supreme courts of many EU Member States uphold the primacy of the Constitution in the national legal order. This paves the way to a potential conflict between the European Court of Justice and constitutional courts.

The aim of the article is to analyze the positions of particular constitutional courts of the EU Member States regarding the perception of the doctrine of primacy of EU law at the national level. The main provisions of decisions passed by some constitutional courts are given in the author's translation from English and Polish. The European Court of Justice adheres to the monistic concept of the correlation between EU law and law of EU Member States.

The European Court of Justice’s position is unequivocal: absolute precedence of EU law over all and any national norms, without exception, with a view to ensuring the unity and efficiency of EU law. This approach has even entailed the need to amend some constitutions of EU Member States.

In an effort to ensure the primacy of the Constitution in the national legal order, increasingly more constitutional courts are setting the limits of EU law application. Thus, they demonstrate that, in the national dimension, the doctrine of primacy of EU law is limited: EU law does not take precedence over all sources of national law. Most constitutional courts include the following into the limits of EU law application in the national legal order: human rights, EU competence (ultra vires review) and the State’s constitutional identity.

The group of national courts consistently adhering to the position about the limited scope of the primacy of EU law is headed by the Federal Constitutional Court of the Federal Republic of Germany, which is the biggest opponent of the European Court of Justice as regards the interpretation of the doctrine of primacy of EU law.

Most constitutional courts, unlike the European Court of Justice, see the basis for the doctrine of primacy of EU law in the provisions of national constitutions, which permit to delegate a portion of authority granted to governmental bodies to the supranational level, rather than in the provisions of the EU founding treaties.

 

Keywords primacy of European Union law; constitutional identity; European Court of Justice; primacy of the Constitution; Constitutional Tribunal of the Republic of Poland
References

Bibliography

 

Authored books

1.Mik C, Europejskie prawo wspólnotowe. Zagadnienia teorii i praktyki (2000) (in Polish).

2.Journal articles 2. Dovhań H, ‘Tożsamość konstytucyjna w acquis constitutionnel Sądu Konstytucyjnego Republiki Włoskiej: sprawa Taricco’ [2018] 7(154) Europejski Przegląd Sądowy 11 (in Polish).

3. Dovhan H, ‘Mezhi dii pryntsypu verkhovensta prava ES shchodo konstytutsii: acquis constitutionnel Konstytutsyjnogo Trybunalu Polshchi’ [‘Limits to the Principle of Primacy of EU Law over the Constitution: Acquis Constitutionnel of Constitutional Tribunal of Poland’] (2017) 138 Problems of Legality 202. DOI 10.21564/2414990x.138.108326 (in Ukrainian).